Widespread Torture and Abuse in Iraqi Prison System

USA Today summarizes the findings of a new Amnesty International report:

About 30,000 detainees are currently in Iraqi custody, although the exact number has not been released, the report stated. Prisoners are often housed in crowded conditions, leading to health problems, and they sometimes go years without seeing the inside of a courtroom, Amnesty said. …

Amnesty International researchers detailed a litany of abuse, including suspending people by their limbs, beating them with cables and pipes, removing toenails with pliers and piercing the body with drills.

Hundreds of people — including some facing the death penalty — have been convicted based on confessions extracted through torture, the report said.

The vast majority of the detainees are Sunnis suspected of helping the insurgency; hundreds are Shiites accused of being part of the Mahdi Army, an outlawed militia run by anti-American cleric Muqtada al-Sadr, who has fought U.S. and Iraqi security forces.

Last month, the U.S. military released thousands of its own prisoners into Iraqi custody (i.e., into these conditions), completing the near-total handover of prison responsibilities to the Iraqi government. However, Reuters reports that U.S. wardens continue to guard about 200 detainees, “including al Qaeda militants and henchmen of ousted dictator Saddam Hussein.”

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Virginia Lawyer on Prison Rape: Prisoners Don’t Need Standards, But Access to the Courts

As the DOJ continues to delay in promulgating national standards for the prevention of prison rape, Virginia civil rights attorney Victor Glasberg recently published this letter to the editor in the Washington Post, offering a different take:

The United States neither lacks nor needs “standards” to prevent rape, in prisons or elsewhere. The Eighth Amendment of the Constitution and a host of laws and regulations outlaw the victimization, sexual and otherwise, of prisoners. The problem is that these laws and regulations are not enforced.

The federal judiciary has largely nullified the means prisoners might use to protect themselves. Given the judge-invented “deliberate indifference” standard and the “qualified immunity” defense as well as the stumbling blocks to valid and important prisoners’ claims created by the Orwellian-named Prison Litigation Reform Act, even horrible abuse in prison is routinely un-actionable except against the perpetrator, who is typically judgment-proof as a practical matter.

The promulgation or non-promulgation of “prison rape standards” is a sadly inconsequential sideshow to the main event: providing victims of abuse with legal recourse sufficiently effective to compel changes in the cultures of the prisons and jails where they live.

Fifth Circuit: Hurricane Trumps a Never-charged Arrestee’s Fourteenth Amendment Claim

Above: James Terry tells his story

The criminal justice system in New Orleans had long been a rickety, unwieldy, cobbled-together thing. Under the weight of Hurricane Katrina, it totally collapsed. As two New Orleans lawyers recalled a year later:

DOJ Releases Survey Results on Conditions in Juvenile Jails

Less than half of youth in state custody (whether residential placement or a juvenile detention center) report having access to a lawyer. That and other statistics are available in the new report, “Conditions of Confinement: Findings from the Survey of Youth in Residential Placement,” published by the DOJ’s Office of Juvenile Justice and Delinquency Prevention. The study is based on a survey of a representative sample of youth in custody, so keep in mind the limitations of self-reported data as you read the report. Here are some other data points that may be of particular interest to readers of this blog:

• Notice of rules: 75% of youth report they received a copy of the rules in their facility, 90% feel the rules are fair, and 75% feel they apply equally to all residents.
• Grievance process: 19% say they don’t know how to file a complaint, and 20% say they are concerned about retribution if they do.
• Fairness of punishment: Half of youth report that staff impose punishment without cause, over one-third think that staff use unnecessary force, and less than one-third say punishments are fair.
• Solitary confinement: Almost one-fourth of youth report being placed in solitary confinement as punishment. Over one-third report being isolated in some way (either sent to their room with no contact with other residents, or placed in a separate lock-up). Of those who were isolated, over half say their isolation lasted longer than 24 hours.
• Physical restraint: Over one-fourth of youth report that staff have used some form of restraint on them, whether handcuffs, wristlets, a security belt, chains, or a restraint chair. Just 4% report being placed in a restraint chair and 7% report being pepper sprayed. These last-resort restraints may have effects beyond the individuals on whom they’re used: 30% report living in a unit where one or more residents was pepper sprayed, and 29% report living in a unit where one or more residents was placed in a restraint chair.

A Day in the Life of a Prison Librarian

Thanks to the San Jose State University masters program in library and information science, here’s a video webcast with Patrick Moloney, Senior Librarian for the California Men’s Colony in San Luis Obispo, on the typical work day, rewards of the job, hiring process, pay and benefits for California’s prison librarians. San Jose State has the nation’s largest library science program, and has partnered with the California Department of Corrections and Rehabilitation to help with recruiting correctional librarians. Moloney notes that although prison libraries’ primary mandate is to provide legal resources, they also provide help with literacy, reentry resources, and general reading material. Although Moloney’s talk is aimed at library science students assessing their career options, it provides glimpses into prison life that may be of interest to readers of this blog.

“Louisiana Sues Its Own Death Row Prisoners”

Strange as it may sound — after all, when it comes to prison litigation, inmates are usually the ones suing the state — that’s the headline of this Solitary Watch report. Triggered by a death row prisoner’s earlier lawsuit challenging Louisiana’s execution procedures under state law, the state’s countersuit is a preemptive move to try to keep any more death row inmates from doing the same:

The Louisiana Department of Public Safety and Corrections last Friday sued every inmate on death row, in an effort to block any one of them from challenging the state’s lethal injection procedures. Each of the 84 prisoners in the “death house” at Angola State Penitentiary was personally served papers in the suit, said Nick Trenticosta, who has represented numerous clients on Angola’s death row.

Trenticosta, who is also director of the non-profit Center for Equal Justice in New Orleans, knows of no other instance in which a state sued its death row inmates en masse over legal questions relating to their execution. “I’ve been hanging around death penalty cases for 25 years,” Trenticosta said in a phone interview this morning, “and I have never seen anything like this.”

This case will probably make headlines because of ongoing litigation around the country regarding lethal injection procedures, but I wonder if it might have ramifications beyond the death penalty context: Will states start using preemptive countersuits to keep inmates from challenging their conditions of confinement, too? Is there any precedent for this, or has Louisiana stumbled upon a totally novel litigation technique? As always, readers who know more are invited to leave comments.

In Today’s Elite Supreme Court Bar, Is There a Place for Jailhouse Lawyers?

I was encouraged to read New York Times legal correspondent Adam Liptak’s latest Sidebar column: “A Mediocre Criminal, but an Unmatched Jailhouse Lawyer.” The column tells the story of 34-year-old Shon Hopwood, who transformed himself into something of a legal expert while doing time in federal prison for a failed bank robbery:

He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Now out of prison, Hopwood is hoping to apply to law school for next year, and fittingly enough, has a job with Cockle Printing, an Omaha-based company that specializes in printing… Supreme Court briefs.

Though the story is heartwarming enough on its own, I thought it was particularly striking that Hopwood achieved this feat during a historical moment when a new, high-powered Supreme Court elite was in the process of consolidating its dominance over the highest levels of appellate advocacy. It’s not just that Hopwood achieved something virtually no other jailhouse lawyer can boast, or even that he achieved something that few lawyers, period, can boast; it’s that he achieved something that increasingly fewer and fewer lawyers can boast. In an extended post after the jump, I’ll provide some historical background on the rise over the past 25 years or so of a new, elite Supreme Court bar, and offer some (sketchy) reflections on the possible implications of this development for jailhouse lawyering. (The key scholarly articles for understanding this development, and my main sources for what follows, have been written by Georgetown professor Richard Lazarus, as well as the elite Supreme Court litigator extraordinaire, and once-and-future Chief Justice, John Roberts. Full citations available at the end of the post.)

The Myth of the Frivolous Prisoner Lawsuit

I recently came across this op-ed in the Milwaukee Journal-Sentinel, making light of prisoner abuse claims. “If there is a goofy lost cause, a prisoner has found it,” goes the headline, and from there, columnist Mike Nichols goes on to ridicule a series of prisoner lawsuits filed in recent years in his home state of Wisconsin. (The op-ed starts out by lampooning the Seventh Circuit’s recent decision upholding a prison ban on the role-playing game Dungeons & Dragons.)

It would be nice to think that Mike Nichols is right — that the real problem with America’s prisons is that prisoners just have too much time on their hands, and too much access to the courts, and so they wile away their days dreaming up frivolous lawsuits — but in reality, prisoners are less litigious than the general public, and more importantly, the Prison Litigation Reform Act of 1995 has had the effect of making it very, very difficult for prisoners who have been raped, assaulted, or otherwise abused behind bars to seek judicial relief. As noted in a recent New York Times op-ed:

Prisons across the country have used [the PLRA] to dismiss suits challenging all kinds of outrageous treatment: strip-searching of female prisoners by male guards; revealing to other inmates that a prisoner was H.I.V.-positive; forcing an inmate to stand naked for 10 hours.

Legislation introduced in December 2009 by Rep. Robert Scott (D-VA) would remove some of the PLRA’s more onerous requirements so that inmates who’ve been raped, abused, or assaulted behind bars — especially those under 18, who have perhaps suffered most under the PLRA — have a better chance of getting their day in court. The bill has the support of a broad coalition of lawyers and organizations (including the American Bar Association and the United Methodist Church).

For Want of a Printer

Recently, the Colorado Court of Appeals evaluated an inmate’s complaint that the El Paso County Criminal Justice Center had violated his constitutional right of access to the courts when it removed the printer from the law library, and never replaced it. You may be wondering how the inmate filed his complaint if he couldn’t print it out, but apparently he handwrote his 22-page petition, complete with attachments. Unfortunately for him, as soon as he picked up his pen, he’d basically undermined his own claim. But more on that in a moment. First, some background:

What sorts of law library resources must a state provide to prisoners? This is an issue that arises frequently in conditions of confinement litigation. It’s not that prisoners have a right to library resources per se, but they do have a due process right — grounded in the Fourteenth Amendment — of access to the courts, whether to challenge the conviction(s) that landed them in prison as unlawful, or to seek redress if the state violates their rights in some way while they’re incarcerated.