Florida Law Enforcement Organization Sues to Block Privatization of 30 Prisons

Here’s an interesting lawsuit: The Florida Police Benevolent Association has filed suit to enjoin Gov. Rick Scott’s plan to privatize 30 prisons across South Florida. Those prisons currently hold about 20% of the state prison population. The Florida Legislature mandated the switch in the 2011-12 state budget as a cost-cutting measure (it’s actually not clear that private prisons cost less, BTW), with the Corrections Department under orders to have vendors in place by the first of January 2012. The Miami Herald reports:

The PBA suit, filed in Leon County Circuit Court in Tallahassee, says the state has not conducted a cost study to determine whether privatization would save money.

It also says that the state failed to comply with a law requiring an agency to conduct a “business case” to justify any outsourcing in excess of $10 million.

Separate from its lawsuit, the correctional officers’ union has requested extensive public records from the prison system, including a list of every factor the state uses to determine the cost of running a prison.

Some context: First, according to a recent analysis by finance blogger Mike Konczal at Rortybomb, Florida is not currently a high user of private prisons relative to other states, with under 10% of its prisoners in private facilities. But Konczal hypothesizes that “once a state flips to using private contractors, they use them a lot” — so the Florida PBA is probably not wrong to worry that flipping 30 prisons could be the harbinger of more privatization to come. 

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New York State Senators File Lawsuit to Bring Back Prison-based Gerrymandering

Our friends at the Prison Policy Initiative worked tirelessly last year for a legislative end to prison-based gerrymandering in New York State. To put the problem in perspective, upstate New York has seven State Senate districts that would not meet minimum population requirements without claiming incarcerated people as residents. The good news is the legislation passed, but now a group of (surprise!) upstate state senators has filed suit seeking to block implementation.

Lead plaintiff, State Senator Betty Little, has 13 prisons in her district, housing over 10,000 prisoners, so no wonder she’s nervous at the prospect of redistricting without that artificial boost to her numbers. But as Peter Wagner of the Prison Policy Initiative points out, inflating State Senator Little’s district only dilutes the votes of everyone else in New York State:

“Senator Betty Little filed suit this week to revive a legal fiction, claiming that individuals imprisoned in her district are members of the local community and should be counted there when it comes to drawing state and local legislative districts. Senator Little’s attempt to inflate the population of her district with more than 10,000 incarcerated, non-voting residents from other parts of the state will dilute the votes cast in all other districts.”

Ramon Velasquez puts the issue in personal perspective at the Huffington Post:

What if I told you your vote counts more depending on where you live in New York? Should a resident of Wyoming or Cayuga County gets more say in who is elected than a resident of Brooklyn or the Bronx?

At 51, I voted for the first time in my life last fall after I was discharged from parole. Now that I’ve done my time, I expect my vote, or my neighbor’s, to count the same as any other vote cast in this state. A person living in a town with a prison, however, has more voting power than me or most other New Yorkers because of a practice called “prison-based gerrymandering.”

Of course, prison-based gerrymandering does dilute the vote of residents of Brooklyn and the Bronx, but it also dilutes the vote of Manhattan and Staten Island and Long Island, of parts of upstate New York that aren’t near a prison — basically, it dilutes the vote of anyone who doesn’t live in a district with a prison. The Prison Policy Initiative also has a round-up of news coverage and a copy of the senators’ complaint (PDF).

 

Michigan Supreme Court: Incarceration Is Not a Sufficient Reason to Terminate Parental Rights

Father's Day 2010 at the California Men's Colony (courtesy CDCR)

“Incarceration alone is not a sufficient reason for termination of parental rights,” the Michigan Supreme Court has held (PDF link), in overturning a lower court ruling that stripped a 29-year-old father’s parental rights while he was in prison. Free Press columnist Jeff Gerritt praises the decision:

The ruling by two liberal justices (Marilyn Kelly and Michael Cavanagh) and two conservative justices (Robert Young Jr. and Maura Corrigan) does more than uphold the rights of the incarcerated. It’s good news for anyone espousing so-called family values — or, for that matter, anyone who believes the courts and state bureaucracy should consider real-world problems when interpreting the law.

Like many family law cases, this one implicates a mixture of messy facts and strong moral judgments on all sides, so I am hesitant to repeat the facts posited by either the majority or dissenting opinion as gospel; you can click on the link above to read for yourself. For legal purposes, the key holding seems to be that lower courts can’t apply a presumption of parental unfitness based on a parent’s present incarceration; they must at least consider whether the parent might be fit to care for the children after his/her release.

City of Stockton Settles with California in Lawsuit Over Prison Hospital Construction

When California announced plans to build a 1,722-bed prison hospital near the city of Stockton, the city was not too happy. Along with San Joaquin County and the Stockton Chamber of Commerce, the city sued the state for a variety of concessions to ease the burden of the new prison on municipal services. After several rounds of settlement talks (the plaintiffs were represented by Steve Herum, a Stockton land-use attorney), the state has agreed to provide:

• up to $1 million in sales taxes on construction equipment and supplies
• a $4 million “Medical Guarded Unit” for the San Joaquin General Hospital
• a citizens advisory committee to liaise with state prison officials
• reimbursement for coroner’s fees, traffic impact, and water and sewage usage
• local hiring (although talk of establishing partnerships with local community colleges broke down)

Local columnist Michael Fitzgerald of the Stockton Record praises the city’s chutzpah:

If there’s a bully in California government, it is the Department of Corrections and Rehabilitation. The CDCR likes to pick on Stockton by dumping prison facilities here. … That’s how the CDCR operates. CDCR is the unjust agent of a dysfunctional state that runs roughshod over poorer and politically weak communities.

The unfairness was not limited to opening new facilities here, and none in Southern California, though that region produces the most prisoners.

… “It was my impression in dealing with these corrections folks … they really see Stockton as Arkansas,” said Herum. “I think they’re going to treat us with a lot more respect and treat us more like a partner going into the future.”

I wonder if this story indicates a broader decline in local support for America’s carceral state. During the prison boom of the 1980s and ’90s, rural areas were often convinced that prisons would bring jobs and economic development, although subsequent studies have suggested otherwise. The documentary Prison Town, USA explores this cycle of excitement followed by disillusionment through the case study of Susanville, a small town way up in California’s northernmost corner.

Now, Stockton is not Susanville, of course; it’s a relatively large city with some good things going for it: a university, an accessible location between San Francisco and Sacramento, some promising renewable energy developments. But you wouldn’t describe Stockton as thriving: it was extremely hard hit in the recent housing bubble burst, its crime rates have been persistently high, its levels of literacy and educational attainment are low. Nonetheless, Stockton’s city fathers have thoroughly rejected any notion that the new state prison facility would be a good thing for business. Here’s Mike Locke of the San Joaquin Partnership, whose job is to woo companies to the area: “You have to appreciate that concertina wire is not inviting (to) investors.”

Web Resource: Civil Rights Litigation Clearinghouse

The Civil Rights Litigation Clearinghouse is an invaluable online resource from the University of Michigan Law School. With a growing database of almost 5,000 cases, the clearinghouse provides case summaries, lists of judges/lawyers involved, links to pleadings and other documents, and more for impact litigation lawsuits (i.e., lawsuits seeking future policy changes, not money damages) across a range of substantive law areas — among them prison conditions, juvenile institutions, immigration, policing, and indigent defense. The website already includes almost 600 entries for prison conditions cases alone. For instance, here’s the entry on Plata v. Schwarzenegger, one of California’s ongoing class action suits seeking to improve prison health care.

Sac Bee Investigates “Behavior Modification Units” in California Prisons

The Sacramento Bee has published a two-part investigative series on so-called “behavior modification units” in California prisons (Part One, Part Two). The series is well worth reading in full for a glimpse into daily life in the CDCR, and the bottom line seems to be that these specialized units, “marked by extreme isolation and deprivation,” may be counterproductive at best, a gross human rights violation at worst. About 1,500 inmates have passed through the units located across six different prisons. Since this blog has a legal focus, I thought I’d highlight the string of litigation and administrative grievances that these units have generated:

Many of [the inmates’] claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear.

Behavior units at other prisons were marked by extreme isolation and deprivation – long periods in a cell without education, social contact, TV or radio, according to inmate complaints and recent visits by The Bee. An inmate of the Salinas Valley State Prison behavior unit won a lawsuit last year to get regular access to the prison yard after five months without exercise, sunlight or fresh air.

State prison officials have known about many of these claims since at least July 2008, when Department of Corrections and Rehabilitation social scientists sent to High Desert to assess the program reported allegations of abuse – including denial of medical care, racial slurs, gratuitous violence and destruction of protest appeals.

The Bee’s investigation also revealed a broad effort by corrections officials to hide the concerns of prisoners and of the department’s own experts. Their final report, released only after The Bee requested it in April, downplayed the abuses.

Vermont Supreme Court: Prisoners Transferred Out-of-State Have Same Rights as In-State Prisoners

The Vermont Supreme Court recently ruled in a case that, although legally binding only for Vermont prisoners, may be of broader interest to the many states that transfer inmates to out-of-state facilities because their own prisons are overcrowded. Out-of-state prisons are typically run by private companies that may impose different rules, and may provide prisoners with fewer rights and privileges, than state-run facilities. So, the question that logically arises is whether it’s permissible to treat prisoners differently based solely upon the happenstance of where they’re housed, or whether out-of-state and in-state prisoners must be treated equally. This week’s Vermont Supreme Court ruling suggests the latter, in a ruling with two parts. First, the court holds that out-of-state prisoners are entitled to all the same statutory rights and privileges that in-state prisoners have under Vermont law. Second and potentially farther reaching, even for rights and privileges provided for by prison policy rather than statute, the court suggests that out-of-state prisoners may have a viable equal protection challenge under the Fourteenth Amendment.

Here are the facts: Vermont’s prisons have two rules in place to facilitate inmate communication with family and friends outside. First, when making phone calls, inmates have a statutory right to choose between making collect calls or paying with debit calling cards. Second, although this rule is not statutory, prison policy is to provide all inmates with up to seven free postage stamps per week. It so happens that, through a contract with the private Corrections Corporation of America, Vermont houses about 600 prisoners in a private Kentucky facility where inmates can only make collect calls (which are more expensive and which don’t always work with cell phones) and receive no free stamps. But, the Vermont Supreme Court recently held, all Vermont prisoners, regardless of where they’re incarcerated, have to be afforded their state statutory right to calling cards. As for the postage stamps, the court remanded back to the trial court to flesh out the record on whether there’s a constitutional equal protection violation. That component of the ruling may be of broader interest since it’s arguably a closer question, and rests not on Vermont law but on the Equal Protection Clause of the Fourteenth Amendment:

A Tale of Two Lawsuits

The other day my Google Reader brought me news of two new lawsuits filed this week against, respectively, the federal and California state prison systems. In the first, the Center for Constitutional Rights — which has coordinated much of the legal work on behalf of Guantanamo detainees — is challenging the federal Bureau of Prisons policy of moving certain inmates into isolated cells known as “Communications Management Units,” without any advance notice or meaningful review of their transfer. These inmates face very stringent limits on their communications with their family and with the outside world, and CCR alleges that the policy is an effort to create “a stateside Guantanamo” for prisoners with unpopular political beliefs. (Two-thirds of the inmates in these special prison units are Muslim.) In the second, Crime Victims United — the California organization well-known for receiving much of its funding from the state prison guards’ union, and for its staunch support of “tough-on-crime” legislation — is suing to block enforcement of a new law that would have the effect of releasing a relatively small number of the lowest-risk offenders. Says a San Diego citizen whose son was murdered, “The victims are being ignored.”

Though filed in the same week, these two lawsuits seem on the surface to be as different as could be.

Connecticut Judge OK’s Force-Feeding of Prisoner on Hunger Strike

If you’re on a hunger strike and someone force-feeds you, that sort of ends your strike, interfering with your First Amendment right to protest, but also with your Fifth/Fourteenth Amendment due process right to refuse medical treatment, as well as various state privacy rights you may have. In some cases, force-feeding could violate the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment. By analogy, across the Atlantic, the European Court of Human Rights has in some cases found force-feeding to violate Europe’s provision against “inhuman or degrading treatment or punishment” (see PDF p. 7).

On the other hand, in the United States, prisons have an Eighth Amendment obligation to keep prisoners alive — or at least, in legalese, not to demonstrate deliberate indifference to a substantial risk of serious harm — and may also have various obligations under state law. So, if you’re on a hunger strike and you’re in prison, can the prison staff force-feed you? A Connecticut state judge recently ruled that it’s OK for prison staff to continue force-feeding a prisoner who’s been on a hunger strike for over two years (see also this commentary, criticizing the decision, from the UConn student newspaper, and this AP report). In an amicus brief in support of the prisoner in this case, professors from the Yale, Northeastern, and Western New England law schools had argued that force-feeding could violate not only the Constitution but also international law, and noted that the World Medical Association has condemned force-feeding.

As the WMA’s Malta declaration begins, hunger strikes “are often a form of protest by people who lack other ways of making their demands known,” including prisoners wishing to call attention to an individual or collective grievance. There’s been some confusion lately about whether or not there’s a hunger strike on in California’s prisons to protest the Three Strikes Law. Terry Nichols, the (other) Oklahoma City bomber, announced a hunger strike back in February to demand more healthful food. Last year the “shoe bomber” Richard Reid was reportedly on a hunger strike in 2009. In Texas, immigration detainees have been hunger striking since January, protesting conditions at the Port Isabel Detention Center. Although the legal issues are technically distinct, force-feeding was also an issue for Guantanamo Bay detainees.

Two Days into Her 30-Day Sentence for Misdemeanor Negligence, Vermont Woman Dead Because of Prison Staff Negligence

After Ashley Ellis of Rutland, Vt. got into a car accident that left a motorcyclist partly paralyzed, she developed anorexia and bulimia, “going from a healthy, 120-pound 21-year-old to a depressed, 86-pound 23-year-old.” Ellis was convicted of misdemeanor criminal negligence for her role in the accident and sentenced to 30 days in prison (along with community service and the indefinite loss of her driver’s license). Within two days of arriving at Vermont’s Swanton prison to serve her term, Ellis was dead of complications from low potassium. The state medical examiner listed “denial of access to medication” as the cause of death. Although Ellis had mentioned to several prison staffers that she needed prescription potassium pills, the prison was out, and no one ever made it to the pharmacy to pick up a new supply. At the time, Vermont’s prisons contracted with Prison Health Services to provide medical care; in part because of Ellis’s death, Vermont did not renew PHS’s contract when it expired and now contracts with Correct Care Solutions. Although the Vermont police tried to investigate the death, they were stonewalled by Prison Health Services employees, who were told by the company’s lawyers to keep quiet. The state will not file any criminal charges against PHS employees, but Ellis’s parents are considering a civil lawsuit.

I’d recommend reading the Times Argus article on this tragic case, which is full of inexplicable details that illuminate the absurdity that America’s prison system has become. Why would a prison nurse in Vermont have to e-mail a “regional supervisor” in California for approval to order medication for an inmate? Why did two nurses scheduled for work that day fail to report, leaving one nurse to do the work of three? Why would a prison’s method of communication regarding inmate medical needs be voice mail, when the night-shift nurse “didn’t usually check her messages” until the next day? Why would an inmate’s receiving needed medication be dependent upon whether or not the on-duty nurse decided to extend the “courtesy” of stopping by the local Rite Aid on the way to work? After Ellis died, a filled-out casework request form was found under her bed, reading, “On Tuesday I’d like to meet my case worker to discuss my meds and get everything straightened out.”