Prison Legal News: June 1993

The Evolution of Criminal Justice

By Sandy Judd

In twentieth century America, coerced confessions to criminal acts are not technically admissible as evidence in courts of law. Since the 1980's, however, a movement against the enforcement of such "technicalities" has developed within the federal courts. As more forms of questionable evidence become admissible, we must begin to ask ourselves if justice is being properly served. Although blatant physical torture is not yet regularly used, other techniques for obtaining confessions are common: promises of leniency, threats, isolation, sleep and food deprivation, forced nudity and other practices which serve to demoralize the accused. The validity of these confessions is highly questionable.

Most people today would agree that confessions to acts of witchcraft are mostly false, as the confessed acts are impossible. Nonetheless, in seventeenth century Europe many witch hunters obtained very high rates of confession to such acts. Some, such as Matthew Hopkins in England, did so without using obvious forms of torture which would have left physical marks or deformities. This is because it is not the pain that makes the person confess, but the loss of hope that accompanies it. All methods of coercing witchcraft confessions during this period had the underlying, though often unconscious, goal of demoralizing the accused witch; once this was accomplished, the confession always followed.

This is why these techniques are used today, not just to obtain confessions, but to break the spirit of anyone within the grips of the criminal justice system who proves to be a nuisance, and to break prisoners' ties to the community and thus limit public knowledge of what they are subjected to. While it is important to examine modern day uses of these methods in obtaining confessions, we can't ignore their use on already convicted prisoners, especially since convictions without confessions are more easily obtained now than in seventeenth century Europe.

Matthew Hopkins, English Witch-Finder General in 1645-6 used a method of obtaining confessions which proved quite effective: to induce a state of delirium in the accused to where she didn't know what she was confessing and often didn't remember it later. Elizabeth Clarke was ready to confess after three days and nights of " watching", which combined intimidation with sleep deprivation. A critic of Hopkins, John Gaule, described the procedure in 1646: "Having taken the suspected Witch, she is placed in the middle of a room upon a stool, or table, cross-legged, or in some other uneasy posture, to which if she submits not, she is then bound with cords; there she is watched and kept without meat or sleep for the space of 24 hours."

A famous modern case in which Hopkins style techniques were used, and one which involved a false confession to murder, is that a Randall Adams. The State of Texas sentenced Adams to death following a trial where the only evidence was the purchased testimony of witnesses and Adams' confession. Adams was unaware that he had signed a confession, as he had been deprived of sleep and food until he became delirious and no longer conscious of his actions. The effectiveness of this tactic is shown by Adams' previous refusal to sign a confession when investigators threatened him with a gun. All of this was exposed with the release of the film The Thin Blue Line. Had this film not been made, Adams would still be in prison.

This type of coercion, though, is most commonly applied today to prisoners who become politically active or are critical of authority. Adrian Lomax, who himself was recently put in a sensory deprivation control unit for writing an article which "encouraged disrespect" for a guard at the prison he was in, reported in a different article that a fellow prisoner at Waupun got three months in segregation for saying "burn it" as an American flag was being raised. Similarly, Amnesty International pointed out in its criticism of the isolation unit that it is used "to isolate and brutalize women for their political beliefs."

Matthew Hopkins wrote a pamphlet in 1647, in which he defended his practice by describing his method. He denied tying up his prisoners, walking and watching them, just as Lexington officials would certainly deny being brutal to their prisoners, but he did admit to isolating them and explained why: "When a witch is first found with teats, then she is sequestered from her house, which is only to keep her old associates from her, and so by good counsel brought into a sad condition — is brought to remorse and sorrow for complying with Satan so long — and then without any of the before mentioned hard usages or questions put to her, doth of her own accord declare what was the occasion of the Devils appearing to her." Here, as in Lexington, the goal is to demoralize the prisoner and then brainwash her into submission.

Another effective seventeenth century method of demoralizing accused witches was the practice of stripping them early in the investigation. In England this was usually done under the guise of a search for the devil's mark, or witch's teat, from which she nursed demons in the form of imps with her own blood. The Malleus Maleficarum, an early German witch hunting manual, encouraged stripping the accused prior to the first attempt at talking her into confessing. The justification was a witch-tailored version of the excuse usually given for stripping a prisoner: "And the reason for this is that they should search for any instrument of witchcraft sewn into her clothes; for they often make such instruments, at the instruction of devils, out of the limbs of unbaptized children, the purpose being that those children should be deprived of the beatific vision."

This tactic is most frequently used in modern times to discourage prisoner contacts with their families and other outsiders. One case involved a prisoner's sister who was stripped to her underwear after a visit, because she was suspected of passing marijuana to her brother during her visits. Although a guard was posted to watch the two during their visit and the searching guard felt under the visitor's bra, no marijuana was found. A 1991 case from Rhode Island concerned a prisoner's visiting daughter who was strip searched in retaliation for the prisoner's sarcastic remark that a high ranking prison official had supplied him with cocaine. In 1988 a prisoner's wife was subjected to a body cavity search without probable cause as a condition to visiting her husband. These women all won their cases in court, but the frequency of these cases indicates that strip searching of visitors is common, as most visitors are not likely to file suit.

Similarly, prisoners themselves are routinely subjected to strip searches as a condition to have visits. At the Washington State Reformatory, for example, prisoners are constantly observed during visits and are not allowed to leave the visiting room without terminating the visit. Nonetheless, they are strip searched following each visit and subjected to a visual anal search.

Another method of coercion that was common in witch cases was the use of the threat of torture. The Malleus suggests that if the judge can't convince the witch to confess (after stripping her), that he show her the implements of torture and try again to convince her. The principle can also be extended to the threat of further torture when torture has already been applied. Historian William Monter suggests that a major reason for the relative mildness of the Swiss witch trials is that the Swiss followed the restrictions in the Imperial law code, which placed a three day limit on torture. Many people were able to withstand severe torture without confessing because they knew that it would eventually end. This strongly supports the idea that it is not the pain which brings out the confession, but the sense of hopelessness. It can also help us to understand why modern prison officials are so eager to get past state limits on the length of time a prisoner can be placed in isolation. They do this by labeling it " administrative," as opposed to " disciplinary," segregation, making it conceivable for a prisoner to spend months, years or even his entire sentence in control units such as the IMU at Walla Walla.

The other side to this is the practice encouraged in the Malleus of granting false promises of leniency if the person were to confess, which, combined with threats of torture, proved to be a very successful measure. The effect is the same in modern times. A U.S. government report noted that in 1986, defendants pleaded guilty in 89% of cases resulting in conviction. This is because they are about 40% more likely to receive a prison sentence if convicted by a jury and three times as likely to receive life in prison or death. This is made very clear to them during the plea bargaining process. As in the seventeenth century, however, it is possible that promises of leniency in exchange for guilty pleas are false, as judges can, and often do, increase the sentence agreed upon by the prosecutor. At this point, the accused has already plead guilty and has lost his right to a jury trial.

Friedrich Spee, a former confessor to convicted witches, anonymously published a criticism of German witch trials in 1631, in which he showed that it was impossible for an innocent person not to be convicted. He took his audience through the judicial procedure with the hypothetical case of a woman named Gaia. At one point he says, "If Gaia does not die and some exceptionally scrupulous judge hesitates to torture her further without fresh proofs or to burn her without a confession, she is kept in prison and more harshly fettered, and there lies for perhaps an entire year to rot until she is subdued." This implies that in some cases women who withstood torture without confessing would confess after being kept in prison for long periods of time. Similarly, prisoners who insist on their right to a jury trial often change their minds after being held in jail for month after month. This is because the point at which the confession is made is not necessarily the point of greatest pain, but that of greatest despair.

To add particulate relevance to all this, let's look at one more modern case. Alexander Cockburn recently outlined this case in The Nation, which involved Clinton's new Attorney General, Janet Reno. When faced with a tough bid for re-election as a Florida prosecutor in 1984, Reno decided that she needed to have more convictions in her name, resulting in what is known as the Country Walk case. A couple who ran a day care center in a wealthy neighborhood were investigated for molesting children, but as in the case of Randall Adams, there was no reliable evidence against them, and a great deal of evidence in their favor. Rather than doing the rational thing and concluding that maybe they were innocent, though, Reno simply changed strategies, trying to divide the couple and get the woman to testify against her husband.

At this point nearly all of the previously mentioned techniques were used on this woman. She was imprisoned, placed in segregation, stripped and kept naked under the guise of a suicide watch, and threatened with further such treatment if she didn't confess and testify against her husband. After eight weeks of this, she was still insisting on her husband's innocence, so, as with Adams, they subjected her to countless hours of "good counsel" until she finally cracked. In her delirium, she stated, among other things, that her husband had hung her and their son up by their ankles, rubbed their legs with feces and placed snakes on their genitals. As many a witch had confided in Friedrich Spee that they had given false testimony in order to end the torture, this woman told the judge in her case that she was innocent but pleaded guilty "for her own good." She got a ten year sentence plus deportation, and her husband, who still maintains his innocence, got six life sentences plus 165 years. (Florida isn't running a prison system; it's running a mortuary.)

Critics of the seventeenth century witch trials were right when they claimed that a confession which is produced through torture cannot be trusted, whether that torture is blatant or subtle. This is something to keep in mind as we modern Americans get tougher on crime by eliminating the protections traditionally guaranteed to the accused and convicted.

How to Defend Against a Bill of Costs

By John Adams

I'm a prisoner at the Washington State Penitentiary. I've filed a few lawsuits over the years against prison officials, prison employees and prison conditions with some success.

Recently, I had a case dismissed on the state's motion for summary judgment. After the court granted the state's motion, Assistant Attorney General Carol Murphy filed a Bill of Costs against me for $284.10. In other words: I was being sued for my litigation. Federal Rules of Civil Procedure 54(d) covers cost of litigation for the prevailing party.

Recently, after my deposition was taken by AAG Douglas Carr in another lawsuit, Mr. Carr told me that "the Attorney General's Office is going to pursue costs in inmate lawsuits relentlessly." I believe that the Attorney Generals Office is on a campaign to deter prisoners from petitioning the courts by intimidating them into submission with a Bill of Costs. I've successfully defended against the bill of costs filed against me in my lawsuit, and here's how you can.

A bill of costs can be entered against you even though you were allowed to proceed In Forma Pauperis. See: Sales v. Marshall, 873 F.2d 115 (6th Cir. 1989). However, when a party claims indecency, "courts have required a determination of his or her capacity to pay the costs assessed." Sales, Id. At 120. Courts have looked at both the prisoner's trust account balance and his income in establishing the amount of payment. Smith v. Martinez, 706 F.2d 572 (5th Cir. 1983).

The burden is upon the plaintiff (you) to make the court aware that he is incapable of paying such costs. See: Gradner v. Southern Ry. SYS, 675 F.2d 949 (7th Cir. 1982). You can do this by attaching a statement of your trust fund account to your "Motion for Review of the Clerks Entry for Bill of Costs"; by telling the judge whether you have a prison job and how much a month your job pays; by pointing out to the court the little income you get is essential for "personal hygiene items" from the inmate store. Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991), (Court found that $46 per month was reasonable figure for prisoners to purchase needed personal hygiene items from inmate store).

Additionally, the court may look to the purpose of the rule, the litigation history of the party, good faith, and actual dollars involved. See: Weaver v. Toombs, 948 F.2d 1004, 10013 (6th Cir. 1991). If you have a history of filing "frivolous" law suits most likely the judge will order you to pay costs. The courts reason that costs serve as a deterrent to "frivolous litigators" because they will have to decide whether or not their complaint is more important than their having to pay for costs incurred as a result of their litigation filed in bad faith.

Don't let representatives of the Attorney General's Office intimidate you. If you have a legitimate complaint that prison officials are unwilling to work with you to resolve, exercise your constitutional right of access to the courts. See: Bounds v. Smith, 430 US 817, 821; 97 S.Ct. 1491 (1977).

(Editors Note: A recent tactic being used by the Washington AG's office is to try to increase the cost of litigation for pro se prisoner litigants in an effort to bankrupt us out of court. AAG Carr represented the DOC in a suit I filed. Among the tactics he tried in order to jack up my costs were: refusing to provide me with a copy of my deposition unless I paid $1.00 a page for it; charging me copying costs on discovery; making me pay for the phone bill on telephonic depositions and refusing to make non party witnesses available for deposition unless I paid subpoena witness fees. I was able to fend off all these efforts except for the subpoena fee issue. These are just sleazy tactics by the AG's office to try to gain tactical advantage and intimidate prisoners. PLN has reported cases in the past where efforts to recover IFP fees and costs have proven unsuccessful.)

WA Ad Seg Rules Create Liberty Interest

Tillman Farr was a prisoner at the Washington State Penitentiary (WSP) at Walla Walla. Prison officials placed Farr in Administrative Segregation (ad seg) based on information from confidential informants which claimed Farr and others were going to assault a guard. Based on this information Farr spent several months in the Intensive Management Unit (IMU). Farr filed suit under 1983 claiming his ad seg placement was in violation of his due process rights and done in retaliation for his having filed grievances and complaints against prison officials. The district court, magistrate Hovis, granted summary judgment to the defendants. While Farr lost his case the language of the ruling is very good, and will definitely be of assistance to Washington state prisoners.

The court began by noting that while prisoners have no constitutional right to use of a grievance system, they do have a constitutional right to petition the government for the redress of grievances. It is well established that prison officials may not retaliate against prisoners for exercising their constitutional rights. Thus, any act in retaliation for a prisoner's exercise of his protected rights would violate the constitution.

The court provided an extensive discussion of the relevant law governing the use of confidential informant testimony. It also distinguishes between the use of informant testimony at disciplinary hearings, as opposed to administrative segregation hearings. While due process does not require that the identity of confidential informants be revealed, at ad seg hearings, it does require that a determination be made as to its reliability. The reliability of the informant testimony can be established by:

  1. The investigator's oath as to the truth of the report containing confidential information and appearing before the disciplinary committee;
  2. Corroborating testimony;
  3. A statement by the hearing committee that they have firsthand knowledge of the information sources and have found them reliable in the past; or
  4. In camera review of material documenting the investigators assessment of the informant's credibility.

Submission of the confidential report for in camera review by the court allows the reviewing court to determine whether the hearing officer's actions were fair, i.e. whether the officer acted in an arbitrary and capricious manner by accepting confidential information without some indication as to the informant's reliability. Prison officials are not required to state the factual basis for their findings regarding confidential informants on the public record.

The court noted that the Supreme Court has held that there is no constitutional right for prisoners to remain out of segregation. However, such a right may be created by the states who promulgate regulations which substantially limit official discretion. This is the first published case dealing with Washington administrative segregation rules in this respect. The court ruled that the Washington Administrative Code (WAC) 137-32-005, in conjunction with WAC 137-32-001, creates a due process liberty interest for prisoners to remain out of segregation. The court gave an extensive and detailed discussion of the reasoning behind its decision, which will assist anyone trying to understand how states create due process liberty interests which can be enforced in federal court.

The state argued that no such liberty interest exists due to a recent decision in Smith v. Blodgett, 798 F. Supp 637 (ED WA 1992), which relied on an unpublished ninth circuit decision holding Washington ad seg rules did not create such a liberty interest. The court distinguishes this case from Smith by holding only Scott Smith is collaterally stopped from asserting a liberty interest in remaining out of ad seg. Because the ninth circuit ruling in question was unpublished it has no precedential value and cannot be cited or used by the state.

The court ruled against Farr on the merits of his claim. Namely, that after reviewing the informant statements in camera there was sufficient evidence for prison officials to find that Farr was a threat to prison security and needed to be held in IMU to protect the guard from the alleged assault plot. That Farr was never infracted or charged in a disciplinary hearing was held immaterial to this analysis. Farr is currently appealing the case to the ninth circuit. The state has filed a cross appeal seeking to overrule the lower court's decision holding that prisoners have a due process liberty interest in staying out of ad seg. See: Farr v. Blodgett, 810 F. Supp 1485 (ED WA 1993).

No Liberty Interest in BOP Ad Seg Rules

Howard Awalt is a federal prisoner. He was placed in administrative segregation (ad seg) pursuant to 28 C.F.R. 541.22 (a)(8) after prison officials received an anonymous note stating his life was in danger. He filed a Bivens action against prison officials claiming that his ad seg placement and denial of hearings under 28 C.F.R. 541.22 (c) and 541.23(b) violated his right to due process of law.

The district court dismissed Awalt's complaint on several grounds. It held that the complaint did not state any constitutional violations nor did it allege that any established rights had been violated by prison officials.

The court held that none of the BOP rules cited created a right to be returned to general population. "The language of 28 C.F.R., Sections 541.22 and 541.23 merely directs a procedure that staff are to follow within certain time frames when a prisoner does not wish to be confined in administrative detention. They do not create a liberty interest in release from detention which a hearing would protect."

The court also ruled that federal prisoners have no right or constitutionally protected interest in UNICOR job assignments or to earn good time credits in that assignment. See: Awalt v. Whalen, 809 F. Supp 414 (ED VA 1992).

Initiative 595: Regulated Tolerance

The citizens of Washington state will have a chance to make real progress in the area of drug law reform if the Washington Citizen's for Drug Policy Reform (WCDPR) is successful in getting Initiative 595 on the state General Election ballot this fall. It will be necessary to gather more than 181,000 signatures by July 2, 1993, to guarantee a spot on the November 3rd ballot.

Initiative 595 would allow adults to use marijuana in the privacy of their homes while providing strict controls to keep it out of the hands of those under the age of 21. Unlike legalization or decriminalization, this concept of "regulated tolerance" would prohibit any advertising, public use, or promotion of marijuana which is so common with "legal" drugs such as alcohol and tobacco. It is not the intent of WCDPR to encourage or condone the use of any substance.

The concept of regulated tolerance proposes a workable solution to the problem without the staggering costs of prohibition (it is estimated that this approach would generate approximately $250,000,000 for Washington state). It will also free up limited police resources to be better applied to the problem of serious violent crime. No longer will those suffering from AIDS, glaucoma, cancer and the many diseases which respond therapeutically to marijuana have to endure suffering or risk imprisonment in order to obtain the medicine they so desperately need.

The goal of regulated tolerance of marijuana is to remove the criminal penalties for its use while destroying the black market which flourishes as a natural result of prohibition. Unlike cocaine, heroin, and other drugs, marijuana can be produced safely and cheaply at home by anyone who chooses to do so, ending the necessity to make contact with the operators of the black market who often provide the nexus to other, more dangerous substances. As most marijuana users will attest, they have no interest in using dangerous substances like heroin or cocaine.

The safety of marijuana has long been established by exhaustive tests by government agencies as well as private concerns. Marijuana is so safe, in fact, that the DEA's own chief Administrative Law Judge proclaimed it to be "one of the safest therapeutically active substances known to man," and "far safer than many of the foods we commonly consume." This statement was made after months of hearings, during which testimony and evidence was presented both in favor and against the safety of marijuana. During this period, the DEA could not even convince their own Administrative Law Judge that marijuana was dangerous. In the respect that there has never been a reported death attributed to marijuana toxicity, it is far safer than even aspirin.

We as a nation, have experimented with "zero tolerance" over the past decade with less than desirable results. By the DEA's own estimation the drug war has succeeded in stopping only a tiny fraction of the drugs coming into this country with no prospect of better results in the future. We have spent hundreds of billions of dollars on this "war" against our fellow citizens only to see the black-market flourish, a diminution of our constitutional rights, our jails packed to overflowing and a burden on our budget that threatens to send us into bankruptcy. On the other end of the spectrum, attempts at outright legalization have met with stiff opposition from those who fear that approach would not offer sufficient safeguards.

Passage of initiative 595 will provide our government a golden opportunity to "cease fire" in the drug war with respect to marijuana and declare an honorable truce with the hundreds of thousands of fellow citizens who desire nothing more than to be left alone to enjoy what limited time we all have on this earth. For more information contact: WCDPR, P.O. Box 1614, Renton, WA. 98057, (206) 226-4164.

(Editors Note: Of special interest to Washington prisoners is the fact that Initiative 595 contains provisions to give amnesty to prisoners currently imprisoned for marijuana related crimes such as growing, possession, etc. Efforts to undercut this country's draconian drug laws need to be supported because they are one of the leading causes of prison overcrowding and have led to the criminalization of huge segments of our communities. Mobilizing people in support of projects like this initiative also make them mobilizable for other, similar projects in the future and serves an important public interest of educating the public and giving the people a voice in a criminal justice policy debate where currently only the most backward and reactionary sectors of society are being heard.)

Prison Litigation Report Issued

The winter, 1993, issue of the ACLU's National Prison Project contains a status report of nationwide prison litigation for 1992. Forty states plus the District of Columbia, Puerto Rico and the Virgin Islands are under court order or consent decree to limit population and/or improve conditions in either the entire state system or its major facilities. Thirty two jurisdictions are under court order for overcrowding or conditions in at least one of their major facilities, while 11 jurisdictions are under court order covering their entire prison system. Only four states have never been involved in major litigation challenging overcrowding or conditions in their prisons. The four states are Minnesota, New Jersey, North Dakota and Vermont.

The 11 states where the entire prison system is under court order or consent decree are: Alaska, Delaware, Florida, Mississippi, New Mexico, Rhode Island, South Carolina, Tennessee, Texas, Puerto Rico and the Virgin Islands. Of these, eight states have been cited for contempt for disobeying court orders. Six states which had been under court order or consent decree but are no longer under active court supervision are: Alabama, Arkansas, Georgia, Oklahoma, Oregon and Wyoming.

The article gives a state by state breakdown of pending and past litigation challenging conditions and overcrowding. Not surprisingly, some of the biggest states, like New York and California, also have the most lawsuits against individual prisons challenging conditions of confinement even though the suits are not system wide.

The NPP Journal is an excellent quarterly publication and is highly recommended. In addition to this article the Winter, 1993, issue has an article by Luke Janusz on the difficulties of prison publishing, changes brought about by outside AIDS activists in prisons, District of Columbia public defenders doing prison litigation, a listing of suits the NPP is involved in, a resource listing of NPP publications and a case law highlight of prison cases. Their case law section also includes analysis of case doctrine and where legal standards are evolving. Subscriptions are $2.00 a year to prisoners, $30.00 a year to free people. Write: National Prison Project, 1875 Connecticut Ave. N.W., # 410, Washington D.C. 20009.

Computers and Rehabilitation: Taking Responsibility for the Future

By Ed Mead

For many years I have railed against the approach taken by the Department of Corrections (DOC) in connection with its role vis-à-vis the public's interest in being free from current levels of criminal victimization. It has been my position that the Department's real objective lies in maintaining a smooth running prison system, not in serving the community's need for public safety. In addition to operating quiet prisons, DOC seeks to project a public image that reflects the currently popular viewpoint on criminal justice issues. Today that outlook is one of being tough on criminals.

Despite an unprecedented prison building binge and the systematic overcrowding of prisoners, not just in Washington state but nationally, the crime rate continues to climb. The state refuses to look at the social roots of this problem, such as high unemployment, widespread poverty, the growing gap between rich and poor, racism, etc., and instead they focus all their attention on the errant individual. So what, they say, if capitalism is incapable of providing enough jobs for everyone; the fact that you don't have work is proof that you are scum. In short, you are the sole cause of the problem and must accept all responsibility for it. If this is the situation, then it's time for prisoners to take a modicum of responsibility for changing not only the perception, but the underlying reality as well.

Some prisoners have been working to ensure that we are able to obtain employment when released to the outside world. One means of accomplishing this is to develop the skills necessary for finding a job. While the prison system does have vocational programs it occasionally touts to the public as proof of its efforts to rehabilitate prisoners, these are generally both outdated and ineffective. Here at the Reformatory, for example, we had a vocational machine shop in which all of the heavy machine tools, lathes, etc., came off of a World War II navy ship. Whereas in the real world of modern machining practices, machine tools such as lathes are newly built and guided by computers.

We are already disadvantaged as a result of our status as convicted felons; in order to get hired and to keep a job we almost have to be better at our duties than other workers. Since the hardware available to us for learning job skills is mostly outdated and our access to it limited, we need to focus on learning skills that we can develop in our cells, independently of any state-run program. One of the few ways we can accomplish this is by building computer skills, learned in our cells on personally owned computers. Accordingly, we have been trying to develop our abilities in the computer field by first getting approval for having personally owned computers in our cells.

This has been a long and difficult struggle. In the mid-1980s we spent 2½ years fighting to get permission to have personally owned computers. There was excuse after excuse (space limitations, liability, existing policy, etc.), but with persistence and right on our side we slowly wore them down. Computers were eventually approved and we had them for three years without a single computer-related infraction being issued. During this period many prisoners were able to learn skills they would not have otherwise obtained, and are today working on the streets in the computer field as a direct result of this program.

I will give you one example. Jeff Thompson was a construction worker on the outside. While on the job he fell from a roof he was working on and sustained a serious back injury. Because of his injury, Jeff was physically unable to work. His disability payments were held up by red tape, leaving him both broke and disabled. He turned to dealing speed to make ends meet, an activity which ultimately landed him in prison. Jeff's compensation payment finally arrived, years after he was imprisoned. Since his injury prevented him from going back into construction work, Jeff bought a computer and learned how to use it in the privacy of his cell. When he was released he applied for a job in the computer field. Competing for the position were two people who had just obtained Associate of Arts degrees in computer science. After interviewing the two graduates, the employer talked to Jeff for two minutes and hired him on the spot (prior record and all). Why? Because Jeff knew what he was talking about when it came to computers. He had learned his lessons well.

Jeff's story is only one of the successes achieved during the three years we had computers. There are many others. The program was so successful that the Assistant Director of Corrections sent a memo to every prison in the state, authorizing them to implement a similar inmate computer ownership program at their facilities, and he attached a copy of the Reformatory's inmate computer ownership policy for them to use as an example. Notwithstanding this progress and the absence of problems, a new director of the division of prisons was named who opposed the program. He promptly terminated it. We were given thirty days within which to ship our computers out of the prison. Our typewriters were even limited to just one page of memory. An anti-computer hysteria swept the state's prison system.

That was 3½ years ago. The prisoncrat responsible for the loss of our computer ownership program is now history, and after several years of additional struggle we may again be on the verge of getting the machines back into our cells. But there are problems that will destine the new policy to fail. Rather than take the old policy, the one DOC officials touted as a model for all prisons in the state to use, tweak it here and there where real or potential problems existed, and issue it, prison officials instead wrote a whole new and very restrictive policy. Under this new policy any violation of the rules, however minor, will result in the permanent loss of the inmate's computer. At the same time, under the new policy prisoners are no longer permitted to possess floppy disks. What this means is that the complex program you've been developing for the past six months, the book you've been writing, the legal work you've been doing, cannot be saved on a backup floppy. If your hard drive crashes or fails, as all of them ultimately do, you are out all of the work you've done. It is lost. Rather than put up with such nonsense, convicts will use readily available floppy disks to backup their work. Since that is a violation of the new policy, nearly every prisoner will be subject to the loss of his computer. Our captors will then be able to smugly say, We tried our best, but those manipulative convicts abused our trust.

In point of fact they have only grudgingly implemented this latest computer policy (if it is actually implemented at all), and they've designed it in such a way as to be sure to fail. Even in the unlikely event that somehow the new computer policy did not fail, prisoners would still have a hard time learning the sorts of things that enabled Jeff to successfully compete on the job market with recent college graduates. The new policy authorizes only three pieces of application software on our hard disks (to be installed by the property room, since we can't have floppy disks). These are a specific brand of word processor, database, and spreadsheet. Jeff learned the most about computers from learning how to program them, using the C programming language. This and other necessary types of software would not be permitted under the new policy.

Will allowing prisoners to have personally owned computers in their cells be coddling people who have offended against society? Herein lies the basis for the seemingly endless debate between efficacy of the punishment versus the rehabilitation approach to crime control. These philosophical concepts mask a very real social question. As demonstrated earlier in the example of the computers, the rehabilitative model has never been more than half-heartedly implemented by prison officials, despite the public's will. Oh, wardens became superintendents, guards became correctional officers, prisoners became residents, and prisons themselves were transformed in to correctional institutions. But other than the verbiage, very little actually changed. The absence of significant progress was blamed as the reason for going back to the punishment approach. The death penalty was restored, prison sentences significantly lengthened, paroles limited, prison living conditions eroded, training programs gutted, and so on. That is where we are at today.

What has this cruel, vindictive, and murderous approach to a social problem netted the community? Washington state's top prisoncrat, Chase Riveland, was recently quoted in the Seattle Times as saying that if the state continues to lock up criminals at its current rate everybody in Washington will be in a prison or working for one by the year 2056. There are some valid reasons for this alarm. The prison population in Washington's prisons jumped 71 percent between 1980 and 1992, while the state's general population increased by only 13 percent. During this 12 year period prison operating costs have risen from $139 million to $700 million. At the same time the public was paying more to lock people up for longer, crime rates in the state continued to increase significantly.

I am not trying to pass personally owned computers off as some sort of penal panacea, but rather as a single example of what can be accomplished if prisoners themselves are able to implement vocational programs. The computers provide prisoners with job skills they would not otherwise have. With decent employment we don't return to prison. Progress is made. More, since the computers are purchased at inmate expense, this progress is made at no cost to the tax-payers. What could possibly be the objection to such programs? Why would prisoncrats oppose implementing or deliberately cripple them?

Conservatives admit that the get tough philosophy has not succeeded, but argue that what we need is yet larger doses of the same old ineffective punishment medicine. They will cling to this belief, and have done so historically, until even minor offenses warrant the death penalty. More fear and terror is always their only solution. In feudal England this trend played itself out until such crimes as killing a rabbit on private land, cutting down a tree on a public lane, or picking a pocket were capital offenses. The ineffectiveness of this approach was demonstrated by the pick pockets who would ply their trade at the crowd that gathered for the public hanging of a fellow pick pocket. In other words, the punishment mongers will continue to prescribe larger and larger doses of violence, even after such things as jay-walking have become capital crimes subject to summary execution. Is this the kind of society we want to live in? It's the logical outcome of today's justice policies.

One thing is made clear by the overwhelming failure of the punishment approach, and that is that current trends in criminal justice thinking are terribly wrong. The answers are complex and well beyond the scope of this brief article, but a step in the right direction can be taken by allowing prisoners to organize and implement their own rehabilitation programs. When this task has been left to the prisoncrats it has been less than half-heartedly implemented. We as prisoners must take the responsibility for our own rehabilitation. Fighting for access the tools necessary to accomplish this task, such as personally owned computers, is a good step in the right direction. Although working for greater computer access won't by itself make the revolution, it is nonetheless an issue we as rights conscious prisoners should be working on. It is an important step toward our collective empowerment.

BOP Liable for Overcrowding and Opening Detainees Mail

Richard Young is a federal pretrial detainee. While awaiting trial he was housed at the US Penitentiary in Lewisburg, PA. He filed suit claiming that the conditions of confinement violated his right to be free from punishment. The conditions included being confined 23 hours a day, with ten other men, in a converted gym 11x31 feet which had no toilets, sink, tables, chairs or drinking fountain. Prison officials also opened his outgoing legal and general mail. The defendants moved for summary judgment on qualified immunity grounds and on the merits. The district court denied their motion in part and granted it in part.

The court noted that pretrial detainees have a right not to be punished. It gave an extensive discussion, with numerous citations, of the rights of pretrial detainees and what conditions, especially in terms of crowding, are lawful. The court denied the defendants qualified immunity by holding Young was kept in far more repressive conditions than convicted prisoners at the same prison. The conditions he was confined under were unconstitutional. The court held all these rights were well established and the defendants were not entitled to qualified immunity because they knew or should have known that their conduct was unlawful.

The court held that BOP officials violated Young's federal rights by opening his outgoing legal and general mail. The district court rejected the BOP's claims that they acted to thwart Young's escape plans by noting they began opening his mail before they received the information about the alleged escape and that mail addressed to judges and court staff are unlikely to contain escape plans. The BOP defendants were denied qualified immunity on this issue as well.

The court dismissed defendants who did not personally harm Young or cause him to be harmed by others. It also ruled that the BOP was not a "person" in the meaning of civil rights jurisprudence and thus could not be sued. See: Young v. Keohane, 809 F. Supp 1185 (MD PA 1992).

BOP Can Deny Halfway House Placement

William Lyle is a Bureau of Prisons (BOP) prisoner serving a sentence for firearms and explosives violations. At his pre-release classification review his unit team recommended Lyle be placed in a halfway house for 60 days to ease his reentry into the community. The prison warden rejected the recommendation and denied the halfway house placement saying to do otherwise would depreciate the seriousness of Lyle's crimes. Lyle filed a petition for habeas corpus seeking a federal court order to place him in an appropriate pre-release program for the remainder of his sentence.

The court notes that BOP prisoners must exhaust their administrative remedies before seeking a court review of BOP actions. In this case the parties disputed whether Lyle had exhausted his administrative remedies. Rather than hold an evidentiary hearing and delay the proceedings the court excused the failure and went on to decide the case on its merits.

The court held that congress has barred judicial review of BOP decisions under the Administrative Procedure Act (APA). The court gives a detailed review of the legislative history barring judicial review of BOP decisions. The court held this bar applied retroactively to Lyle's claims.

Thus, the only judicial review of BOP decisions is when the BOP is claimed to have violated the constitution or acted beyond the scope of the extensive discretion it has been granted by congress.

The court held that 18 USC 3624 (c) (which states that the BOP shall assure that prisoners serve the last 10 % of their sentence, not to exceed 10 months, in conditions that provide a reasonable opportunity to adjust and prepare for reentry to the community), does not create a due process liberty interest. The court notes that every court to consider this question has reached the same conclusion. The court denied Lyles writ of habeas corpus. See: Lyle v. Sivley, 805 F. Supp 755 (DC AZ 1992).

DC Not Proper Venue for BOP Suits

James Cameron is a federal prisoner. While at the penitentiary at Terre Haute he suffered a massive heart attack. Prison doctors stated he should receive a low sodium diet. The prison at Terre Haute could not provide a special diet and the warden requested that Cameron be transferred to a prison that could provide it, the BOP regional director denied the transfer request. BOP doctors at Terre Haute again prescribed a low sodium diet and recommended Cameron be transferred to a prison that could provide the diet.

Cameron filed suit in the District of Columbia under Bivens claiming that the denial of the low sodium diet violated his right to adequate medical care under the eighth amendment. After the suit was filed Cameron was transferred to the penitentiary at Leavanworth which could provide a low sodium diet, thus mooting his claim for injunctive relief. The district court dismissed Cameron's complaint holding that the BOP defendants were entitled to qualified immunity in their personal capacities and that Cameron had not exhausted his Federal Tort Claims Act remedies in order to state a claim against them, in their official capacities.

The court of appeals for the District of Columbia Circuit vacated the dismissal and transferred the case to the district court in Indiana. The appeals court held that venue was improper in the District of Columbia because no actions or policies emanating from Washington D.C. had affected Cameron. The court gives a detailed discussion of how courts in the District of Columbia should determine if venue properly lies in DC when prisoners sue the BOP for actions that occur elsewhere in the country. See: Cameron v. Thornburgh, 983 F.2d 253 (DC Cir. 1993).

S.O.C.F. Chronology

By Chryztof Knecht

(Editor's Note: (May 1, 1993) What follows is a chronology of events as they unfolded at Lucasville, Ohio, during the April uprising at that facility. It was written by a Lucasville segregation prisoner who wasn't an actual part of the riot, but who was close enough to witness many of the events as they unfolded. This is an on-the-scene and under-the-gun report by a prisoner who is denied access to newspapers, magazines, radio or television.)

"There is not a single penal institution or reformatory in the United States where men are not tortured ‘to be made good,` by means of the black-jack, the club, the strait-jacket, the water-cure, the ’humming bird' (an electrical contrivance run along the human body), the solitary, the bull ring, and starvation diet."

Emma Goldman wrote the above quote 80 years ago. While some of the methods have changed, it's obvious that the behavior modification techniques have only gotten worse. Guard-on-prisoner brutality, murdering prisoners, denying adequate medical care, pitting prisoner against prisoner, trickology, deprivations of this or that, new policies every day (you can have this today but tomorrow it's contraband and next week it isn't), insults, lies and so on.

All of this has been routinely practiced at the Southern Ohio Correctional Facility (SOCF) for some 21 years. The prisoncrats continued to treat us like animals while the bourgeois media plays into the propaganda that we are violent beasts who deserve nothing except total oppression. Finally, the day has come when we have exhibited the "animal" in us. What follows is a preliminary report of the overthrow. The "causes" are self-apparent from some of the demands made.

April 11, 1993, at 3:30 pm: SOCF prisoners have taken hostages on the L-Side prison wing, which consists of eight separate cellblocks and a gymnasium. The entire L-Side is under the control of prisoners. Those who did not participate in the takeover went through the gymnasium, into the yard, and over to K-Side wing. Twenty-three ambulances arrived to remove the dead that were stacked in the prison yard. SWAT teams, Ohio National Guard, City Police and the Ohio State Highway Patrol swarm in and out of the prison gates. Helicopters sweep the prison roofs, capturing those prisoners loose on the compound and roofs. Rumor has it that 3 guards and an estimated 50 prisoners (mostly those who were known informants) are dead.

April 12, 1993: Transport buses enter the compound to transfer prisoners on K-Side to different prisons, making room for L-Side prisoners once they surrender. Approximately nine guards are held hostage, divided into three groups in three separate areas of the L-Side prison wing. Prisoner bodies continued to be stacked outside the gymnasium for the ambulances. Prisoners have been seen to hang from the railings of some of the second ranges of the cellblocks. Negotiations begin. Some prisoners have been seen with their hands up while on the prison roofs, apparently surrendering.

April 13, 1993: Ohio State Highway Patrol helicopter crashes while landing. Prison guards surround the prison perimeter with shotguns. More ambulances come and go, removing dead prisoners. SWAT and National Guard knock a prison cellblock wall down with a bulldozer in an attempt to free hostages. The cellblock was empty. Prisoners left in one cellblock on K-Side begin to riot, protesting inadequate food. Prison guards tear gas the cellblock and leave. SWAT and National Guard landed on the roof of an administrative segregation cellblock with weapons, tripods, etc. Prisoners in three segregation cellblocks set ranges on fire, destroy light fixtures, assault prison guards. Helicopters continue to sweep the prison roofs searching for prisoners. All prisoners on K-Side, except for Death Row and the previously mentioned cellblock, have been transferred. Death toll of prisoners continues.

April 14, 1993: Helicopters grounded; rainy and windy day. Prisoners in the SuperMax segregation unit riot and are removed and separated.

April 15, 1993: Spotlights are shined on L-Side; guards are on prison roofs with weapons, signaling each other. They remain on roofs until following day.

April 16, 1993: Legal mail and a few letters are delivered to prisoners in segregation. Standoff continues.

April 17, 1993: L-Side prisoners enter L-8 cellblock, closing windows and breaking them out. Guards in segregation unit flash shotguns; prisoners in L-8 flash their middle finger at guards. Thirty-two Army trucks enter compound. Helicopters continue to circle prison while ambulances come and go.

April 18, 1993: Standoff continues. Holes drilled in roofs of L-Side cellblock — microphones dropped in.

April 19, 1993: A list of 21 demands are sent out. Negotiating teams agree to all demands and stated over a bullhorn to each block (all night long) that mail and visit policies will be upgraded; no retaliation by guards; attorneys will be provided for all involved; FBI will monitor SOCF; food service upgraded; medical standards will be upgraded; the removal of Unit Management will be "reviewed;" better jobs will be provided; American Correctional Association standards will be implemented; prisoners will sit as advisers for prisoners on disciplinary hearings; integration of prisoners in cells will not be enforced; commissary prices will be reduced; close security prisoners will be removed from SOCF; prisoners wanting transfers to other prisons in Ohio will be reviewed on a case-by-case basis; inter-state transfers will be reviewed via case-by-case; transfers to the custody of the Federal Bureau of Prisons will be reviewed per request of prisoners seeking such; and those involved [in takeover] will immediately be transferred out of SOCF. These are the only ones I could hear on the bullhorn. Pigs stated on the bullhorn that the list of demands had been agreed to and signed (I don't know who signed them).

April 20, 1993: Have not heard anything new except three prisoners came walking out but brought no hostages with them. There is something like 600 prisoners involved (at least that's what we heard). A letter dated April 12, 1993, from another prisoner indicated that all Ohio prisoners are locked down.

April 22, 1993, Update: Eleven guards were held hostage as of 4-11-93 (Names of guards are being omitted due to space.) Three hours after the riot jumped off two guards were released. Guard Vallandingham was hung from his ankles from a cell tier range, mutilated, then hung from his neck until he died. Two other guards were killed but it's being kept quiet. An undisclosed number of inmates were killed — family members said the bodies were wrapped in bed sheets. This whole thing started over TB tests, which lead on to the 21 demands being made.

Thirty-six F.B.I. agents on scene with 500 national guards. The Correctional Institution Inspection Committee (appointed by the Ohio Legislature to oversee prison conditions in Ohio) claimed they had no knowledge of fucked up conditions, racial tensions by guards, etc. Yet I personally wrote them a letter and told them that guards brutalized prisoners and recently beat me, and that by allowing them to continue they were handling a time bomb. They totally ignored my letter then denied knowledge of increased tension to the media.

Prisoners surrendered on April 22, 1993, in groups of twenty with their hostages. Six-hundred prisoners were involved. These prisoners were taken to the gymnasium, finger printed (probably for future prosecution), strip searched, then placed on K-Side in Max Lockdown. L-Side wing is to be destroyed (like it already is!) and rebuilt to resemble something like Super Max lockdown (mini-Marion, Illinois). As of this writing, guards haven't taken count of prisoners since the 11th. Last night (4-21-93) guards tear-gassed L-Side after prisoners surrendered, to make sure nobody was left. At night, all during this shit, prisoner bodies were loaded on buses (I guess so the media couldn't get hip). One prisoner tried to protect a guard and help him escape, but the prisoner was busted and wasted.

Our warden issued a memo to all guards that no retaliation is to be taken against any prisoners. No exact figure on prisoner body count. L-5 cellblock was the execution chamber — snitches were wiped out. Entire L-Side destroyed. Yesterday we heard doors being knocked out. One snitch inmate refused to come out of his cell to be executed so they went in and chopped his head off.

This riot was not racially motivated; Black and White prisoners united and made sacrifices for us. Muslim prisoners and Aryan Brotherhood prisoners along with just white/black prisoners joined.

Observe Prisoners' Justice Day

Traditionally, August 10th has been commemorated by prisoners in Canada as Prisoners' Justice Day (PJD). During the twenty-four hours of August 10th prisoners fast and refuse to work as a show of solidarity in memory of those who have died unnatural deaths in prisons; victims of murder, neglect and suicide. At the same time, community organizations have increasingly held demonstrations, services and vigils in support of prisoners' common resistance against oppressive prison conditions and systems. PJD is also a day when prisoners and their support organizations emphasize their attempts to raise awareness of the brutal and inhuman conditions inside prisons that are responsible for the many unnatural deaths. August 10th is also the day to remember that while many people are sentenced to serve time in prisons, they have not been sent there to die.

PJD was originally to be a one-time concentrated effort by prisoners at Millhaven Penitentiary to show their solidarity on the one-year anniversary of the death of Eddie Nalon. He had bled to death on August 10th, 1975, after the 'panic' button in his segregation cell failed to alert custodial staff as it should have. His desperate bid to bring attention to the unwarranted extension to his stay in solitary confinement by slashing his wrists proved fatal. Howie Brown, his neighbor in Millhaven at the time, decided to initiate what has become a tremendous yearly show of solidarity, which has recently increased on an international scale.

Although not often publicized, prison deaths that occur show just how unnatural and unnecessary they are, whether at the hands of the state, or by other prisoners when they are not taking their own lives. Foremost among the modes of death is the death penalty, which is still being used by many states claiming to be developed and progressive. Then there are many prisoners who die as a result of excessive force used by police and prison staff, who have proven they are accountable to no one. It has also been determined that the majority of prisoners with HIV/AIDS live only half as long as if they were living in the community with the illness. Many deaths also occur as a result of negligence of health care personnel, who often fail to diagnose fatal illnesses, and are slow to respond to emergency situations. And then there are the many senseless and brutal murders by other prisoners, precipitated by often minor disputes that reflect their common feelings of powerlessness, fear, anger and rage. All of these deaths can and must be prevented with changes in current methods of criminal justice and prison systems that prisoners demand on August 10th of each year.

PJD is the day when prisoners and their support organizations emphasize Publicity of their long list of demands. A general overview of that list is:

  • Abolition of the death penalty and inhumane life sentences.
  • Abolition of arbitrary measures used by prison staff and administrators.
  • Recognition of prisoners' human rights and dignity.
  • Implementation of a means to hold all justice systems personnel accountable.
  • To create a more humane and positive environment in prisons while ultimately working towards prison abolition through restorative justice methods.

In 1992, for the third consecutive year, the Prisoners' Justice Day Committee of Toronto produced a radio program of prisoners' and ex-prisoners' writings in support of the PJD effort. The pre-taped program was aired by 22 radio stations across Canada to raise public awareness of PJD and to publicize prisoners' demands. The Committee had sent out notices to prisoners and their support groups calling for written submissions for the radio show. The Committee's efforts resulted in the building of a loose network of prisoners and support organizations. With some work in building a stronger network, PJD promises to become a much greater show of solidarity world-wide. And it will create the force necessary to smash down the prison walls of barbed-wire, steel, concrete and prejudice.

Although some people are aware of PJD and the brutal conditions that result in so many unnatural prison deaths, not enough are aware of the significance of this, neither do they recognize PJD efforts. A much broader show of solidarity through fasting and work strikes in prisons, and demonstrations, services and vigils in the communities would create the public awareness necessary to effect the positive changes to stop the needless dying. As an individual and/or organization, prisoners everywhere need for you to give support by showing your solidarity on August 10th in memory of those who have died unnatural deaths in prisons. Please do so not only in thought and work but through positive action as well.

For more information contact:
Zoltan Lugosi
Box 4510
Kingston, Ontario, Canada K7A 5E5.

Adequate Notice of Disciplinary Charges Required

Henry Benitez is a New York state prisoner. He was infracted in a four page disciplinary report for allegedly violating eight different rules. A few hours later he was given another infraction report consisting of an additional four charges. A few hours later Benitez was placed in segregation and not allowed to bring the infraction reports with him. At his disciplinary hearing he objected to the lack of written notice saying he was unable to prepare his defense. The hearing officer rejected this and found Benitez guilty of 11 of the 12 charges. Benitez was sentenced to six months segregation, loss of good time and loss of telephone privileges.

Benitez filed suit claiming that the lack of advance written notice violated his right to due process. The district court ruled that it did not, but, even if it did the defendants were entitled to qualified immunity for their actions. The court of appeals for the second circuit affirmed the dismissal on qualified immunity grounds but held that the lack of notice did indeed violate due process.

The court gave a detailed explanation of the minimal due process required in a prison disciplinary hearing, especially as it pertains to advance notice of the charges against the prisoner. The court ruled that prisoners must be given advance written notice of the charges against them and, most importantly, be allowed to retain the written notice at least 24 hours in advance of the hearing. The court held that this right was not clearly established therefore the defendants were entitled to qualified immunity from money damages. See: Benitez v. Wolff, 985 F.2d 662 (2nd Cir. 1993).

Judge Cannot Make Credibility Findings

Roland Pettengill is an Arkansas state prisoner. While in segregation he went to yard. Before entering the yard he alerted sergeant George Veasey that an enemy of his was in the yard. Veasey gave Pettengill the choice of going to yard with his enemy or refusing. Pettengill went to yard and was attacked, kicked and beaten. Veasey then refused to take Pettengill to the prison infirmary to receive treatment for his injuries. Pettengill filed suit under 1983 claiming these events violated the eighth amendment.

At an evidentiary hearing a magistrate heard vastly conflicting stories. The guards testified that Pettengill had not told them his enemy was in the yard, that he was the aggressor, received no injuries and did not request to go to the infirmary. Pettengill and his witnesses testified to the contrary. The magistrate judge ruled in favor of the guards, accepting their version of the facts, and recommended dismissal of the suit. The district court agreed and dismissed the suit.

The court of appeals for the eighth circuit reversed and remanded. The appeals court held that because Pettengill had requested a jury trial the magistrate had "erroneously made credibility determinations resolving direct factual conflicts in favor of Veasey without assuming as true all facts supporting Pettengill which the evidence tended to prove and without giving Pettengill the benefit of all reasonable inferences." Because a reasonable jury could conclude that Veasey had in fact violated Pettengill's constitutional rights, the district court had erred in dismissing the suit. See: Pettengill v. Veasey, 983 F.2d 130 (8th Cir. 1993).

PA Prison Expansion Fails to Cut Crime

A recent report prepared for the Pennsylvania State Commission on Sentencing found that a dramatic increase in the state's prison population has not reduced violent crime.

The report, Incarceration and Crime: Facing Fiscal Realities in Pennsylvania, by Penn State University Professor Darrell Steffensmeier, found that between 1980 and 1991 the prison incarceration rate rose 171 percent and the violent crime rate increased nearly 25 percent. During this period, the state Department of Corrections Budget rose 263 percent.

Steffesnmeir concluded: "Using incarceration as the primary sanction for the bulk of offenders does not appear to be justified given what we do know."

Corrections Today, April, 1993

From the Editor

By Paul Wright

Welcome to another issue of PLN. As you will have noticed, PLN has a new look. We are trying out this new, expanded format because we had pretty much exhausted the newsletter format and had a backlog of material. This new magazine format costs us about the same as photocopying for the first thousand copies but we can now print 16 pages a month with no problem. It also lessens the work for our volunteers as there is less folding or stapling involved.

The drawback is that this has doubled our printing costs compared to what we had been spending due to the extra pages. Because there is a minimum print run of 1,000 copies and we only have about 650 US subscribers, we have quite a few excess copies left over. That's the bad news, the good news is that once we go over a thousand copies the printing gets a lot cheaper and we can start saving money on printing costs. We will be disposing of the excess copies by sending them out as samples to potential subscribers.

We also ask that you, our readers, encourage any friends, family members or other interested parties to subscribe to PLN. Anyone interested in buying bulk copies of PLN for distribution at events, bookstores, etc., please contact Ed or myself to work out the details. Encourage your local library (in prison or out) to subscribe at our institutional rate. We need paying subscribers that can cover their subscription costs to continue printing in this magazine format. Until now PLN has been limited by its format into not being able to print lengthier articles or even everything that we would have liked. Over the years we had to make decisions not to print a lot of good material due to a lack of space because we prioritized other materials or it was too big. It would be a shame if we couldn't afford this new format and had to go back to our photocopied format.

I want to emphasize to you that all of your donations go towards producing, printing and mailing PLN. The more money we have the more we can afford to do and this will be reflected in the product you get to read. Readers that have been with us a while will remember that when we started PLN was a hand typed 10 page newsletter. It's taken us three years to get to this point as we've gone slow and not overextended ourselves. Through this period we've always gone forward and want to continue doing so. We need your ongoing support to keep publishing. As always, we welcome comments and suggestions from our readers.

Recently we have had some problems getting PLN delivered to our subscribers at the Pelican Bay State Prison in California. Copies of PLN were returned to us as "undeliverable" because they did not have the subscribers' cell number on the address. We usually don't put prisoners' cell numbers on the mailing label due to the frequency of cell moves within prisons. In some cases the labels did have the cell number and all have the prisoners' DOC number. I wrote to the warden, Charles Marshall, to complain about this and his reply was, to say the least, interesting. First, he started out by claiming 300 to 500 copies of PLN were delivered to Pelican Bay each month requiring "6 hours of staff time" to put cell numbers on. According to our mailing list we only have about 36 subscribers at Pelican Bay, so who knows where the other 460 copies are coming from. To resolve this problem we sent Marshall a listing of our Pelican Bay readers and asked that he return it with their cell numbers and we would add them to our mailing list. This is the only prison in the US we are having this problem at. We have a few readers at most California prisons and only at Pelican Bay has this been an issue.

While I'm on the subject of Pelican Bay, of the 36 subscribers there, only three are covering the cost of their subscriptions. We understand that those readers in the SHU have a real problem getting money to donate for PLN, but if you can borrow someone's copy please don't ask for a free subscription. If you're in the SHU or getting a free subscription to PLN, ask friends or family on the outside to donate to us on your behalf. Our continued existence, especially as a magazine, will depend on your support.

On a closing note, prison artists interested in contributing artwork for our 1994 prisoners calendar should get with us as soon as possible. September is the printer deadline for this. We need prison related art (please, no clenched fists through the bars!) that's in black and white in a landscape (horizontal 11 by 8½) format. Please contact Ed or myself if you're interested in participating. Enjoy this issue of PLN and pass it along to others when you're done with it. As always we encourage articles and submissions from you, our readers, so keep them coming.

White House Pot Baron

By Paul Wright

The March 9, 1993, edition of the Seattle Times reports that Arizona businessman Walter McCay made his fortune growing massive amounts of marijuana. What was interesting about McCay is that he is a prominent Republican businessman and banker who worked for several years as Ronald Reagan's advance man (smoothing travel, security and related things) when Reagan traveled.

In 1990 police in Yuma, Arizona, raided a pot growing operation in a house, seizing 450 pounds of pot. The grower confessed that McCay was the owner of that and many other pot growing operations.

When confronted by police at one of his pot farms during a raid McCay confessed to a long list of drug crimes. This included growing large amounts of pot in Arizona and California, storing pot in his house, using chauffeured US embassy cars in Germany to go to Amsterdam to buy high quality pot seeds to bring back to his growing operations, laundering drug money through banks he was a director of and setting up front businesses to launder drug profits. During this period McCay was also a Maricopa County Sheriff's deputy.

To quote the Seattle Times: "McCay was never arrested. He faces no federal charges, even though he exploited his positions at the White House, the Maricopa County Sheriff's Office and a Scottsdale Bank. Unlike a Hawaii couple that helped him run the operation, McCay will spend no time behind bars. And although McCay confessed to storing marijuana in his house an action usually considered grounds for property forfeiture prosecutors have not seized the house."

After confessing to the above crimes McCay turned snitch and, wearing a microphone, obtained incriminating statements from his underlings that he employed to work in his drug ring. Twenty-two people were indicted by federal prosecutors. One of the indicted committed suicide and charges were dropped against 2 others, including one who plead guilty to state drug charges. The threat of McCay's testimony and the evidence he had gathered was sufficient to induce many of his former employees to plead guilty and be sentenced to prison.

MCcay was never arrested. He was charged in Yuma county court and in October pleaded guilty to charges of conspiring to produce and offering to sell marijuana. He was sentenced to three years of unsupervised probation. None of his property or drug profits and money have been seized by state of federal officials and they claim no intent to do so.

A frequent theme in PLN is that there are two systems of justice in the United States and other capitalist countries: one for the poor and one for the rich. I, for one, think that this is a pretty obvious proposition and you don't have to be a rocket scientist to figure it out. Part of the system's charade though is in maintaining the fiction that "justice" is equal for everyone rather than admitting that people get as much justice as they can afford, or as one wit put it "we have the best justice system money can buy." Anyone who doubts this has only to read the mainstream media and note the disparities in how the rich are treated as opposed to how the poor are treated.

Bertolt Brecht asked "Which is the greater crime, to rob a bank or to own one?" The lesson of the savings and loan rip off where bank owners looted over 600 billion dollars from banks and financial institutions, is that you're not going to do anywhere near the prison time if you are caught looting a bank. Thousands of bank officials and directors, with the connivance of government regulators, accountants, etc., made the savings and loan debacle possible. To date only a few hundred have been charged with criminal violations. The average sentence of those who do go to prison is between 2 to 4 years in prison, and when I say "prison" I suspect these guys aren't going to Marion, Lompoc or the other penitentiaries.

Many of the S & L looters pleaded guilty to criminal charges and agreed to pay substantial amounts of restitution in exchange for reduced prison sentences. A recent article by the Associated Press showed that, surprise, virtually none of the looters had paid a penny in restitution and in interviews claimed they wouldn't be able to due to financial problems. I contrast this with friends of mine who have up to 80 % of their meager prison wages of 38 cents an hour seized by the DOC as "restitution." Earning $50 a month isn't a "financial problem" to bar paying restitution, I suspect the S & L types are earning a bit more than this.

Any discussion of the criminal justice system (and that's exactly what is) has to start from the premise that without economic and social justice there will be no justice in the criminal area of law. These issues are inseparable, you can't have one without the other. As long as one class has the guns and money the other class is going to get the shaft and prison.

Notice of Appeal Filed When Given to Prison Officials

Samuel Hamm is a Missouri state prisoner. While employed as a prison law clerk he claims prison officials threatened and harassed him in retaliation for the performance of his duties. The defendants' conduct included threatening him with administrative segregation, infracting him for fictitious conduct, violating his due process rights at disciplinary hearings, not protecting him from attack by HIV+ prisoners, and knowingly allowing him to be exposed to prisoners with tuberculosis. He was not, however, fired from his job. Hamm filed suit under 1983 claiming that this conduct violated the right of other prisoners to receive his assistance in their legal actions. The district court granted summary judgment to the defendants and dismissed the suit.

Hamm had until November 1, 1991, to file his notice of appeal to appeal the suit's dismissal. He had the appeal notice notarized on October 31, 1991, and gave it to prison officials on that day to mail to the court. It was received and filed by the district court clerk on November 4, 1991.

The court of appeals for the eighth circuit held that a pro se litigant's notice of appeal is considered timely filed as long as a prisoner gives it to prison officials within the 30 day period fixed by Fed.R.App.P. 4(a). Once a prisoner gives the notice of appeal to prison officials for mailing he has lost control of it and cannot be responsible for any delays in its getting to the court. The court cites U.S. Supreme Court rulings and decisions from other circuits reaching this same conclusion.

After finding that it did have jurisdiction to hear Hamm's appeal the court affirmed dismissal of the suit.

The court held that because Hamm had no constitutional right to a prison job, or its conditions, he could not state a claim for relief because the defendants had not actually fired him. Holding the case was controlled by Flittie v. Solem, 827 F.2d 276 (8th Cir. 1987), the court ruled prisoner law clerks lack standing to assert the rights to legal assistance of other prisoners. In a concurring opinion, Judge Loken stated that "when the harassment of a law clerk adversely affects the client's right of access, it is the client whose constitutional rights are violated and who is therefore entitled to 1983 relief." See: Hamm v. Moore, 984 F.2d 890 (8th Cir. 1992).

GRAPO Prisoners Tortured

By Paul Wright

All too often we hear about the physical mistreatment and abuse of prisoners, political and social. The impression we are given by the mainstream media and the governments of the western industrialized countries is that such abuses only occur in places like the Middle East, South America, etc., and that such things are unheard of in the western countries that call themselves democracies. As readers of PLN know, physical abuse and mistreatment at one level or another is the norm in the US.

The level of mistreatment and abuse of prisoners and social activists proportionally increases depending on the strength of the movements that are confronting or challenging the established political and economic order. The bigger the challenge the harsher the methods that will be used to crush it.

Spain has been a nominal democracy since 1975 when fascist dictator and loyal US ally, Francisco Franco, died. Spain has a large and active communist and anarchist left and labor movement. It also has several nationalities struggling for independence from the central government. The result of these struggles is that Spain has over 700 political prisoners (PPs). The majority, over 600, are affiliated with the Basque independence struggle. The next largest group, about 55 PPs, are members of the PCE(r) (Communist Party of Spain, reconstituted) and GRAPO (Anti Fascist Resistance Groups, First of October). The remainder are anarchists, labor activists and nationalists from the other liberation struggles being waged against the Spanish state.

Like all capitalist countries, the treatment of PPs in Spain ranges from bad to barbaric. Over the years PLN has briefly reported on the struggle for better conditions in the Spanish gulag. The last several months have seen a general crackdown on leftist and nationalist activists and groups. This includes the arrest of three members of AFAPP, an organization that supports the human rights of political prisoners in Spain. The family members arrested were accused of being members of the PCE(r). The evidence against them consists of address books and copies of the PCE(r)'s clandestine magazine.

After a shootout between Spanish police and a GRAPO commando in which some members of the commando escaped, Spanish police arrested Elvira Dieguez and Laureano Ortega. They were accused of membership in an armed band. Dieguez had been released from prison in 1989 after serving 12 years for GRAPO activities. At her court appearance Dieguez showed obvious signs of torture and described the torture she had undergone at the hands of the Spanish police.

She states she was hooded with a plastic bag and blindfolded throughout her ordeal. Her clothes were forcibly ripped off her body and she was beaten. Her ordeal lasted for roughly five days and she was tortured in the city of Santander and Madrid. In Madrid, naked and in cold cells, she was beaten some more, her body wet down and she was shocked with cattleprods, the soles of her feet were beaten and she was raped with a broomstick. Throughout the experience she was being insulted and screamed at by Spanish police officials.

At his court appearance Ortega described a similar experience except he was not raped. Their lawyer vigorously denounced the torture and called a police doctor as a witness. The doctor testified that the prisoners injuries were consistent with their testimony of being tortured.

Despite the torture neither Dieguez nor Ortega made any incriminating statements and both were freed by the Spanish court that handles political cases for a lack of evidence. The judge said he would give further consideration as to what he would do about the prisoners being tortured. If past experience is any guide, nothing will be done. Torture of political dissidents in Spain, England, France, Turkey and other NATO countries is well documented. Some countries, including Spain and England, operate military and paramilitary death squads that routinely kill political dissidents. Yet again, nothing is done.

The most startling thing about these events is the deafening silence from the so-called human rights community. Where are the denunciations of the Spanish government for their arrest and torture of political dissidents? Some groups like Amnesty International claim to oppose the torture of all prisoners, regardless of political views, yet when communists are being raped and tortured in "democracies" nothing is said.

Whenever capitalist governments are challenged by groups and parties that question the status quo and seek meaningful political, economic and social change, they are ruthlessly crushed. The stronger the challenge the more brutal the means. That is a constant. The hypocrisy of the western governments who claim to support human rights needs to be continuously exposed for the sham it is.

Basque Prisoners on Hunger Strike

On January 31, 1993, five Basque political prisoners in the Spanish prison of Caceres-2 began a hunger strike protesting their abysmal conditions of confinement. They have presented prison officials with a list of 22 demands, all of them relating to their living conditions. After the first ten days, the prisoners had already lost between 14 and 18 pounds and had begun to suffer minor health problems.

The prisoners have denounced the hostile and contemptuous attitude of the prison administration. An attitude which translates into a total abdication of responsibilities on the part of the prison's medical staff. Among other things they criticized the fact that on the first day of the strike medical staff did not conduct a physical exam, which is necessary to measure the effects of the strike on each prisoner. Yet on that same day prison officials forced one of the prisoners to remain in his cell together with a tray of food.

They have reported threats and insults by prison officials. Medical staff have taken their pulses without instruments and ignored their complaints.

The list of demands include: a monthly phone call with the right to speak in Basque; monthly visits; a daily 10 minute shower; regrouping of the four prisoners together in one unit; an end to censorship and mail limits; delivery of newspapers and publications; an end to strip searches and abuses of authority by guards; that they be present during cell searches and their property be respected; that lights remain on longer or light switches be placed in the cells. As we go to press we don't know the outcome of the strike. Basque political prisoners, over 600 in Spain alone, are subjected to harsh conditions of confinement because of their political views. In response to this they have maintained a long struggle for better conditions and against the more abusive aspects of the prison regime.

Source: UPA, Spain Feb.11, 1993.

Costa Rica Drops Extradition Treaty with U.S.

On January 13, 1993, the Costa Rican Constitutional Court issued a ruling suspending application of its 1982 extradition treaty with the US because of a June, 1992, US Supreme Court ruling which authorizes the US to kidnap individuals in other countries in order to bring them to trial. Since extradition is defined as the only valid procedure in Costa Rica for bringing suspects to trial in another country, the judges said the US ruling constitutes a violation of Costa Rican law and national sovereignty.

Costa Rica's constitution also guarantees foreigners the same rights and protections as citizens. The controversial decision came in conjunction with the court's favorable ruling on a writ of habeas corpus presented on December 18, 1992, by James Karls, a US citizen wanted in Wisconsin on homicide charges. The US has requested that Costa Rica extradite Karls.

In January 14, 1993, comments to reporters, Costa Rican foreign minister Bernard Niehaus confirmed that the San Jose court's ruling, which makes application of the extradition treaty illegal, could have serious repercussions on relations with the US. However, he said it was possible that the existing extradition treaty could be modified.

Source: Weekly News Update

Letters from Readers Won't Debrief

This letter is a request to continue receiving PLN. I'm a convict serving a life sentence, confined within the SHU (hole) without a release date due to my continuous refusal to debrief (become an informer). Because of these unjust circumstances, I am unable to afford the cost of a subscription. You can rest assured that any/all copies sent my way will continue to be circulated amongst the convicts within my vicinity.

I believe you know how much your continued assistance is most needed and appreciated. I thank you.

R.R., Pelican Bay, CA

Arizona Court Access

I am in receipt of your March issue of PLN, and find that the info is/will be very useful.

In regards to Access to the Courts (Casey v. Lewis), I feel I should inform you of some facts about the above. This thing, access to the courts, all started with Gluth v. Arizona DOC, et al. Gluth only covered the central unit. The rest of the prisons in Arizona were still at the mercy of the DOC. Now that Casey is in effect, all of Arizona is covered.

On paper all looks good, but in reality let me tell you what the real deal is:

In the central unit, and in all max/super max units, prisoners do not have direct access to books/policies. They have to ask a library clerk for the books they want, and in most cases, if they don't know which book they need, they're SOL.

According to Gluth and Casey, if you are placed on deadlock you are still supposed to have access to the law library unless you're dangerous, etc. Then, they (the prison) are supposed to bring you any material (books, policies, supplies) that you may need. But guess what? First, the prison treats all deadlocks the same, and they don't go to the law library. If you have a court deadline, you're visited by a law clerk every day. If not, you have to submit a kite to the law library and you might see someone in 3 to 5 days. Whenever you do see someone they'll tell you that you are not allowed to have books and that they'll bring you copies of case law, etc., as soon as they can, which could be the next day or five days and sometimes not at all. Now, say you need to look at the fifth amendment and you ask the clerk: "Hey, I need a copy of the fifth amendment." The clerk says "They won't let me copy the whole thing, what part do you need?" "I don't know, this case just refers to the fifth." The clerk says: "Well, I'll copy some of it and bring it back to you in 2 or 3 days, and if its not what you want, just submit another kite."

Oh yes, keep in mind that you can be deadlocked for anything, or being suspected of anything. So now a prisoner feels he's being wronged, and files suit and the suit is good and threatens the DOC. Well no problem, they deadlock the prisoner (he may or may not find out what he's in deadlock for) and now has to litigate from his cell and will get the materials the DOC wants him to have.

There are several other things which deny court access but the above is, I feel, the most important.

One last thing, there is a special master and an assistant. The assistant works for them, and I'm sure the main guy does too. They are supposed to be the court's watchdogs.

R.C. Arizona State Prison, Florence, AZ

Moorish Appeal for Your Support

Members of The Moorish Science Temple of America, who are incarcerated in the penal institutions in the state of Indiana, have received much opposition and are being continuously denied the right to practice our religious beliefs, to hold religious services by the Indiana Department of Corrections as Muslims and followers of Prophet Mohammed. The Indiana Department of Corrections officials have expressed themselves as being opposed to our propagation of the Islamic religion as taught by Prophet Noble Drew Ali.

Whatever the reason may be for their discrimination against the members of The Moorish Science Temple of America, which has Temples and Branch Temples throughout the United States and Branch Temples in both federal and state institutions, except the state of Indiana.

The Indiana Department of Corrections does not have the legal right to deny members of The Moorish Science Temple of America equal protection of the law as afforded to other religious organizations within the Indiana Department of Corrections. We appeal to each of you to support us in a positive effort to stop this discrimination and grave injustice, because the first amendment, equal protection of laws, and the American constitution swings open the door to religious freedom to all alike and so each may worship as they desire. Without religious freedom, no search for truth could be possible. Without religious freedom there would be no inspiration to lift our heads and gaze with fearlessness into the vast beyond, seeking hope eternal.

It is a sad weakness in us all that the Indiana Department of Corrections oppose members of The Moorish Science Temple, while affording religious freedom to the Jews, Christians, Indians, and the American Muslim Mission.

Possibly in time the Indiana Department of Corrections will no longer discriminate against members of The Moorish Science Temple and will no longer deny us equal protection of the law as is afforded to other religious organizations within the Indiana Department of Corrections and prove that in mankind tolerance is better than unwarranted opposition.

We, members of The Moorish Science Temple of America, within the penal institutions throughout the state of Indiana deeply appreciate and pray to Allah that; our loved ones, friends, supporters, leaders, religious leaders, Muslim brothers, and sisters would write appeal letters opposing the denial to practice our religious beliefs and stop the religious discrimination against the members of The Moorish Science Temple of America within the Indiana Department of Corrections and encourage the commissioner to afford us religious rights and equal protection rights as they do with The American Muslim Mission, Jews, Christians, and Indians.

Send letters of support to:
Governor Even Bayh Officer of Governor
Indianapolis, IN 46204
Commissioner Department of Corrections
804 State Office Building
Indianapolis, IN 46204

Send a copy of your letter to:
Taajwar Kafeel Rasheed-Bey #10006
Indiana State Prison P.O. Box 41
Michigan City, IN 46360

Prison Legal News

Prison Legal News is a monthly newsletter published by Washington State prisoners Ed Mead and Paul Wright. PLN reports on court decisions to help prisoners vindicate their human rights, both inside and outside of the government's judicial system. The paper is aimed at the more politically advanced social prisoners and their friends and loved ones on the outside. Letters and hard-copy subscription requests should be sent to:
Prison Legal News
PO Box 1684
Lake Worth, Florida 33460 USA.

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