High Court Splits on Whether Juror’s Racial Bias Merits New Trial

Evidence that a juror made racially biased remarks during jury deliberations in a trial moved the Supreme Court to rule that in some cases, court review of jury deliberations may be warranted.

Evidence that a juror made racially biased remarks during jury deliberations in a trial moved the Supreme Court to rule that in some cases, court review of jury deliberations may be warranted.

By Christopher Zoukis

Dividing sharply by a 5-3 margin the U.S. Supreme Court issued a major new ruling March 6th that evidence of racial bias affecting a jury verdict may in some cases overcome longstanding rules shielding jury deliberations from court review.

In Peña-Rodriguez v. Colorado, Miguel Peña-Rodriguez had been convicted of sex offenses against two teenage girls, and unsuccessfully sought to persuade a Colorado trial court to give him a new trial, citing evidence from two jurors that another juror had made anti-Hispanic remarks about the defendant and a defense witness during jury deliberations.

The state court refused to overturn the verdict based on state evidence rules generally barring evidence of jury-room deliberations. But the Supreme Court, in a decision written by Justice Anthony Kennedy and joined by four liberal justices (Breyer, Ginsberg, Kagan and Sotomayor), reversed and sent the case back to the state court to reconsider the case in light of the testimony of the two jurors, who reported racially charged remarks.

Kennedy’s opinion began by noting traditional rules adopted by state and federal courts to prevent second-guessing of jury deliberations, but for the first time ruled that the court’s “imperative to purge racial prejudice” from the administration of justice might require creating an exception to the general rule against court review of how the jury reached its verdict.

In this case, lawyers for Peña-Rodriguez had obtained statements from two jurors that another juror, a former law enforcement officer, had voiced the view that Mexican men were almost always “guilty of being aggressive toward women and young girls” and believed “they could do whatever they wanted with women.”

Calling those statements “egregious” and “unmistakable in their reliance on racial bias,” Kennedy’s opinion said the trial court should have weighed whether the statements had violated the defendant’s Sixth Amendment right to a fair trial. If so, a juror’s racist comments could justify overturning a verdict and ordering a new trial.

But three justices strongly dissented. A opinion written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Clarence Thomas called the majority opinion “well-intentioned,” but argued that opening up jury deliberations to later attack would create serious problems, including making jurors more guarded and less honest in their deliberations, subjecting jurors to harassment by convicted defendants seeking evidence of prejudice to support appeals, and making citizens less willing to serve on juries. Alito’s dissent charged the court’s majority “barely bothers” to address those serious policy issues.

The court’s majority opinion did not decide that Peña-Rodriguez will get a new trial, or even spell out in detail how the trial court should go about making that determination, beyond saying the trial judge should investigate, question the former jurors, and then decide whether a new trial is needed.

In fact, the majority opinion cautioned not every “offhand comment indicating racial bias or hostility” would justify overturning a verdict and ordering a new trial. Instead, to reach those results, the trial court must find the statements of at least one juror during deliberations showed overt racial bias that seriously called into doubt the fairness and impartiality of the jury’s deliberations by showing racial bias “was a significant motivating factor” of the conviction.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

Female Inmates Sue over BOP Guidelines for Transgender Males

Three female inmates have sued to block BOP transgender policies under Obama from being applied at their Texas incarceration site.  

Three female inmates have sued to block BOP transgender policies under Obama from being applied at their Texas incarceration site.

 

By Christopher Zoukis

Three female inmates in a federal prison in Texas have gone to court in an attempt to block a Bureau of Prisons (BOP) policy that requires them to share bathrooms and showers with inmates who identify as transgender females but are biologically male.

On Feb. 15th, inmates Rhonda Fleming, Jeanette Driever, and Charlsa Little sued to block the BOP policy from being applied at the Federal Medical Center Carswell, a medical facility and camp located at the Fort Worth naval air station.

Months earlier, the plaintiffs had attempted but failed to persuade a federal judge in Fort Worth to expand a temporary injunction to include their incarceration site. The temporary injunction blocked an Obama administration directive giving bathroom access to public school students based on their gender identity.

On March 14, the Texas Senate approved the transgender bathroom bill that would, among other things, impose escalating fines on schools or governments that allow transgender people to use bathrooms that conform with their gender identities. A vote on the bill takes place March 15.

The inmates’ lawsuit claims the current policy forces them to live in a dangerous and degrading environment and share intimate facilities “with men who allege they are women,” but who "openly express their sexual desire” for the female inmates in settings where they are only partially clothed or naked. They also allege transgender men intentionally exposure themselves to the female inmates.

Their lawsuit also claims that one male transgender inmate, who was 6’5” and weighed over 200, was assigned to the Special Housing Unit (SHU) of the facility and warned officials there not to assign him to share a cell with a certain female inmate, since if they did, “he would rape her.” Female inmates with SHU assignments, the lawsuit argued, would be “subject to government-sanctioned rape.”

The BOP's 15-page “Transgender Offender Manual,” issued in mid-January, provides staff with guidance for dealing with “unique issues that arise when working with transgender inmates,” and states the views of transgender or intersex inmates as to their own personal safety “must be given serious consideration.” It also advises that transgender inmates must be allowed to shower separately from other inmates if they so desire. But the manual also advises that housing assignments for transgender or intersex inmates must consider case-by-case the inmate’s health and safety and potential security or management problems.

The Trump administration has already revoked earlier guidance from the Department of Education on transgender students’ access to bathrooms and similar facilities, so the BOP policy could also be revised in the future. But if that doesn’t happen, the female inmates from Fort Worth could face serious difficulties prevailing in their lawsuit, which is before the same judge who granted the injunction against the DOE policy.

In the first place, the three inmates are thus far representing themselves. In addition, the judge hearing their case has already cautioned them, when denying their request to extend his DOE injunction, that challenges to conditions of incarceration first require attempts to win administrative relief from prison officials.

It’s also unlikely to help the case that lead plaintiff Fleming, who’s serving a lengthy sentence as ringleader in a Medicare-Medicaid fraud scheme, has a history of filing unsuccessful lawsuits. In fact, in 2000 a federal appeals court ordered she not be permitted to file in forma pauperis (without paying filing fees, due to indigency) in any federal court, unless able to show she was in imminent danger of serious personal injury.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

 

High Court Rebuffs Inmate’s Challenge to Execution Drug

A death-row inmate's appeal to the Supreme Court on a controversial sedative to be used in his lethal injection was struck down, despite two dissenting justices.

A death-row inmate's appeal to the Supreme Court on a controversial sedative to be used in his lethal injection was struck down, despite two dissenting justices.

By Christopher Zoukis

Despite dissent by two justices, in Arthur v. Dunn, the U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.

Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.

Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.

In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative executionmethod with a significantly lower risk of pain.

Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.

After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.

That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”

Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

Death Row Inmate’s Sentence Appeal Allowed After Expert Testified Race Makes Him More Likely to Offend Again

The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck's trial. 

The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck's trial. 

By Christopher Zoukis

The U.S. Supreme Court decided Texas inmate Duane Buck can keep arguing for a new hearing on his death sentence, because at his original sentence hearing, a psychologist testified Buck, as an African-American, was more likely to commit a future violent crime.

At that time, Texas death sentence law required a jury to find that a convict posed a likely future danger to the community. At Buck’s hearing, an expert witness, psychologist Dr. Walter Quijano, opined there was only a “low” likelihood Buck would commit further violence if given a life sentence rather than executed, but added that statistics showed Buck’s race “increased the probability” he would commit another violent crime. Buck didn’t challenge the verdict, but attacked the sentence as tainted by the racial comments.

Defending the sentence, Texas argued that the facts of Buck’s case made it less likely racially-charged testimony would prejudice the case, as his crimes were particularly “horrific” (the 1995 double murder of his former girlfriend, gunned down in front of her young children, and her new boyfriend, plus the nonlethal shooting of his own stepsister).

The state also argued it couldn’t be blamed, since Buck’s own lawyer had offered the psychologist as a witness at the sentencing hearing. Besides, it was too late to raise the issue of ineffective counsel, which Buck’s lawyer hadn’t raised in the first post-conviction appeal.

Writing for a six-member majority in the Feb. 22 decision in Buck v. Davis, Chief Justice John Roberts found Buck entitled to have a lower court review the sentence, because he had shown ineffectiveness of counsel; Texas had already admitted error in allowing Dr. Quijano’s testimony about six other defendants, and given them new sentencing hearings, but refused to do so for Buck.

Roberts’ decision swept away the state’s objections, reversing prior decisions by a federal district court and a federal appeals court on numerous issues: what constitutes ineffective representation by counsel, the standard of review for challenging an earlier sentencing decision, and how an inmate can show “extraordinary circumstances” needed to challenge a sentence belatedly.

What mattered, in Roberts’ view, wasn’t which side introduced Quijano’s testimony, but the likelihood it could have affected one or more jurors’ views on the key issue of whether Buck would reoffend. His ruling gives Buck a renewed chance to try to persuade the lower court (which earlier rejected his appeal) to reopen the sentencing hearing.

In a harsh dissent, Justices Clarence Thomas and Samuel Alito said the majority opinion “bulldozes procedural obstacles and misapplies settled law” to justify the desired result, but takes comfort that the new decision, due to “highly unusual” facts, is likely to have scant precedential value.

It’s not the Court’s first set-to on Buck’s case. In 2011, in Buck v. Thaler, the high court passed up an earlier chance to hear a review petition from Buck, when four justices couldn’t be mustered to vote to take the case. Then, in unusual actions, Justices Sotomayor and Kagan issued a dissent from the decision not to hear the case, and Justices Alito, Scalia and Breyer published an explanation why they voted against hearing the case — saying Buck couldn’t challenge statements by his own witness and they agreed with lower court decisions.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

High Court to Weigh If Withheld Evidence Undoes Old Convictions

The Supreme Court will review the convictions of seven people in a 1984 murder case based on evidence withheld from defense lawyers during trial.

The Supreme Court will review the convictions of seven people in a 1984 murder case based on evidence withheld from defense lawyers during trial.

By Christopher Zoukis

After the District of Columbia’s highest local court declined to act on the issue, the U.S. Supreme Court has agreed to review two cases challenging the convictions of seven young people in a horrific 1984 murder case, because prosecutors withheld evidence from defense lawyers that pointed to other suspects, or weakened government witnesses’ testimony.

The Supreme Court will take up Turner v. United States and Overton v. United States March 29. The appeals hold the potential to revamp standards for how courts should decide whether prosecutors’ failure to disclose exculpatory evidence to defense counsel, as required by the high court’s landmark 1963 decision in Brady v. Maryland, forces convictions to be reversed.

On Oct. 1, 1984, Catherine Fuller, a 48-year-old cleaning woman and mother of six, had started walking from her home in northeast Washington, D.C. to a local store when she came across a group of youths hanging out in a nearby park. A few hours later her body was found in an alley; she had been dragged into a garage, robbed, brutally beaten, stripped and sodomized with a metal pole.

Investigating the high-profile murder, DC police questioned hundreds of witnesses and eventually focused on a then-little known local gang, the Eighth and H Crew. After arresting 17 individuals, prosecutors eventually charged a dozen defendants, including one woman, with the robbery, assault and murder.

In a six-week trial late in 1985, two defendants turned state’s evidence, got deals on lesser charges, and implicated the others. The lone woman and another defendant were acquitted, but the remaining eight defendants were convicted and given lengthy sentences. One died in prison, another was released in 2010, but six are still behind bars. All have consistently denied being involved in the crime.

Seeking to overturn their convictions, the appellants point to several issues. The two defendants who accused them have since recanted, claiming they were pressured by police and provided information on the case for their statements. Appellants also claim prosecutors violated the Brady decision by failing to share with defense lawyers statements from witnesses about other suspicious actions people observed in the area about the time Catherine Fuller was attacked, or who had told others they took part in the attack.

Specifically, they noted that, besides various statements that could have undercut prosecution witnesses, prosecutors failed to disclose evidence on two alternative suspects who were in the neighborhood at the time and had records of violent robberies of middle-aged women.

In 2015, the D.C. Court of Appeals heard those arguments but decided there was “overwhelming” evidence for the defendants’ guilt and said their co-defendants’ recanting of accusations against them was “not worthy of belief.” To have their convictions overturned, the DC appeals court concluded, defendants would have to show there was a “reasonable probability” they would not have been convicted if their defense team had been given the withheld evidence.

The Supreme Court took the case to examine whether D.C. used the correct standard for determining when Brady violations require overturning convictions. The case has attracted considerable interest from both prosecutors and defense lawyer groups, due to the potentially far-reaching consequences of a change in the standard of review of Brady violations.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

 

FCC Stops Defending Prison Phone Rate Cap Rules

The FCC is no longer defending the phone cap rates it pushed for in 2015 to prevent exorbitant rates for inmate phone calls. 

The FCC is no longer defending the phone cap rates it pushed for in 2015 to prevent exorbitant rates for inmate phone calls. 

By Christopher Zoukis

Following a change in its makeup, the Federal Communications Commission (FCC) has reversed its position on rate-cap rules for many inmate calling services which the agency adopted – by a narrow 3-2 party-line vote in October 2015.

Those rules have not yet taken effect, due to legal challenges pending before a federal appeals court in Washington, DC, and the FCC has served notice with the court that it will no longer defend key parts of those rules.

Until late January, the FCC and the Department of Justice had defended the rules against six pending lawsuits brought by inmate phone services providers, nine states, and two groups of state and local corrections officials— about the same number of states supported the rules, however. Opponents argued the FCC exceeded its authority in several ways: by extending rules already in effect for interstate calls to also cover intrastate calls (which make up about 80 percent of inmate calls), and by setting rates too low for providers to make a profit.

The FCC’s regulatory and litigation battles over capping prison and jail phone charges have been going on for years. In 2013, responding to a citizen petition, the agency placed interim caps on interstate calls (21¢ per minute for interstate calls and 25¢ per minute for collect interstate calls). At the same time, the FCC also began a rulemaking proceeding to look at curbs on charges for other services. In 2015, the agency lowered the per-minute rate for interstate phone calls to prisons to 11¢, with per-minute rates for jails ranging between 13¢ and 22¢, depending on size.

Besides attacking the coverage of intrastate calls as beyond the FCC’s lawful powers, some opponents of the rules, including major providers of inmate calling services, such as Securus Technologies and Global Tel Link , contended the agency’s method for calculating rates wrongly put them below their costs, especially since the FCC formula fails to take into account the sizable commission payments required by contracts with some state and local facilities – which some cap backers call “kickbacks.” Some sheriffs warned moving against those payments would lead them to drop prisoner phone services.

By late January, two FCC backers of the rule, both Democrats, had left the agency. The former agency head resigned and the term of another member expired. The Trump administration promptly filled the vacant chairmanship with a Republican already in the commission, Ajit Pai, an outspoken advocate of deregulation and a harsh critic of the prison phone rate caps, who noted the federal appeals court has acted to freeze the agency’s actions on prison rate caps four times.

Within days, the new chairman notified the court considering the challenges to the rate cap rules that the FCC would no longer defend major parts of the rules. The Department of Justice soon said it would follow the FCC’s lead.

At a Feb. 6 hearing before a three-judge panel of the appeals court, the remaining Democratic FCC member filed a written statement stressing the importance of phone calls to those incarcerated and their families, and the FCC had turned over part of its scheduled time to a lawyer representing advocates of prison rate caps. 

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Ex-convict Uses IDs of 700 Inmates to Gain $600K in Bogus Tax Refunds

Some inmates provided ID information to scammers who filed fraudulent tax returns in the inmates' names.

Some inmates provided ID information to scammers who filed fraudulent tax returns in the inmates' names.

By Christopher Zoukis

Two California men are awaiting sentencing for claiming fraudulent tax refunds made with the names and identification information of more than 700 jail and prison inmates.

On Jan. 24, a jury in a federal case in California convicted Howard Webber, a 52-year-old ex-convict who has served time in Milwaukee, Santa Clara and San Quentin, of wire fraud, mail fraud and conspiring to commit mail fraud, for his part in the scam.

Webber and accomplice Clifford Bercovich, a 69-year-old disbarred lawyer, set up a bogus firm, Inmate Assets Recovery and Liquidation Services, and Webber signed up inmates incarcerated with him for a service that supposedly could help them obtain government benefits. At least some of the inmates reportedly received $75 from the schemers to provide their identifying information. Using the information, the defendants then filed for bogus tax refunds in the inmates’ names.

Over 700 tax refunds wrongly issued in the names of the inmates went not to the inmates in whose names the refunds were claimed, but instead to mail boxes and bank accounts Webber and Bercovich had set up. Federal prosecutors claimed the pair split more than $600,000 in the approximately two years (2010 to 2012) their scam was running.

The bogus tax returns claimed income from self-employment and took advantage of refundable tax programs like the Earned Income Tax Credit (EITC), the Making Work Pay Credit, or both. Those programs provide for cash refunds to low-to-moderate income taxpayers, even those not earning enough to owe taxes.

The programs have often been criticized as fraud-prone. The inspector general for the Internal Revenue Service has estimated over one-fifth of EITC payments are improperly issued, though defenders of the credit argue that payments can be deemed improper without being fraudulent. They also point out government officials estimate at least 3.5 million, and perhaps as many as 7 million, taxpayers who meet the standards for EITC payments do not file for them.

From a modest start in 1975, the EITC program has been repeatedly extended and expanded, and now is one of the federal government’s largest anti-poverty programs. Many states have also added similar programs to their tax laws. The program paid out more than $7 billion to about 29 million families in 2014. Even so, the EITC program is the only one at IRS which White House budget officials have designated as “high-risk.”

As a result, Congress has ordered a slowdown of refund payments to EITC claimants, to allow more time for checking for fraud or identity theft. The IRS says in 2014 it paid out $3.1 billion to identity thieves who filed fraudulent returns, down from $5.8 billion in 2013. During those two years, the agency says it detected and blocked payments on almost $47 billion in fraudulent claims for refunds.

Webber’s accomplice, Bercovich, pleaded guilty in December to conspiracy, mail fraud and aggravated identity theft charges. He initially persuaded the trial court he could not be charged with aggravated identity theft, since the identity information had been voluntarily provided. But a three-judge panel of the federal appeals court in San Francisco disagreed and reinstated that charge.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

 

Appeals Court: Detainees Can Sue Over Jail’s Laundry Policy

A federal appeals court is allowing former prisoners to proceed with a lawsuit over a policy that forced them to remain unclothed for hours each week.

A federal appeals court is allowing former prisoners to proceed with a lawsuit over a policy that forced them to remain unclothed for hours each week.

By Christopher Zoukis

A federal appeals court has overruled a lower court decision that rejected a lawsuit filed by detainees in a Missouri county jail attacking a policy as unconstitutional. The policy forced them to remain naked for about seven hours at least one or two times a week while their only clothing was being laundered.

In July 2015, groups of current and former prisoners held at the Cole County jail in Jefferson City sued the county and the jail warden and deputy, claiming the jail’s laundry and related policies combined to deprive them of constitutional rights.

The trial record established jail rules required male prisoners’ clothing to be laundered every two or three days, and female prisoners’ clothing after four days’ use. Jail residents were given only a single set of clothes and not permitted to clean their own clothing or to wear other clothes of their own while their jail-issued clothing was being washed overnight.

As a result, while deprived of their clothing, they could cover themselves with bedsheets or blankets, but might otherwise be visible to other prisoners or guards who delivered washed clothing to cells. The record also noted opposite-sex guards sometimes deliver the clothing, and another prison rule forbade covering or blocking cell windows allowing occupants to be viewed.

Two months after the lawsuit was filed, the trial court dismissed the case, accepting the county’s arguments the prisoners had not made out a constitutional claim. In throwing out the case, the trial court noted that for most of the time the prisoners would be naked, they would be in bed in their cells.

Echoing county arguments that the laundry rules served hygienic and cleanliness purposes, the trial court found the jail rules being attacked amounted to no more than “minimal deprivations,” well short of violating constitutional rights. It further held, since no constitutional rights had been denied, jail officials had limited immunity to being sued.

But on Jan. 17, a three-judge panel of the St. Louis-based 8th Circuit unanimously decided, in Ingram et al v. Cole County et al, that the trial court had erred. Because the prisoners bringing suit were pretrial detainees rather than convicted inmates, both courts analyzed the constitutionality of jail practices under the 14th Amendment’s requirement of due process, rather than under the 8th Amendment’s prohibition against cruel and unusual punishment.

For the appeals court, this distinction was significant, because the 14th Amendment forbids punishment of pretrial detainees, since they have not yet been convicted. So the key test, the appeals court said, was whether policies attacked in the lawsuit were so arbitrary or purposeless as to constitute punishment without a valid correction purpose.

The appeals court stopped short of deciding that question, but did rule there was enough evidence in the record to form the basis of a claim on which the detainees should be heard. One appellate judge, for example, noted the absence of any official explanation of why the jail couldn’t stock or wash enough clothes to prevent frequent, recurring periods that detainees would be left without clothing. The case is now scheduled to return to the lower court to examine the purposes and justification for the jail’s practices.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Answering the Real Questions About Federal Prison

What happens on the first day of prison? Are showers really that scary? 

Thousands of people are sent to federal prison each year in the United States. Add to that the many family and loved ones effected when someone they know is going to prison, and you have a larger percentage of the population who have burning questions about life in prison. 

Finally, there is a comprehensive, realistic guide to surviving in a federal prison - the Federal Prison Handbook.

“I wanted to provide a definitive guide for individuals facing incarceration, prisoners who are already inside and their friends and family,” says author Christopher Zoukis, a college-educated inmate and prison advocate.

The newly-released Federal Prison Handbook compiles information to not only help prisoners and their loved ones protect themselves and their rights, but to help keep prisoners safe by explaining how to avoid the near-constant conflicts found inside prisons. 

Some of the topics inside include:

  • What to expect on the day you’re admitted to prison, and how to greet cellmates for the first time
  • What to do about sexual harassment or assault 
  • The best ways to avoid fights, and the options that provide the greatest protection if a fight cannot be avoided
  • Medical, psychological and religious services
  • How to communicate with the outside world through telephones, computers and mail.
  • What you can buy in the official commissary and the underground economy
  • How to avoid scams, schemes, theft and other problems
  • Comprehensive analysis of Federal Bureau of Prisons policy and regulatory guidelines
  • And much more!

About Christopher Zoukis

Christopher Zoukis is an outspoken prisoners rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis and the Federal Bureau of Prisons at prisonerresource.com.

Media Inquiries

Christopher Zoukis is pleased to speak with media by telephone about topics related to prison education and justice reform. For more information or to book an interview, email his publicist or send a request in writing to:

Christopher Zoukis
Federal Correctional Institution Petersburg
P.O. Box 1000, #22132-058
Petersburg, VA 23804

What Others Say About the Federal Prison Handbook

"A true resource for anyone involved with the prison system." -- Alan Ellis, America's leading federal criminal defense attorney
"Provides a wealth of useful information and solid advice. . . [A] treasure trove of penal acumen and knowledge." -- Alex Friedmann, Managing Editor, Prison Legal News
"The Federal Prison Handbook is one of my go-to guides for matters related to the federal prison system. An invaluable resource for attorneys . . . , prisoners, and their families." -- Jeremy Gordon, federal criminal defense and appellate attorney, General Counsel of Prisology
"This is the most informative . . . prison handbook that we've ever seen; and we've seen them all." -- Mark Varca, expert attorney and Chairman of FedCURE

Obama’s Clemency Totals: 1,715 Commutations, Including Secrets-Leaker Manning

President Obama granted a record-setting number of commutations during his administration, including some recent controversial ones.

President Obama granted a record-setting number of commutations during his administration, including some recent controversial ones.

By Christopher Zoukis
 
With less than four days left in office, On Jan. 17 president Obama commuted nearly all of the 28 years remaining in the 35-year court-martial sentence of Chelsea Manning, the former army intelligence analyst who copied over 700,000 archived military and diplomatic files — some classified — and sent them to WikiLeaks. The reduction in Manning’s sentence was part of 273 commutations issued that day.

Also receiving a commutation of a lengthy sentence was Puerto Rican independence activist Oscar López Rivera, who was sentenced in the 1980s to 55 years for conspiracy, firearms and explosives offenses, and other violations connected to Fuerzas Armadas de Liberación Nacional (FALN) bombings in the ’70s and ’80s, plus another 15 years for a failed escape attempt.

Two days later, the White House announced the departing president’s final batch of 330 clemency actions, including 64 pardons, an area in which Obama lagged many of his predecessors. Receiving a pardon was former Joint Chiefs of Staff vice-chair Marine General James Cartwright, who was due to be sentenced soon on a guilty plea of lying to FBI investigators investigating leaks on covert U.S. efforts to impede Iran’s development of nuclear weapons.

The final batch of pardons did not include relief for some prominent inmates who had requested clemency, such as Illinois ex-governor Rod Blagojevich, now in his fourth year of a 14-year sentence on corruption charges, or Army deserter Bowe Bergdahl, facing trial this spring after being exchanged for five Taliban members, much less for other prominent figures who did not seek pardons for possible future charges, such as secrets-leaker Edward Snowden.

By the end of his two terms, Obama had commuted the sentences of 1,715 federal inmates, including 568 who were serving or facing life sentences. He also issued a total of 212 pardons. The total 1,927 clemency actions by Obama topped all presidents since Harry Truman, and his commutations exceeded the combined total for his 12 most recent predecessors.

The majority of clemency recipients were serving time for nonviolent drug offenses, on which Obama has focused his attention, especially over the past two years. But the greatest attention —and most controversy — centered on Obama’s order to cut short the record-length sentence that a military court handed down to former Army Pfc. Bradley Manning, setting Manning free May 17, rather than in 2045.

Shortly after enlisting in the army, Manning was assigned to Iraq to monitor movements of insurgent forces. Given access to intelligence archives, the 22-year-old private downloaded combat reports from Afghanistan and Iraq, including sensitive reports on abuses of detainees, then sent them to WikiLeaks. Convicted in 2013 in a military court of six counts of Espionage Act violations, though not on charges of aiding the enemy, Manning is currently confined in the military prison at Fort Leavenworth, Kansas.

In pleading guilty to some charges, the ex-soldier – who enlisted as Bradley Edward Manning – spoke about the great psychological pressure of disguising her identity as a transgendered woman. The commutation was issued to Chelsea Elizabeth Manning, the name she legally adopted in 2014.

In his final news conference, Obama defended his order, saying Manning had “served a tough prison sentence… disproportionate” to those previously handed down for similar offenses.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Florida Legislator: Private Prison’s Charges Inflated by $16 Million

Private-run prisons are intended to save  money, yet taxpayers on the hook for millions in over payments for Lake City Correctional Facility in Florida.

Private-run prisons are intended to save  money, yet taxpayers on the hook for millions in over payments for Lake City Correctional Facility in Florida.

By Christopher Zoukis

A Florida state representative claims the operator of a private prison has overcharged the state Department of Corrections by at least $16 million over the past seven years.

Rep. David Richardson, who holds an MBA degree and was an auditor for the Defense Department, an accountant with Ernst & Young, and ran his own practice before Miami Beach residents elected him to the state Legislature in 2012, says Tennessee-based CoreCivic, formerly known as the Corrections Corporations of America, benefited from state officials’ errors or worse in the contract it received to run the state’s Lake City Correctional Facility, which houses almost 900 male offenders between the ages of 19 and 24.

The legislator says he has not uncovered any wrongdoing by the private firm, since they are billing the state corrections department in line with data submitted by that agency and according to contract terms negotiated by the state’s Department of Management Services. But poor negotiating and supervision have given the private firm a contract that has resulted in the state making substantial overpayments in a number of areas.

For example, according to Richardson’s analysis of the contract and related bills and payments, the Lake City facility, constructed by the state in 1997 but leased to the private firm for the past seven years, includes air conditioning, unlike many older prisons. Yet the contract with CoreCivic makes the state, rather than the company, responsible for covering the costs of running that system, and has meant millions in charges to taxpayers.

At the state-run Brevard Correctional, another, slightly larger facility for youthful offenders, Richardson notes, the state’s daily outlays per inmate for certain activities amounted to $3.62; atLake City, however, the contract had the state paying nearly three times that amount -- $9.85 – daily for each inmate. Inconsistencies in the contract favoring the private firm brought it allowances for educational programs about four times larger than state-operated ones received.

Ironically, the state Legislature authorized state corrections officials to contract with private prison firms as a way to save money; the authority to privatize some state correctional facilities was conditioned on the state saving 7 percent or more by contracting out. But Richardson claims his review shows that errors and poor negotiations by state officials have produced added state payments that have far outstripped any savings from privatization.

Since joining the legislature, Richardson has made the state’s criminal justice system a major focus, and has made scores of visits to facilities around the state. A state law allows legislators to visit and inspect state prisons at any time.

After compiling what he says was an independent audit of the Lake City contract and cost outlays last spring, Richardson presented a summary of his findings to budget committees of the state Legislature and asked the state’s chief inspector general to look into the issues he had raised. Nevertheless, the state renewed its Lake City prison contract with CoreCivic last summer, making it the company’s third contract extension.

Besides CoreCivic’s contract to run Lake City, other private prison firms currently have contracts to run six other state correctional facilities.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Obama Takes Criminal Justice Victory Lap in Harvard Law Review

Obama's Harvard Law Review article outlines strides made in criminal justice reform, and a to-do list for the incoming administration.

Obama's Harvard Law Review article outlines strides made in criminal justice reform, and a to-do list for the incoming administration.

By Christopher Zoukis

Founded in 1887, the Harvard Law Review is probably the nation’s best-known journal published by law students. The author of the lead article in this January’s issue, who first made history by being the first African-American student elected president of the publication in 1990-91, did so again by becoming the first U.S. president to publish an article in a scholarly legal journal. Barack Obama’s contribution is an extensively footnoted 56-page commentary entitled “The President’s Role in Advancing Criminal Justice Reform.”

Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.

His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.

While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”

The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.

Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.

The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Three California Jail Guards Charged with Murdering One Prisoner, Assaulting Another

By Christopher Zoukis

Three California jail guards have been charged with assaulting and murdering a mentally ill prisoner after he was found unresponsive in his cell shortly after midnight on August 27, 2015.

Santa Clara County jail deputies Jereh Lubrin, Rafael Rodriguez and Matthew Farris were arrested in September 2015 and charged with the beating death of Michael Tyree, 31, a schizophrenic homeless man who had finished serving a five-day sentence for petty theft and was awaiting transfer to a mental health facility. [See: PLN, June 2016, p.63].

The guards were also charged with assaulting Juan Villa, another prisoner, shortly before killing Tyree, according to prosecutors.

“These men violated the law, human dignity, and a job that they were sworn to do,” said Santa Clara County District Attorney Jeff Rosen. A coroner’s report determined that Tyree’s death was due to multiple blunt force injuries to his liver and spleen, resulting in internal bleeding. At a news conference, Sheriff Laurie Smith said she felt “disappointment and disgust” about what had happened, and noted the three jailers were the only people with access to Tyree at the time of his death.

According to the charging documents, on the evening of August 26, 2015, Deputy Lubrin confronted Tyree about a dispute over medication that Tyree had with a nurse in the Santa Clara jail’s unit reserved for prisoners with mental health issues. After the 10:00 p.m. lockdown, Lubrin and fellow deputy Farris entered Tyree’s cell, ostensibly to search for extra clothing; they were joined by Rodriguez ten minutes later.

The same three deputies had just visited Juan Villa’s cell to confront him about a fight he had had earlier, then assaulted him before moving on to Tyree.

Other prisoners reported they could hear Tyree screaming in his “distinctive voice,” saying, “I’m sorry, I’m sorry, please, please, I’m sorry,” accompanied by “the sounds of thumping, wall banging and what sounded like blows to a person’s body,” according to the Sheriff’s Department report included in the charging documents.

After the beating, the jailers did not call for medical assistance and left the unit around 11:00 p.m. It was not until an hour later that Lubrin returned to the unit to make his rounds, then radioed that there was a man down.

At 12:35 p.m., Tyree was pronounced dead.

Fellow prisoner Armando Galvin, who witnessed many of these events, said he’d seen guards use excessive force before. “[Tyree was] pretty much harmless, so I really don’t know why they would go in there and do that to Tyree,” he stated.

In response to Tyree’s death and the resulting public outcry, the Santa Clara County Board of Supervisors made the bold move of deciding to equip jail guards with body cameras – a surveillance tool typically reserved for police officers.

The Board also made a unanimous decision to appoint a “blue ribbon committee” to review jail policies and practices, and elected to install more surveillance cameras. In April 2016, the committee presented its findings and more than 120 recommendations to the Board of Supervisors. The recommendations included greater transparency, reform of processes for handling prisoner complaints and a change of jail administration personnel within the Santa Clara County Sheriff’s Office.

In addition to those reforms, Sheriff Smith announced that she was installing an anonymous hotline for jail employees and prisoners alike to report abuses. Further, new jailers are required to engage in 40 hours of “crisis intervention team” training, which is specifically designed to help them manage mentally ill detainees in crisis.

Not all stakeholders supported the use of body cameras by jail guards. Lance Scimeca, president of the Santa Clara County Correctional Peace Officers’ Association and a sergeant at the jail, explained that fixed cameras should be used instead. His justification was two-fold: one, that body cameras could give informants pause and make them less likely to cooperate, and two, that requiring body cams was unnecessary, even in the wake of the murder charges against his colleagues.

According to Scimeca, “I don’t think it is necessary to have a body-worn camera on a deputy in a secure lunch room, recording him/her eating a Caesar salad....”

Others found obvious flaws with his reasoning, since Tyree wasn’t killed in a secure lunch room and the jailers involved weren’t having a salad when they beat him to death.

The push for additional surveillance equipment came at a time when the Santa Clara jail was embroiled in related scandals involving excessive use of force by guards.

Supervisor Joe Simitian remarked of Tyree’s murder, “[o]nce we start turning over the rocks, we’re going to find some pretty ugly stuff.”

Community activist Shaunn Cartwright testified at a Board of Supervisors hearing about a harrowing event that included a family friend’s son shaving his head so jail guards couldn’t pull him around by his hair.

Others also testified at the hearing, including William Mendoza, who said his mentally ill son had been beaten by guards at the jail. He exclaimed to the Board, “I filed a complaint and nothing was done.... Please, please, please keep everybody safe.”

As reported by the San Jose Mercury News in December 2015, attorneys representing Lubrin, Rodriguez and Farris had sought to bar both the public and press from an initial hearing related to Tyree’s murder, claiming adverse publicity would make it difficult for the three deputies to receive a fair trial.

Despite the best efforts of defense counsel who tried to stop the case from going to trial, in March 2016 a Santa Clara County Superior Court held there was sufficient evidence for the state to proceed with its prosecution of the men.

Defense attorneys had even argued that Tyree most likely killed himself following his interaction with the guards, by jumping off the toilet in his cell.

That assertion, however, was quickly laid to rest when Dr. Joseph O’Hara of the Santa Clara County Medical Examiner-Coroner’s office testified it was not possible. As stated by O’Hara, Tyree had been beaten over nearly his entire body, with some of his injuries, such as a lacerated spleen and liver, being on par with those he would expect to see on people who had been hit by automobiles or flung from roofs. As a result of his injuries, said O’Hara, Tyree’s abdominal cavity filled with roughly half his body’s blood, resulting in his death. The doctor testified that Tyree could not have inflected such extensive injuries on himself.

A trial date of January 23, 2017 has been set for the deputies charged with killing Tyree. If convicted, the three men – each of whom was released from custody on $1.5 million bail and placed on paid administrative leave – face sentences of up to life in prison.

Sources: www.correctionsone.com, www.abc7news.com, www.nbcbayarea.com, www.mercurynews.com, www.sanfrancisco.cbslocal.com

This article originally appeared in Prison Legal News on January 10, 2017.

Despite ADA, Inmates With Disabilities Face Neglect

One third of inmates in federal and state prisons have at least one disability, yet many correctional facilities fall short in handling them.

One third of inmates in federal and state prisons have at least one disability, yet many correctional facilities fall short in handling them.

By Christopher Zoukis

In a 1998 decision, Pennsylvania Department of Corrections v. Yeskey, the Supreme Court made clear Title II of the Americans With Disabilities Act (ADA) prohibits not just federal, but also state and local corrections from discriminating against otherwise qualified individuals due to their disabilities.

First-time offender Roland Yeskey was sentenced to a state prison for 18 to 36 months, but the sentencing court recommended he be admitted to a state-run boot camp for first offenders. If he successfully completed the program, he would be eligible for parole in six months. But due to a history of high blood pressure, Yeskey’s application was rejected. When Yeskey sued, the federal district court agreed with the state official defendants the law did not cover them. An appeals court disagreed and, without a dissent, the Supreme Court ruled ADA Title II clearly applies not just to federal prisons and inmates, but to state and local ones as well.

Despite that unambiguous statement and the ADA’s long history — it was enacted in 1990 — reports and court decisions continue to find violations of ADA’s Title II, which not only forbids discrimination but also mandates services, benefits and programs be offered in settings accessible to participants with disabilities. Title III sets standards for removing or reducing architectural, transportation and communications barriers in places of public accommodation, as does section 504 of the Rehabilitation Act for government facilities.

Although often not given proper recognition, disability issues deserve a prominent place in the minds of corrections policymakers. Department of Justice statistics show approaching one-third of inmates in federal or state prisons claim at least one disability, about three times the rate for the non-incarcerated population; for local jails, nearly two-fifths of inmates report having a disability, about four times the rate for the non-incarcerated.

When these are physical disabilities, advocacy groups have publicized failings and brought litigation, and in many cases won improvements in the way correctional facilities handle particular disabilities. For example the National Association of the Deaf has been active in areas such as getting interpreters for sign language users and addressing telecommunications needs of hearing-impaired inmates and their families. Mental and cognitive disorders are at least as wide spread as physical disabilities: the most recent National Inmate Survey, done by the Bureau of Justice Statistics for the years 2011-12, revealed that about 15 percent of state and federal prison inmates, and 26 percent of local jail inmates, suffer from serious psychological distress, compared with about three percent of the overall national population.

A frequent complaint, and occasional subject of enforcement action, comes in housing disabled inmates in solitary confinement. The Supreme Court in its 1999 Olmstead v. L.C. decision held unjustified institutional segregation of people with disabilities violates the ADA, and other courts have had ample occasion to reiterate that principle. For example, a federal judge in Oakland, California in 2015 ordered the state to stop keeping disabled inmates in solitary confinement units separated from general prison populations, since it violated both Title II of the ADA andseveral earlier court orders.

Headway has recently been made in this area for federal prisoners, but – as the Department of Justice recently noted – there needs to be greater attention to diverting those with serious mental disabilities into appropriate settings where treatment is available.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Sedative’s Humaneness and Availability Raise Issues for Executions

Questions surrounding the effectiveness of — and difficulty obtaining — a new sedative used in executions are raising legal challenges.

Questions surrounding the effectiveness of — and difficulty obtaining — a new sedative used in executions are raising legal challenges.

By Christopher Zoukis

Lawyers for a convict scheduled for execution in Virginia Jan. 18 are challenging a newly sourced sedative that the state plans to use in its three-drug protocol for lethal injections. Doubts about the drug’s effectiveness, and the difficulties obtaining it have already caused other states to discontinue its use or postpone executions.

Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.

They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.

A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.

In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.

Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.

Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.

For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Missouri Jail Detainee Becomes Comatose, Treated in Hospital for Three Weeks

By Christopher Zoukis

In September 2015, Bernard Scott, 44, was arrested for various traffic violations and jailed at the Pine Lawn, Mo. jail in St. Louis County. He was held on a $360 bond.

While in detention he called guards to his cell, where he complained of severe abdominal pain and bleeding. An ambulance from the Northeast Fire Protection District was called to examine Scott. While there paramedic Matthew Pay determined that Scott required immediate treatment and recommended to jail officials that he transport Scott to the emergency room. While jail officials initially directed Scott to put on his personal clothes so that he could be transported to the emergency room, they reversed course and denied the medical request, instead turning paramedic Pay away.

Fourteen minutes following Pay leaving the jail, jail officials allegedly discovered Scott hanging from a shoestring noose in his cell. According to media reports, the angle of his body indicated brain damage. Jail officials again called for paramedics, and another ambulance was dispatched to the jail. This time Scott was allowed to be taken to the emergency room. Following admittance to the hospital, he was comatose for more than 11 days and kept in the hospital for almost three weeks.

Following this report coming to light, jail and medical officials, along with Scott, are in disagreement as to what really occurred. According to Scott, jail officials would not allow him to be transferred to a hospital until he paid his bail, which resulted in him frantically calling family and friends in an attempt to secure the $360 bond. He also asserts that he did not try to hang himself. Pay, the paramedic, wrote in his report that he twice attempted to obtain permission to take Scott to the hospital, but that all attempts were rebuffed. And jail officials disagree with both, instead writing in reports various possible fact situations, many of which contradict the others. The only agreement to be had is disagreement, even unto the point of who was in command at the jail during the incident.

According to Northeast Fire Chief Quinten Randolph, there have been at least six occasions in the past few years where jail officials in his district have refused to release prisoners for transportation to hospitals at paramedic's requests. Following this incident, Michael Robertson's October 2015 jail death due to lack of insulin, and others, area corrections officials have vowed to do better. Only time will tell.

Sources: www.stltoday.com, www.theroot.com, http://theweeklychallenger.com

This article originally appeared in Prison Legal News on December 28, 2016.

Justice Department Probing Orange County’s Use of Jailhouse Informants

DOJ probe to look into allegations that the DA's office in Orange County has used jailhouse informants in ways that violated defendants' civil rights.

DOJ probe to look into allegations that the DA's office in Orange County has used jailhouse informants in ways that violated defendants' civil rights.

By Christopher Zoukis

On Dec. 15, the Department of Justice (DOJ) announced its Office of Civil Rights has launched an investigation of the sheriff’s office and the district attorney’s office in Orange County, California, over repeated claims law enforcers there have systematically used jailhouse informants in ways that violate defendants’ rights.

Authorized by a 1994 crime law, the civil “pattern or practice” probe will look into two claims: first, that the agencies violated inmates’ right to counsel under the Sixth Amendment by using informants to get incriminating statements from inmates who have retained legal counsel, contrary to the Supreme Court’s ruling in Massiah v. United States, and second, that prosecutors didn’t disclose leniency promises made to the jailhouse informants, contrary to their constitutional duty to share with defense counsel any potentially exculpatory information, as spelled out in the Supreme Court’s landmark Brady v. Maryland decision.

The probe stems from a long-simmering political and legal controversy around the sheriff’s and prosecutor’s office practices on use of jailhouse informants, which critics have called unconstitutional or even fraudulent. For three years, an assistant public defender in the county has argued the agencies ran a secret informant system involving perjured testimony by both jailhouse informants and police officers who, he charged, lie “with shocking frequency” in presenting false testimony by informants and covering up their wrongdoing.

One judge, reviewing charges made about official handling of the county’s largest multiple murder case in 2014, found “significant” errors in the prosecutor’s handling of the case —calling it a “comedy of errors” — and ordered the entire county district attorney’s office removed from the case. The prosecutor’s office then responded by challenging the judge’s suitability to preside over scores of subsequent murder cases, and a state appeals court later upheld the prosecutor’s right under state law to do so.

In at least five cases, possible constitutional rights violations have led to reduced sentences — or in one case release on parole — for inmates convicted on murder charges. A year ago, numerous civil rights, civil liberties and church groups, backed by prominent law practitioners and academics, had petitioned Attorney General Loretta Lynch for a DOJ probe of the Orange County law enforcement agencies. The county bar association has also strenuously criticized the agencies.

In announcing the DOJ probe, the head of the department’s Civil Rights Division observed any systematic failure to safeguard an accused person’s right to counsel and a fair trial harms public faith “in the integrity of the justice system.” DOJ acknowledged the Orange County district attorney has agreed to cooperate with the investigation and provide full access to office records.

The Orange County situation also gave impetus to a new state law (AB 1909), passed by the legislature and signed into law by Governor Jerry Brown on Sept. 30, making it a felony for a prosecutor in California to knowingly falsify or withhold material evidence. California laws already made that a misdemeanor for the general public, and a felony for state law enforcement officers. Prosecutors can already face judge-imposed sanctions and be reported to the state bar, which can lead to disbarment. The new law, however, is the first in the nation specifically targeting prosecutors, who can now be sentenced to up to three years for the new offense in California.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Study Shows 39 Percent Reduction In Prison Population Would Not Affect Public Safety

Study draws on three years of research to conclude that releasing 39 percent of nation's prisoners would have no effect on public safety.

Study draws on three years of research to conclude that releasing 39 percent of nation's prisoners would have no effect on public safety.

By Christopher Zoukis

A new study from the Brennan Center for Justice at the New York University School of Law claims imprisoning 576,000 state and federal inmates – 39 percent of the nation’s 1.46 million total – serves no compelling purpose, and alternative sentencing could save almost $20 billion annually without compromising public safety.

The study entitled “How Many Americans Are Unnecessarily Incarcerated?” claims to be the first-ever analysis of the best ways to reduce the social, economic and racial costs of overpopulated prisons. Released Dec. 9 and drawing on three years of research by lead author and veteran criminologist Dr. James Austin, along with Brennan Center researchers and a statistical analysis team, the study first analyzed criminal codes and data on convictions and sentences.

Based on its findings on the relative ineffectiveness of incarceration, the report team recommends a fundamental shift in sentencing to enable state and federal governments to reduce total prison populations down to 887,000.

The study maintains that 212,000 current inmates – or 14 percent of total prisoners – have already served long enough for major offenses that they could be safely released within the next year, and that alternatives to prison – such as community service, electronic monitoring, probation, restitution, or mental health or drug addiction treatments — would be more effective for about 364,000 more, or about 25 percent of total prison populations.

One place to start, the report suggests, are the nearly 66,000 prisoners whose most serious offense is drug possession. On average, they now draw one-year prison sentences which, the report argues, could be better replaced with addiction treatment and possible other alternatives.

If the nation’s prison population were downsized as the report suggests, 59 percent of the remaining inmates would be serving time for violent offenses, compared with the 46 percent at present convicted of such offenses.

The Brennan Center report also recommends a new framework for criminal sentencing, drawing on what it sees as science-based studies on public safety and rehabilitation issues. It rejects the calls for scrapping all or most mandatory and minimum sentences in favor of giving judges virtual free rein in setting sentences, viewing that approach as more likely to bring uneven and unfair results, and to worsen racial disparities in sentencing.

Instead the report proposes that state legislatures and Congress adopt a new solution: diverting less-serious offenses to alternatives to incarceration, absent unusual circumstances, and for more serious offenses setting default sentences proportional to four key factors: seriousness, impact on victims, evidence of intent and likelihood of recidivism.

Even for the more serious offenses, the report calls for shorter mandatory sentences, and for allowing judicial consideration of individual factors such as the defendant’s criminal record, addiction or mental health issues, and the specifics of the offense. In that way, the report claims, sentences will be shorter and more uniform, but still leave room for judicial discretion where individual circumstances warrant.

The report also suggests cutting terms by 25 percent for six serious crimes — murder, robbery, burglary, aggravated assault, weapons offenses and major drug trafficking cases — and allowing current inmates to petition for retroactive reductions of their sentences if lower default sentences are adopted.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Scam Draws Huge Volume of Lawsuits by Former Inmates of New Jersey County Jail

A rumour led people who spent time in Camden County Correctional Facility to believe getting in on a class-action lawsuit would bring them compensation.

A rumour led people who spent time in Camden County Correctional Facility to believe getting in on a class-action lawsuit would bring them compensation.

By Christopher Zoukis

The first inkling clerks in a federal courthouse in Camden, New Jersey had that something might be seriously amiss came in August, when they started getting an unusual number of requests for a packet of legal forms and information prepared for persons wanting to file a pro se civil lawsuits (filed by individuals without the assistance of an attorney).

Within a month, to cope with a strong, ongoing demand, the clerks had to send the packets — usually produced in-house — out to a printer. But the long lines of people waiting to get the packets caused so much congestion in the courthouse hallways that the court clerks began giving them to the guards in the courthouse lobby to pass out to those seeking them.

Then came the lawsuits. Some handwritten, first a trickle and then a flood, seeking money damages for having spent time in the city’s notoriously overcrowded Camden County Correctional Facility. Some complained of having been jailed with three other inmates in a cell designed to house two prisoners; other complained of having had no bed spaces and sleeping on cell floors in rat-infested cellblocks.

And the lawsuits keep coming – as many as 50 in a single day, in a court that averages about 200 civil lawsuits filed per month. Over the span of a few months, around 1,800 filings came in, forcing the court to bring in workers from other district courts to deal with the avalanche of filings. Many of the submissions were invalid, failing to meet either the filing requirements or to state a claim on which the court could grant relief— for example, by failing to meet the two-year deadline for filing garden-variety injury claims, or by alleging harms that could not amount to a constitutional violation.

County officials eventually discovered what generated the tsunami of pro se lawsuits on the county jail’s conditions. Apparently, several people had been working the city’s streets, spreading the news that there was a class-action settlement authorizing cash payouts to anyone who had ever spent time in the overcrowded jail, which had been built to accommodate slightly more than 1,200 inmates but had for long stretches housed 1,800 or more. One account said at least one scammer claimed to have received a cash pay-out of $1,000 per day at the court, and offered to sell potential claimants the legal forms they would need to claim their recovery. Potential claimants likely felt they had a legitimate chance at compensation. There was, in fact, a long-running class action, filed in 2005, by inmates claiming conditions in the Camden jail were so bad as to violate their constitutional rights. But that case neither sought money damages nor had been settled.

In late October, the district judge posted an announcement that there was no class-action settlement or ready payments for the county jail’s ex-inmates, and a similar notice was soon inserted in the pro se form packets. When even those steps failed to stem the tide of claimants, the courthouse got a new notice from the judge denouncing the false rumor for wasting the time of both plaintiffs and court workers. 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Ferguson, Missouri Under Fire for Revenue-based Criminal Justice System

By Christopher Zoukis

Following 2014 protests in Ferguson, Missouri ignited by the killing of an unarmed black youth by a white police officer, some local law enforcement practices have been changed. The reforms were spurred, in large part, by a U.S. Department of Justice (DOJ) report that found Ferguson’s police department and court system were motivated in their tactics – which fell most heavily on the town’s African-American population – by the desire to generate revenue from citations, fines and court costs.

According to the March 2015 DOJ report, which detailed the “patterns and practice[s]” of Ferguson courts and law enforcement officials, while the town’s black population accounted for 67 percent of its overall population, that demographic accounted for 93 percent of all arrests, 90 percent of all citations issued and 85 percent of all traffic stops initiated by the Ferguson Police Department.

The DOJ found that Ferguson police and court officials had essentially applied excessive law enforcement tactics for the purpose of generating revenue off the backs of the town’s mostly black and impoverished residents. The report further noted that these types of practices were likely widespread in neighboring municipalities in St. Louis County.

As such, the DOJ recommended more than two dozen reforms of city police and court practices, including greater transparency in court procedures, discontinuing arrest warrants as a means of collecting outstanding fines and court fees, reducing fines and fees, and implementing payment plans for people unable to pay what they owe.

Noting several violations of federal law pertaining to racial discrimination, as well as rampant suppression of citizens’ First Amendment rights, the DOJ made it known at the time of the report’s release that if the city did not comply with the recommendations it could face federal court action.

When the report was issued, the City of Ferguson had reportedly started implementing some reforms – including “bias-free policing” education for officers; reduction of jail time for warrantless arrests, from 72 to 12 hours; streamlining bail bond procedures; and requiring officers to gain supervisor approval to issue more than two citations per traffic stop.

According to the DOJ report, in 2013 Ferguson raked in $2.6 million in court fees and fines. In 2015, the city was projected to take in $3.09 million out of a total $11.07 million in general revenue funds.

A revenue-based justice system that mainly targeted minorities was well-established in Ferguson by the time riots broke out in 2014 following the shooting death of Michael Brown, 18, by police officer Darren Wilson. As noted by then-U.S. Attorney General Eric Holder, the city’s profit-oriented policing had “severely undermined the public trust,” resulting in a “powder keg” situation where Brown’s death was the match.

In 2010, Ferguson, with a population of 21,000 residents, ranked in the top eight of 80 municipal courts in St. Louis County in terms of revenue. By 2012, annual revenue generated by the town’s court system had exceeded $2 million, prompting Ferguson’s manager to email the police chief stating, “Awesome! Thanks!” The town issued 25,000 arrest warrants in 2014 – an average of three per household. Clearly, this indicated a problem of massive proportions.

Perhaps the most concerning practice in Ferguson, besides the shooting of an unarmed young black man, was the culture of fines promoted by law enforcement. The DOJ report found that virtually every cog in the town’s municipal machinery, from traffic cop to city council member, participated in the revenue-gathering scheme.

Police officers were pushed to increase the number of traffic tickets they issued. In fact, some officers who failed to write an average of 28 tickets per month were disciplined. In general, the police competed “to see who could issue the largest number of citations during a single stop.” The winner was a cop who wrote 14 citations in one traffic stop.

According to the DOJ report, “City, police and court officials for years have worked in concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established.... [Such policies focus on] revenue rather than public safety needs.” The report added that Ferguson public officials had “made clear to the police chief and the municipal judge that revenue generation must be a priority in court operations.”

Court fines come from a variety of sources. The Ferguson Municipal Court charged defendants $125 for failure to appear, $50 for a warrant to be executed (plus 56 cents per mile the police drive to serve the warrant), and $30 to $60 per night in jail. Those fines are often combined, resulting in substantial bills. In 2013, the average fine imposed in Ferguson due to a guilty verdict was $275.

A contributing factor to such high fines was that the Municipal Court is only in session three days each month. As such, if a defendant can’t afford bail they must pay to stay in jail until the next court session – which also creates an incentive for defendants to plead guilty in order to speed their release.

Further, courts have taken other measures seemingly intended to ensure defendants incur more fines. According to ArchCity Defenders, a St. Louis-based watchdog group, municipal court judges often start hearing cases up to 30 minutes prior to their scheduled time and lock the doors five minutes after, forcing defendants to miss court dates and thereby increasing fine revenue.

Beyond criminal matters, Ferguson officials charged residents $102 for a parking fine whereas similar fines in other towns often ranged from $5 to $100. While a neighboring city had a $5 fine for “weeds/tall grass,” the fine in Ferguson was $77 to $102. Other finable offenses included “manner of walking” (95 percent of such tickets were issued to blacks), “failure to obey” (89 percent were issued to blacks) and “failure to comply” (94 percent were issued to blacks). Many civil rights activists accused Ferguson officials of racially-biased policing.

Following the DOJ’s investigation and report, Missouri Governor Jay Nixon signed into law two pieces of reform legislation, passed in 2015 and 2016, respectively, with the intent of curbing revenue-driven law enforcement tactics.

The 2015 law reduced the amount of revenue a city government could raise from traffic fines and court fees from 30 to 20 percent – except in St. Louis County, where the total revenue derived from those sources was capped at 12.5 percent. The 2016 law placed restrictions on fines for violations of municipal ordinances, such as those related to pets and lawn care.

In March 2016, following a legal challenge by several St. Louis County cities, a state court judge held that the statutory limitation on fines and fee revenue specific to St. Louis County was unconstitutional. In response, Governor Nixon said he would work with the legislature to implement revised reforms.

A report issued by Better Together St. Louis in October 2014 found that 14 towns within St. Louis County derived their largest source of revenue through court fines and fees. The report identified another 29 city governments within the county that derived more than 12.5 percent of their revenue from those sources.

During the time that the 12.5 percent statutory limit on fine and fee revenue was in effect, at least two St. Louis County municipalities, Charlack and Wellston, were forced to close their small police departments.

Charlack, with a population of 1,300, had earned a reputation as a speed trap, drawing roughly 29 percent of its total revenue from fines and fees levied on motorists traveling along a stretch of Interstate 170 near the Lambert-St. Louis International Airport.

Similarly, Wellston has a population of 2,300 and occupies an area of less than one square mile. Its police department, with 17 patrol officers, was, arguably, not needed – though it provided the city with 12.2 percent of its total revenue, obtained through various fines and court costs.

Once additional reforms are implemented, Ferguson and other municipalities in St. Louis County will have to learn how to operate without exacting a large portion of their revenue from fines, fees and related criminal justice costs imposed on mostly minority and poor residents.

Sources: Associated Press, www.motherjones.com, www.cnn.com, www.stltoday.com, www.library.municode.com, www.governing.com, www.startribune.com.

This article originally appeared in Prison Legal News on December 8, 2016.