State prisoners' right to vote enangered in Maine

Only Maine and Vermont currently permit state prison inmates to vote, and that may now change in Maine.  One legislator has proposed an amendment to Maine’s constitution that would prohibit voting by those state prison inmates who have been “convicted of a crime for which a sentence of imprisonment of more than 10 years may be imposed.”
The first public hearings took place on March 4 and a work session by the Committee for Veterans and Legal Affairs  is scheduled for March 15. Views about the resolution have been published in the Bangor Daily News, the Portland Press Herald, the ACLU of Maine news center, and on Maine's public radio station.

Is Denver Violating the Rights of Deaf Prisoners?

Susan Green of The Colorado Independent recently reported that the U.S. Justice department has opened an investigation into whether Denver jail officials have violated the Americans with Disabilities Act through its failure to provide sign-language interpreters for deaf prisoners.  The investigation was prompted by a lawsuit filed by a profoundly deaf man who claims that he was repeatedly denied an interpreter while in the Denver County Jail, even when undergoing intake, classification and medical interviews. A previous lawsuit, alleging the failure to provide interpreters for three deaf inmates, failure to provide adequate accommodations, and failure to properly train staff to deal with deaf prisoners, resulted in the city agreeing to settle the claim for $695,000.

Standard Minimum Rules for the Treatment of Prisoners

Check out David Fathi's recent blogs, filed from Buenos Aires, where he is attending the Inter-Governmental Expert Meeting on the UN's Standard Minimum Rules for the Treatment of Prisoners. David is the Director of the ACLU National Prison Project.

Children of prisoners

The Irish Penal Reform Trust, "an independent nongovernmental organisation campaigning for the rights of everyone in the penal system, with prison as a last resort," has just released "Picking up the Pieces": The Rights and Needs of Children and Families Affected by Imprisonment.  It describes the effect of imprisonment on those who "must endure their own sentence, despite not having perpetrated any crime."  Some of the problems discussed are: the impact of separation, barriers to visitation and maintaining the parent-child relationship, stigmatization, mental health issues, and difficulties in reunification.  While the report's recommendations are not applicable to all countries, since it was written in the context of the European Convention on Human Rights and the United Nations Convention on the Rights of the Child, the impact of a parent's imprisonment is universal.  Among the more standard suggestions for reform is one that recommends:

The best interests of the child should be a key consideration in proceedings where a parent may be remanded or sentenced to custody.

The report also suggests that impact statements from children of parents about to be sentenced "would be one practical approach which would permit the voice of the child to be heard."

Interesting reading!





  

 

Predatory Phone Pricing

Peter Wagner shares "a big victory ... in the movement to end predatory pricing of prison telephone services."  See the details in Movement Victory: FCC Proposes To Regulate Prison Telephone Industry.  Congratulations to those working on this issue!

New Prison Reform Advocates?

An interesting article in the latest issue of Washington Monthly explains how and why political conservatives have recently taken up the cause of prison reform.  David Dagan and Steven M. Teles point out that "[t]he 2012 Republican platform declares, 'Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.'”  Also, a "rogue’s gallery of conservative crime warriors" now apparently support Newt Gingrich's view that "[t]here is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential.”  Rehabilitation?  Lost human potential?  Hmmm......    

The Election Results Might Have Been Different

From Peter Wagner:
 
In anticipation of the recent election, Prison Policy Initiative and Josh Begley produced an intriguing inforgraphic entitled: "Should the states that bar the most people from the poles be allowed to pick the next president?"  Whether or not disenfranchisement changed the ultimate outcome this time around, it certainly had an impact on the popular vote.  As Peter wrote, "the graphic links the obscenely high rates of lifetime disentranchisement in Virginia and Florida with those states' status as "swing" states ...."

Solitary Confinement in California's Prisons

From Jennifer Allison:

Mother Jones is a publication to which I am proud to subscribe for its commitment to “smart, fearless journalism.”  Its November/December 2012 issue features an important investigative report by Shane Bauer, one of the American hikers who was arrested and imprisoned in Iran in 2009.  In the report, Bauer describes the California Department of Corrections and Rehabilitation (CDCR) program that assigns prisoners who are deemed to be threat to the general prison population to one of five Security Housing Units (SHU) in the state. 

SHUs in California, according to Bauer, “hold nearly 4,000 people in long-term isolation,”  many of whom are subject to an “indeterminate sentence.”  This can mean lengthy stays in solitary confinement, with little real hope of being released.  In the Pelican Bay prison’s SHU, for example, “[m]ore than half of the 1,126 prisoners…have been in isolation for at least five years.”

The length and indeterminate nature of these sentences are not the most appaling aspect of the system Bauer exposes in his report.  What is most shocking is how some of these prisoners wind up in solitary confinement in the first place.  If the state collects three pieces of evidence that can be used to “validate” a prisoner as a member of a gang, this is sufficient to send the prisoner to a SHU, where he can be placed in isolation indefinitely. 

Many of the types of evidence that officials can use to “validate” a prisoner as a gang member are flimsy at best.  These include, among other things, possession of “black literature,” drawings depicting Aztec symbols, or writings in the Nahuatl language of central Mexico.  Sometimes these materials are collected and used against prisoners to whom prison guards and officials have taken a dislike, merely as a way of removing those prisoners from the population.

According to the report, there are only two ways for a prisoner to be released from a SHU.  Either a prisoner can be “declared an ‘inactive’ gang member or associate,” or the prisoner can “debrief,” which means to tell authorities everything he knows about the gang with which he has been associated.  The first option is rarely successful, and the second carries the high risk of the prisoner getting himself killed once he returns to the general population.  The other alternative?  Wait it out in solitary confinement, which, as Bauer points out, can lead to extreme mental and physical illness and distress in those who are subjected to it for any length of time.

I have done my best to not let my personal feelings about Shane Bauer cloud my judgment of his report.  I had little sympathy for him and his two friends at the time of their arrest.  Frankly, they should have known better than to select, of all places, an area near the border of Iran, a country known for its hostility and volatile treatment toward the United States and Americans, as the location for their hiking trip.  My opinion on that matter has not changed that much over time, and I was not comfortable with his repeated references to himself as a “former hostage.”  Not that I doubt that his suffering was real and acute.  But it was his choice to place himself in a position where there was a real risk of being arrested and arbitrarily held by a regime that has been shown to hold international human rights standards in little regard. 

That said, I do believe that the time Bauer spent in solitary confinement in an Iranian prison more than qualifies him to research and write a scathing report on the damaging solitary confinement assignment program in the California prison system.  Frankly, this program sounds to me as if it raises serious constitutional concerns, especially regarding the First and Eighth Amendments.  I admit, however, that I am not familiar enough with the case law in this area to know for sure.  In any event, this is an important report, and those who believe in fair and just treatment for prisoners would be well-served to read it.

Children of the Incarcerated

The Sentencing Project has just released a new report entitled Video Visits for Children Whose Parents Are Incarcerated: In Whose Best Interest?  Written by research analyst Susan D. Phillips, the report looks at those situations in which video visits would be a positive addition to visitation procedures, especially in light of the fact that a majority of parent-prisoners are incarcerated more than 100 miles from their children.  However, she also looks at those instances when such visits would undermine personal relationships and concludes that "Children may benefit from video visitation if it increases opportunities for them to communicate with their parents [b]ut video visitation is not a substitute for in-person contact visits, particularly for infants and young children." Some of the technical and practical aspects of video visitation are also discussed.  Another, more technical report on video visitation from the Vermont Legislative Research Service was released in May 2011.  Prison Video Conferencing, prepared for Vermont Representative Peg Andrews, also discusses the use of this technology in a number of other states.

.

Prisoner Healthcare, Guaranteed by Law: Are the Germans Getting it Right?

From Jennifer Allison:

I am very excited to have been accepted as a guest author for this excellent blog on prisoners’ rights law.  Like Margaret, I am also a law librarian who is deeply interested in prisoners’ rights.  My research specialization is in foreign and international law.  As I read German proficiently, my research focuses primarily on German-speaking countries.

Last summer I started a research project exploring the laws that define prisoner healthcare rights in Germany, with the eventual goal of comparing them to those rights of prisoners in the United States.  I undertook this project mainly to keep my German skills fresh; however, it quickly became an area of great interest to me.  As I was researching this topic, I found myself thinking about prisoner healthcare in a much deeper way, and asking myself a lot of questions.  How much healthcare do prisoners deserve?  Should they receive better care than law-abiding citizens on the outside?  Can prison be a place where people who are completely ignorant of basic healthy practices become educated about them?  Should it be?  What do the quantity and nature of healthcare services we provide to prisoners say about us as a society?

In Germany, healthcare rights for prisoners are guaranteed under the federal government’s Prison Code (Strafvollzugsgesetz – abbreviated in German as StVollzG).  Several German states (Länder) also have their own prison codes guaranteeing similar, if not additional, healthcare rights for prisoners.

The Strafvollzugsgesetz includes general health care provisions that apply to all prisoners, as well as additional provisions that apply expressly to female inmates.  German correctional facilities must to provide physical and emotional healthcare services to prisoners, who are legally obligated to act in accordance with their best health-related interests. (StVollzG § 56)  Periodic medical exams and cancer screenings are required by law, as is medical treatment for illnesses.  (StVollzG § 57)  Medical treatment is defined as the provision of services which are necessary to diagnose and treat illness, prevent an illness’s progression, and relieve suffering.  (StVollzG § 59)  If the prison’s medical facilities cannot provide sufficient treatment for an inmate’s medical needs, then the inmate has the legal right to be treated at a facility outside the prison.  (StVollzG § 65)

Pregnant inmates also have the right to certain medical services under the Strafvollzugsgesetz: pregnancy testing, prenatal care, medication, and care from a doctor and/or a midwife during labor and delivery.  (StVollzG §§ 76-77)  Absent any special circumstances, a female inmate must be transported outside of the prison facility to give birth.  (StVollzG § 76)

This information represents just the start of my research on this topic.  However, I am already impressed by the thorough description of prisoner healthcare access rights in Germany’s federal statutory law.  As my research progresses, I will seek to compare the legal guarantees for prisoner healthcare in Germany to those in the United States.  I have to admit that, based on my initial research, I am not confident that American prisoners enjoy nearly the same rights and access to the healthcare services that are mandated by law for German prisoners.  This is especially true for female inmates, on whom I intend to focus my future research in this area. 

Charges for Prison Phone Calls

News from Peter Wagner, Executive Director, Prison Policy Initiative:

The New York Times cited Prison Policy Initiative's new report, "The Price To Call Home: State-Sanctioned Monopolization in the Prison Phone Industry," in a September 23d editorial, noting that many telephone companies "charge inmates spectacularly high rates that can force their families to choose between keeping in touch with a relative behind bars and, in some cases, putting food on the table." It called on the FCC to regulate the prison telephone industry. The report was also cited in a letter from Energy and Commerce Committee Ranking Member Henry A. Waxman and Rep. Bobby L. Rush to the FCC requesting action on the high costs of phone calls between incarcerated individuals and their families.

A corporate accountability public interest group, Sum Of Us, has also created a page for submitting comments to the FCC, which is currently accepting comments on new regulations that would limit what phone companies could charge inmates' families for calls.

Solitary Confinement: New York's Hidden Problem

Professor Michael B. Mushlin's latest thought-provoking article from The New York Law Journal is available at: http://www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202570044326#[9/4/2012_2:05:28_PM] 

Georgia State University Prison Initiative

An interesting project has been posted on Kickstarter (a funding platform for independent projects): One Nation, Behind Bars: Ed Solutions for Mass Incarceration. A Georgia State film student is looking to raise another $1200 by midnight tomorrow to fund his senior thesis project, described as a

quality student produced, directed, and edited 45-minute to 1-hour documentary film [that] will investigate and discuss the societal advantages and ever-growing need for education programs in the U.S. Prison System ... by focusing on The Georgia State University Prison Initiative, a service-learning project that brings together 15 GSU students ... and 15 volunteer inmates at Philips State Prison just outside of Atlanta in order to study literature, discuss contemporary societal issues, and increase inmate and student literary and social competency.

Just like PBS, there are rewards for contributing so, if you're interested and have a few bucks to share .... 

A Case for Labor Day: McGarry v. Pallito

In an August 10 opinion, the Second Circuit allowed a case based on the 13th Amendment right to be free from involuntary servitude to proceed.  Finbar McGarry, a Vermont resident, was arrested and detained pending trial in the Chittenden Regional Correctional Facility from December 2008 until June 2009. While there, he was housed in House 1 where all inmates, including pretrial detainees, are required to work. Despite his objections, McGarry was assigned to work in the prison laundry. He was told that refusal to work would result in administrative segregation. Defendants justified the requirement on the ground that it furthered a legitimate penealogical interest in “educating offenders about real world responsibilities.” McGarry subsequently filed several unsuccessful grievances complaining about the long hours he had to work and the intolerable conditions, including handling soiled clothing without gloves or the ability to clean his hands. He also alleged that working in the laundry resulted in a painful staph infection.

The appellate court reversed the district court judgment dismissing McGarry's pro se complaint. It found that his complaint had, in fact, presented a plausible 13th Amendment claim. It pointed out that "[t]he Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." Furthermore, the exception for those “duly convicted” did not apply and, although individuals may be detained before they have been convicted and the "liberties and privileges" of pretrial detainees may curtailed, "such conditions may not violate the Constitution." In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court stated that involuntary servitude was “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Indeed, in federal facilities “[a] pretrial inmate may not be required to work in any assignment or area other than housekeeping tasks in the inmates’ own cell and in the community living area, unless the pretrial inmate has signed a waiver of his or her right not to work.” 28 C.F.R. § 545.23(b). The defendants principle argument, that allowing McGarry's claim to proceed “would demean and trivialize the deep significance of the Thirteenth Amendment in the history of this country,” was rejected by the Second Circuit. Rather, it found that McGarry's allegations were supported by "well-pleaded facts" and, therefore, his claim of "'threat of physical restraint or physical injury' within the meaning of Kozminski" was plausible and should be allowed to move forward.
 

Juvenile offenders and life without parole

Available on SSRN: "The Paradox of Graham v. Florida and the Juvenile Justice System" by federal district court law clerk (C.D. Cal.) Aaron Sussman, forthcoming in the Vermont Law Review. The author analyzes a series of Supreme Court decisions on sentences for juveniles that foreclose any possibility of parole, including Graham v. Florida (2010) as well as the recent Miller v. Alabama/Jackson v. Hobbs decision.  He finds "a sharp disjuncture emerges between the Supreme Court’s language and the realities of the criminal justice system, a disjuncture that, in the context of Graham and its progeny, helps preserve the perception of legitimacy but may inhibit even small steps toward improving the conditions and rehabilitative potential of the juvenile justice system."

A Variety of Views on Miller v. Alabama

Children in Prison for Life, New York Times

‘Elite’ Supreme Court Sides with Science and Juveniles, Jonathan Zimmerman, Christian Science Monitor

Justice for Juvenile Criminals, Denver Post

Justices Should Use More Than Their Gut and “Brain Science” to Decide a Case, Richard A. Posner, Slate

Mandatory Life Without the Possibility of Parole for Juveniles Is Unconstitutional, Joy Moses, Center for American Progress

The Roberts Court's Liberal Turn on Juvenile Justice, David S. Tanenhaus, New York Times

Shall We Lock Up a Child and Throw Away the Key?, George F. Will, Washington Post

The Supreme Court Gives (Some) Juvenile Lifers a Second Chance, Liliana Segura, Nation

Supreme Court Ruling on Juveniles is a Partial Victory, James Allen Fox, Boston Globe

Supreme Court Ruling on Life Sentences for Young Criminals, Christian Science Monitor

The U.S. Supreme Court Gives Teenage Murderers a Chance, Marni Soupcoff, National Post (Canada)

Mandatory Life Sentences for Juveniles

Today the Supreme Court handed down a 5-4 decision in the combined cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647). The majority opinion, written by Justice Kagen and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, stated that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'"  See reports from Jurist, The New York Times, the Chicago Tribune, CNN Justice, Human Rights Watch, and the San Francisco Chronicle.

Felony Disenfranchisement

The Sentencing Project recently published Felony Disenfranchisement: An Annotated Bibliography (March 2012).  The document covers the past twenty years of disenfranchisement studies and analysis which, it is noted "examine disenfranchisement from a variety of perspectives – law, social science, history, and journalism [and] provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context."  Links are provided to a number of the articles cited in the online version.  The information for the bibliography was compiled by Benjamin Bronstein, Jerome Pierce, and Achilles Sangster II.  Marc Mauer, Executive Director of The Sentencing Project, was the editor.

“Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences”

On June 19, 2012, Professor Michael B. Mushlin submitted the following testimony in the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights (Chairman: The Honorable Dick Durbin, Ranking Member: The Honorable Lindsey Graham):

Thank you for holding this important hearing and inviting testimony. My name is Michael B. Mushlin. I am a Professor of Law at Pace Law School in White Plains, New York. I am the author of Rights of Prisoners,¹ a four volume treatise, and a member of the American Bar Association’s Task Force on the Legal Status of Prisoners. I am also a co-chair of the American Bar Association, Subcommittee on Implementation of the ABA Resolution on Prison Oversight,² and have served as chair of the Committee on Correction of the New York City Bar Association, the Correctional Association of New York and the Osborne Association, an organization that provides training and support programs for people in jail and prison or who are being diverted from imprisonment. Currently, I am a vice chair of the Correctional Association of New York, a 168 year old organization endowed by New York law with the authority to visit New York State Prisons with the responsibility to report on their condition to the New York state legislature. With colleagues, including Prof. Michele Deitch of the University of Texas, I participated in the organization of two national conferences on prison reform, the first Prison ReformRevisited: The Unfinished Agenda held at Pace Law School and the second, OpeningUp a Closed World: What Constitutes Effective Prison Oversight held at the University of Texas. Both conferences drew together professionals from all segments of the criminal justice and corrections fields to discuss improvement to the operation and oversight of the American prison system. For seven years, I was staff counsel and then the Project Director of the Prisoners’ Rights Project of the Legal Aid Society. I also served as staff counsel with Harlem Assertion of Rights Inc., and was the Associate Director of the Children’s Rights Project of the American Civil Liberties Union. For the 2012/13 academic year, I will be a Visiting Professor of Law at Brooklyn Law School.

I first confronted conditions in solitary confinement units over thirty years ago when I served as trial counsel in a federal civil rights case involving Unit 14, the solitary confinement unit at Clinton prison in upstate New York close to the Canadian border. What I saw there was deeply disturbing. Inmates were locked for 23 hours each day into small windowless cages for months and years on end. No programs or activities were provided to them. Without access to any meaningful activity, they were separated from one another spending almost all of their time entirely by themselves. During that one precious hour per day when a Unit 14 inmate could leave his cell there was only one place to go: a small space directly behind his cell called a “tiger cage.” The tiger cage was a small empty space with a barren floor surrounded on all sides by high concrete walls which were not covered by a roof. An inmate could walk only a few steps in one direction before turning. If he looked up he could glimpse a bit of the sky but nothing else of the outside world.³

Working on that case I witnessed firsthand the awful consequences of subjecting human beings to solitary confinement. I will never forget looking into the eyes of those inmates struggling to maintain a foothold on reality and sanity. Afterwards, when visiting other solitary confinement units, no matter where, I see that same pained, desperate stare. I have seen it so often, and in so many different places, that I have come to recognize it instantly as the gaze of a tortured person.

Aging prisoners

The ACLU has just released a compelling report, At America's Expense: The Mass Incarceration of the Elderly.  Some of the facts:

• In the U.S., 246,600 prisoners are 50 or older;
• The annual cost of incarcerating someone 50 or older is $68,270 a year - twice as much as an average prisoner;
• Even if released elderly prisoners rely on the government for healthcare and other aid, states will still save at least $28,362 a year for each prisoner; and
• Risk of recidivism is minimal as evidenced by a study of N.Y. prisoners which found that the 3-year recidivism rate for those released at ages 50-64 was 7%, and only 4% for those 65 and older.