New Hampshire Cancels Private Prison Bids, but Bill Prohibiting Prison Privatization Fails to Pass

By Prison Legal News

After the state of New Hampshire hired a consulting group last year to help evaluate bid proposals for the “construction, operation and potential privatization” of the state’s entire prison system, it was determined that all of the bids “had deficiencies from an operational standpoint,” according to a report issued by New Hampshire’s Department of Corrections (DOC) and Department of Administrative Services (DAS). The report further found that the proposals were “non-compliant with meeting the Department of Corrections’ legal obligations.”

By April 2012, New Hampshire officials had received bids from four companies to build and/or operate a facility to house male prisoners and a “hybrid” prison that would hold both male and female offenders. The bidders included Corrections Corporation of America (CCA), GEO Group, Management & Training Corp. (MTC) and the relatively unknown NH Hunt Justice Group LLC – a partnership between LaSalle Corrections, Hunt Companies and several other firms.

To evaluate the detailed and voluminous bid proposals, state officials organized three evaluation teams made up of staff from the DOC and DAS. Additionally, in July 2012 the state paid $171,000 to hire an “independent consultant” – MGT of America, Inc. – to assist with the review by evaluating the “operational and financial aspects of the vendors’ responses.”

Careful observers noted a glaring conflict of interest with respect to MGT: One of the MGT consultants evaluating the prison privatization bid proposals was George Vose, who previously served as Senior Vice President for Operations of Community Education Centers (CEC), a private prison firm that runs 17 jails and 34 halfway houses. Vose currently serves on CEC’s Board of Directors.

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Plata and Coleman Showdown in California

By John E. Dannenberg

A three-judge federal court tightened the noose around the neck of the California Department of Corrections and Rehabilitation (CDCR) in April 2013 when it issued a lengthy order denying a motion by state officials to delay or modify the court’s prison population reduction order that was upheld by the U.S. Supreme Court in May 2011. See: Brown v. Plata, 131 S.Ct. 1910 (2011) [PLN, July 2011, p.1]. The court also denied the CDCR’s request to end the federal receivership over the state’s prison mental health care. The sockdolager came when the court threatened the CDCR and California Governor Jerry Brown with contempt if they did not follow the court’s directives after decades of litigation.

On April 5, 2013, U.S. District Court Judge Lawrence K. Karlton issued a 68-page order in Coleman v. Brown, U.S.D.C. (E.D. Cal.), Case No. CIV S 90-520 LKK/JFM (PC) – the 23-year-old case that resulted in a special master being appointed by the court to oversee mental health care in CDCR facilities – denying the defendants’ motion to “terminate all relief in this action, vacate the Court’s judgment and orders and dismiss the case.”

Judge Karlton first noted that the state is currently under an order to reduce its prison population to 137.5% of design capacity by the end of 2013. He said he could not entertain a motion to terminate the relief ordered by the three-judge court or to vacate the population reduction order. Nor could he modify the prison population reduction order, as the defendants asked, because the state had not reached the required population cap. Judge Karlton therefore turned to the defendants’ motion to terminate mental health care oversight.

Despite adding more treatment facilities and staff, the court noted that the CDCR was still deficient in providing care for some 32,000 mentally ill prisoners. Against the state’s protestation that it had spent more than $1 billion on new facilities and devoted $400 million a year to treatment for mentally ill prisoners, court-appointed experts reported that the CDCR continues to have major problems – including a suicide rate that worsened in 2012 to 24 per 100,000 population, far exceeding the national state prison average of 16 suicides per 100,000 population. [See: PLN, April 2013, p.22].

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New York DOCCS Settles Statewide PLN Censorship Suit for $155,000

By Alex Friedmann

The New York state Department of Corrections and Community Supervision (NYDOCCS) has settled a federal lawsuit filed by Prison Legal News that challenged the censorship of PLN’s monthly publication, books and correspondence at New York prisons statewide.

PLN claimed in its complaint, filed in the U.S. District Court for the Southern District of New York on October 11, 2011, that the NYDOCCS had an “unconstitutional policy of prohibiting inmates from receiving any and all books, magazines, letters and postcards distributed by Plaintiff, including letters from Plaintiff’s attorney…,” which “deprives Plaintiff, as well as its subscribers, of important First Amendment rights and serves no neutral, legitimate penological purpose.”

PLN argued that beginning in 2009, the NYDOCCS had placed its publication on a list of “disapproved vendors” because PLN accepts payments for subscription and book orders in the form of postage stamps, and publishes advertisements for alternative prison phone services, both of which are against NYDOCCS policy. PLN editor Paul Wright called these justifications “pretextual.” [See: PLN, Nov. 2011, p.12].

PLN filed suit as a last resort after repeatedly contacting the NYDOCCS and requesting that state prison officials stop their unconstitutional censorship of PLN’s publications and books. Those requests were ignored or denied.

On January 27, 2012, less than four months after PLN’s lawsuit was filed, the NYDOCCS issued a memo to all state prison superintendents. The memo stated that while PLN and other publications accept stamps as payment and include ads for services that violate NYDOCCS policy, “Rather than barring the introduction of these publications altogether or attempting to redact or remove all such objectionable advertisements from each publication, correctional facilities are to include, along with each publication,” a notice warning prisoners that they are subject to disciplinary action if they violate NYDOCCS rules related to postage stamps and phone services.

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The Center for Legal Studies

By Dianne Frazee-Walker

The Center for Legal Studies (CLS), founded by an attorney in 1980, is a 33-year-old nationwide legal education company that provides Live Lecture, Online, DVD, and Text-Only flexible curriculums for inmates or the public. Upon finishing a course students earn a certificate of completion from one of 150+ participating accredited colleges and universities throughout the country. 

From California to New York – Montana to Texas; 51 college and universities that partner with CLS offer the “Text Only” versions, specifically designed for inmates. These correspondence courses enable an incarcerated student to take a variety legal education courses without the use of computers or on-site instructors. Opportunities are available for students to gain exceptional legal training and earn certificates from well named schools from just about anywhere in the country.

Two leading universities have paved the way for text-only education directed towards incarcerated students. Adams State University located in Alamosa, Colorado (ASU), and Ohio University in Athens, Ohio (OU) have taken special interest in marketing the text-only division.  ASU offers CLS’s courses as part of a degree program which if a student qualifies would enable them to utilize Federal Student Aid. Ohio University was the first college to develop “College for the Incarcerated” and exclusively markets CLS courses as well as many other courses that are custom-tailored for inmates.

Christopher Zoukis author of Education Behind Bars and prison education expert says, “I know of the Center for Legal Studies.  They work with Adams State University, a school I’m currently taking a few courses through.  Small world.  I like those guys a lot.  I think that the Center for Legal Studies is one of the best programs out there for incarcerated students.”

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The Ramifications of Peugh

By Tommy Walker

I. Peugh v. United States, (No. 12-62)(S. Ct. June 10, 2013)

Recently, the United States Supreme Court decided Peugh referenced above. At first blush it may not seem to have been a decision which would have significant impact with many defendants. However, upon closer review, the ramifications of Peugh are a lot more subtle, and therefore, Tommy Walker and his assistants have given us a more in-depth review. Peugh may also be the forerunner of the upcoming Alleyne case.

In Peugh, the United States Supreme Court held that sentencing a defendant under a version of the U.S. Sentencing Guidelines that was promulgated after he committed his crime and increased the applicable range of the incarceration violates the Ex Post Facto Clause.

The Supreme Court defined the ex post facto clause as: (1) every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; and (4) every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender (slip opinion at page 7). (citing, Calder v. Bull, 3 Dall 386 (1793)).

At issue in Peugh was Calder’s third category of the ex post facto clause laws that “change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed”. (slip op., at 8). Peugh’s claim was that the ex post facto clause was violated because the 2009 Guidelines call for a greater punishment than annexed to bank fraud in 2000, when his crimes were committed. The Government on the other hand, claimed that because the mere punitive guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto issue. Id.

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Prison Writing & Political Will

 By Andrea Jones

As prisoners in California entered the tenth day of statewide hunger strikes staged in opposition to the long-term solitary confinement policies of the California Department of Corrections and Rehabilitation (CDCR), news broke that administrators were countering activism with reprisal.

Confined for up to twenty-three hours per day in cramped, windowless cells called Security Housing Units (SHUs) at Pelican Bay State Prison, the inmates who initiated the protests—which spread to include 30,000 prisoners across two-thirds of state facilities—did so as a plea to abolish indefinite isolation. Although the enduring psychological harm of solitary confinement is well established—the U.N. has called for the prohibition of the practice in excess of fifteen days—many of California’s prisoners have been stuck in solitary for decades.

Rather than consider the demands presented, CDCR cut off access to broadcast news and confiscated some of the legal papers of fourteen Pelican Bay participants, forcing them into administrative segregation—an even more punitive form of isolation, according to a statement from the prisoners.

“Despite this diabolical act on the part of CDCR intended to break our resolve and hasten our deaths,” the statement read, “we remain strong and united! We are 100% committed to our cause and will end our peaceful action when CDCR signs a legally binding agreement meeting our demands.”

Eminently reasonable, these demands include: adequate food for SHU inmates; educational and rehabilitative programming; one phone call per week; and the elimination of “debriefing,” a policy that poses severe safety risks by making release from solitary contingent upon informing on other inmates. “Hunger strikes are the last option for prisoners,” explains Shane Bauer, the journalist whose traumatic confinement in Iran in 2009 compelled him to investigate conditions at Pelican Bay last year. With administrative and legal attempts proving futile, prisoners are risking their health as a final resort.

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The New Gulag: The Modern Expansion of 24 Hour Lockdown Prisons in America

By Christopher Zoukis

Within two days of his 2009 arrival at the Federal Bureau of Prisons’ “Special Management Unit” at the United States Penitentiary in Lewisburg, PA, William Thrower was beaten and stomped into unconsciousness by his gang member cellmate, with whom he was assigned to share a tiny, ancient cell, 24 hours a day.  After a month in a coma, Thrower now suffers from “severe cognitive impairment,” that, according to a government neurologist requires his participation in basic functioning therapy.  Nonetheless, Thrower was returned to an SMU program.  His lawsuit was later dismissed because his allegations did not constitute an “atypical” hardship for a prisoner.

Thrower’s experience is not unique; the federal district courts are rife with similar lawsuits by prisoners confined in such programs, alleging inhumane conditions, murders, “gladiator” fights arranged by guards, and other atrocities generally attributed to societies less enlightened than ours.  Yet the federal government’s use of “control units” like SMU has expanded exponentially in the last decade, as have the states.  And while many correctional industry experts insist that such programs are necessary, one might ask at what cost to our national ideals of humane punishment and dignity for all members of our society do these programs exist.

It is well known that the United States incarcerates its citizens at a rate far higher than any other Western nation.  More than two million men and women are detained in our prisons and jails at any one time, and we admit more than 1.3 million to such facilities each year.*1   It is perhaps not surprising that government officials and private prison industry corporations have in recent years looked for creative ways to store these men and women in a more manageable and cost-effective manner.

One way to achieve these goals is, of course, to simply lock prisoners in a cell, 24 hours a day.  While the courts have generally mandated that it is unconstitutional to do so, they have allowed prison officials to subject prisoners to such treatment provided they are given an hour or so in an outdoor cage a few times a week.  In 2005, the last year such figures were compiled, over 80,000 men and women were confined in such conditions.*2

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Interview With Christopher Zoukis, Prisoners’ Rights Advocate

By Katherine White

Christopher Zoukis is a prisoners’ rights advocate, and the author of Education Behind Bars: A Win-Win Strategy for Maximum Security (Sunbury Press, 2012).  While incarcerated, Mr. Zoukis spends his time writing books, articles, blog posts, and school papers (he’s pursuing a degree in Business Administration).  He also spends much of his time either in his prison’s law library or out and about consulting with those he assists with legal pleadings.

Prison Law Blog’s Katherine White interviewed him regarding his own prison experiences and the challenges he has faced as an impassioned prisoners’ rights activist and prison writer.

Katherine White: Why did you decide to use your time in prison to fight for the rights of other prisoners?  That is, wouldn’t it be easier if you just did your time, as they say, and concentrated on your writing?

Christopher Zoukis: When I came to prison, it was a great shock to me to see how few prisoners were able to speak for themselves or assert their rights.  To add to this, I was stunned at how often prison administrators seemed to just do as they pleased, even if their actions violated the law, or were clearly unconstitutional.  I was despondent about such actions and felt that it would be up to me to protect myself.  Legal study was the path I chose.  And I used this legal study, prompted by witnessing the existing abuses, to motivate myself to help my fellow prisoners.

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AG’s Memorandum on Mandatory Minimums and Recidivist Enhancements

By Christopher Zoukis

There has been a lot of talk recently about the Department of Justice either declining to charge or waiving more severe charges for those involved in certain nonviolent, low-level drug cases.  The rumors inside federal prison have run the gambit from the new policy being retroactive to it only affecting those with gun convictions, both of which are categorically incorrect.  In matters of law and policy, it is always best to learn the truth from official U.S. Government documents or directly from judicial opinions, not hearsay, summaries, or third party opinions.

As a service to the Prison Law Blog readers, enclosed below is the memorandum from U.S. Attorney General Eric Holder concerning the new policy revisions which his office has put into play.  We implore you to review this memorandum as it clarifies the DOJ’s position on this matter and shows how federal prosecutors will be applying the new guidelines to applicable offenders.  By reading the memorandum, you can understand exactly who it applies to and how federal prosecutors can use it in certain cases.

The memorandum reads as follows:

MEMORANDUM TO THE UNITED STATES ATTORNEYS AND ASSISTANT ATTORNEY GENERAL FOR THE CRIMINAL DIVISION

FROM: THE ATTORNEY GENERAL

SUBJECT: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases

In Alleyne v. United States, 133 S.Ct. 2151 (2013), the Supreme Court held that any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt. This means that for a defendant to be subject to a mandatory minimum sentence, prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty.

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The Differences Between Apprendi and Allenye by Tommy Walker, USP Lewisburg and His Law Students

Approved and Edited by Craig M. Coscarelli

Preliminary Statement:

Since the June 17, 2013 release of Alleyne v. United States, 133 S. Ct. 2151 (2013) by the Supreme Court of the United States, there has been much discussion about the differences between

Apprendi v. New Jersey, 530 U. S. 466 (2000) and Alleyne. Of course, the main discussion centers around retroactivity. I believe that the excellent work and research done by Tommy Walker and his law students below dispels any doubt that Alleyne is retroactive.

Introduction:

The Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with Due Process, requires that each element of a crime be proved to the jury beyond a reasonable doubt. In Re Winship, 397 U.S. 358 (1970). The substance and scope of this right depend upon the proper designation of the facts that are elements of the crime.

In Alleyne , the Supreme Court dropped a big bombshell on state and federal sentencing regimes. By holding, that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime. This is an important decision that has been a long time coming.

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