Web (& Not-Just-Web!) Resources: ACLU Mass Incarceration Initiative

Readers of this blog are likely familiar with the ACLU’s National Prison Project, which works to protect the rights of prisoners as well as pretrial and immigration detainees nationwide. Now, the ACLU has embarked upon a related initiative, the Safe Communities, Fair Sentences project, which will advocate against mass incarceration. Bookmark this site for a weekly dose of “overincarceration” news.

At the ACSblog, ACLU attorney Inimai Chettler asks “Just What Is So Wrong with the War on Drugs?”:

So what’s the verdict 40 years later? Have we won the war on drugs? Quite simply, no. From a public safety perspective, the war has been completely ineffective at stemming the supply or use of drugs in this country. From a cost perspective, it’s been horrific – with a whopping $1 trillion price tag thus far and an unimaginably higher toll in lives and families lost to prison. In terms of fairness, it has been a total bust as well. The effect on communities of color has been astonishingly tragic: there are more African-Americans under the control of prison and corrections departments today than were ever enslaved by this country. Even the current head of the Office of National Drug Control Policy, Gil Kerlikowske, and more recently the Global Commission on Drug Policy, have announced that the drug war has been an abject disaster.

According to the federal government, drugs are increasingly widely available and the rates of drug use are actually up by 10 percent since the start of the war on drugs. Drug supply and use have increased despite the2.3 million people languishing in prisons – about 25 percent of whom are locked up for drug violations. If we look at just federal prisons, things are even worse, with nearly half of those in prison locked up for drug crimes.

When we incarcerate drug offenders, they stay locked up for insanely lengthy periods of time – and often forever. We increasingly sentence them to life in prison under three-strikes-and-you’re-outlaws for petty drug crimes. And disappointingly, our Supreme Court has upheld the constitutionality of laws imposing disproportionate mandatory sentences of life without parole for simple possession of drugs.

Deaf Federal Inmate Files Suit against Bureau of Prisons

From the Washington Post:

David Bryant, who is serving a 99-year sentence for rape, says he was punished by staff for ignoring instructions that he couldn’t hear and that he was attacked by other inmates when he tried to activate the closed-captioning function on a communal television.

Bryant, 46, cannot understand spoken conversation and communicates through American Sign Language, according to his lawsuit, which was filed Friday.

But since he began serving his current prison term in 2005, he has not had regular access to an interpreter or other vital aids, he says in his suit. That has made it difficult for Bryant to provide accurate information during medical evaluations or to participate in education or treatment programs.

Bryant’s case is being handled by the D.C. Prisoners’ Project.

Marion Jones’s Case for Criminal Justice Reform

I don’t watch fake news, so I missed this, but apparently Marion Jones talked prison reform in her recent interview with Jon Stewart:

It’s interesting, cause you never know where life is going to take you. Ten years ago, I would have never thought that I’d be an advocate for prison reform… If you don’t equip the people who are in prison with the resources to get an education, so that when they get out they can be successful–they’re gonna wind up right back in prison, or wind up being your neighbor. Or worse, maybe marrying your daughter or your son.

Are Federal Prisons Exposing Inmates and Employees to Hazardous Waste?

FairWarning has this report on an ongoing DOJ investigation:

A government-owned company that runs electronics recycling plants at federal prisons from New Jersey to California is coming under intensified scrutiny for repeatedly exposing prison employees and inmate laborers to excessive levels of lead and other toxic metals.

The Justice Department’s Office of Inspector General is expected within days to release its report on a years-long investigation of the recycling operations — including accusations that prison officials ignored basic workplace safety precautions.

Separately, the U.S. Bureau of Prisons has quietly paid about $1 million to settle a grievance over hazardous duty pay for employees of an Elkton, Ohio, prison with one of the recycling plants. On one occasion, an air test at the eastern Ohio institution found cadmium levels 450 times higher than federal safety limits.

And a union for employees at the federal lockup in the central California community of Atwater also is demanding retroactive hazardous duty pay. Barring a settlement, that case is scheduled for arbitration in December.

On another front, lawyers preparing health claims for employees of the prison at Marianna, Fla., last week sued the Bureau of Prisons, claiming it has illegally withheld records about the recycling operation there, including by blaming a loss of documents on Hurricane Ivan.

GAO to Study Price Gouging for Prison Phone Calls

The ACLU Blog of Rights notes a little-noticed feature of the recently-signed Prison Cell Phone Act:

The bill orders the Government Accountability Office (GAO) to study the rates that federal prisoners must pay to use ordinary prison phones — and to investigate less expensive alternatives.

The GAO should take a hard look at prison phone rates. The fact is that prisoners who want to stay in touch with their children, parents, and spouses are being gouged. With steep charges to initiate a call, and astronomical per-minute rates, it can cost a prisoner over $30 to make a half-hour call to a loved one. Those who qualify for a prison job often make less than 25 cents per hour — so paying for a brief call to a son or daughter may require more than 100 hours of labor.

Federal Court Allows Transgender Inmate’s Lawsuit over Medical Treatment to Go Forward

Above: Trailer for the 2006 Outcast Films documentary “Cruel and Unusual“

A U.S. district court judge in Massachusetts has denied the government’s motion to dismiss a transgender inmate’s lawsuit alleging she was denied appropriate treatment for Gender Identity Disorder (GID). The case will now proceed towards trial. The plaintiff, Vanessa Adams, is a federal inmate who was diagnosed with GID in 2005, and thereafter made repeated requests to the Bureau of Prisons (BOP) that she be provided with treatment, including psychological treatment and hormone therapy. After her requests were denied, she attempted suicide several times and eventually removed her own genitals. She is being represented by three nonprofit legal organizations — the National Center for Lesbian Rights, Florida Institutional Legal Services, and Gay & Lesbian Advocates and Defenders — along with the national law firm Bingham McCutchen. You can read more about the case and download the plaintiff’s complaint here. The decision is available as a PDF here.

The specific policy Adams challenges is the BOP’s so-called “freeze-frame” policy. Under this policy, the BOP will provide treatment for inmates with GID but only at the level they were receiving prior to their incarceration. That means inmates like Adams, who was only diagnosed after she got to prison, are ineligible for any treatment. (See BOP Program Statement BOP P6031.01(30) — PDF p. 43.) At the motion-to-dismiss stage, the legal issues were mootness and venue. Notably, the judge denied the government’s argument that because the BOP is now providing Adams with hormone therapy, the case is moot: “If this court were to dismiss Plaintiff’s claims at this juncture, based on nothing more than Defendants voluntary cessation of the challenged conduct, without even so much as an assurance from Defendants that the challenged conduct will not recur, it would ‘leave the defendant[s] . . . free to return to [their] old ways'” (PDF p. 10).

Help End Prison Rape, Preserve Due Process: Two Opportunities for Public Comment on Federal Prison Regulations

If you have an extra five minutes today, here are two easy ways for you to share your opinion with the federal government and make your thoughts part of the public record. You can be sure that corrections officials and lobby groups will be seeking to influence the government on both these issues, so it’s important that ordinary citizens make their voices heard as well.

(1) Write to the DOJ urging adoption of the National Prison Rape Elimination Commission Standards

As I’ve noted before, the Department of Justice is currently accepting public comments on whether it should adopt the National Prison Rape Elimination Commission standards. The public comment period ends soon (May 10), so take a few minutes today to submit your comment, if you haven’t already. The proposed standards are based on best practices from prison systems that have made concrete progress in reducing sexual abuse behind bars — so their adoption nationwide could make a real difference in combating what’s become a true human rights crisis in this country. If you feel that you need more information about the scope of the problem, check out the details and links at the Just Detention International website. Then, there are a number of easy ways to submit your comment into the public record:

• Visit www.regulations.gov, search for “Docket No. OAG-131” as your keyword, then click “Submit a Comment.” You’ll be taken to a form where you can enter your comment as text or upload an attachment.
• Sign this petition at Change.org, which will submit a form letter to Eric Holder on your behalf.
• If you prefer snail mail, sample letters and addresses are available from Prison Fellowship.

(2) Write to the Bureau of Prisons about its so-called “Communications Management Units“

As reported here by Politico, the Obama Administration is reviving a set of rules first proposed but later abandoned by the Bush Administration to keep terrorism-related federal prisoners in special, isolated facilities, with very extreme restrictions on their outside communications. These so-called “Communications Management Units” are actually already in use, and in a recently filed lawsuit, prisoners allege they’ve been transferred there with no notice or due process, and without any clear standards as to who qualifies for this treatment. By belatedly publishing a set of rules for the CMUs, the administration may be hoping to forestall that lawsuit’s claim that the use of CMUs was never subject to public notice and comment, as is generally required of new federal regulations. (I blogged about the lawsuit here).

Note that by definition these rules would affect not the so-called “worst of the worst” terrorism-related prisoners (who would likely be sent to the federal supermax in Colorado, if not whatever substitute for Guantanamo the administration comes up with) but rather, as Politico puts it, “prisoners who are perceived by the government or as a result of their crimes to be more likely to try to associate with terrorist networks” (my emphasis: note all the implicit “ifs”). Prisoners currently in the CMUs claim they’ve been singled out for their religious or political beliefs, or in retaliation for filing grievances against the prison system — not for legitimate safety reasons — and that they weren’t given any opportunity to view or challenge the evidence allegedly supporting their isolation.

• If you choose to write to Eric Holder about this general issue, the Center for Constitutional Rights has some suggested language. You can also send a form letter through their website by clicking here.
• If you want to comment specifically on the new federal regulations, you have until June 7. To submit your comment, go to www.regulations.gov and search for “BOP Docket No. 1148-P” as your keyword, then click “Submit a Comment.” Then upload your comment as text or an attachment. The Brennan Center for Justice makes some points about the proposed regs that you may want to incorporate into your comment.

Should the Rule of Lenity Apply When Construing Statutes Governing Prisons?

The Supreme Court heard oral argument earlier this week in Barber v. Thomas (09-5201), a case about how to interpret the good-time credit statute that applies to federal prisoners. As noted in this CNN report, the justices enjoyed some chuckles at oral argument, though of course, for the 195,000 prisoners who may spend more or less time behind bars as a result of the court’s ruling, the issues are presumably no laughing matter. Rather than go through all the issues in the case, which have been covered elsewhere, I thought I’d highlight just one interesting point that came up at oral argument: Should the court apply the Rule of Lenity in construing this statute?

The Rule of Lenity is a common-law canon of construction that requires courts, when interpreting an ambiguous criminal statute, to give the benefit of the doubt to the defendant, rather than the state. The question is whether this rule only applies to formally criminal statutes that define crimes and their possible punishments, or whether it should also apply in interpreting statutes and regulations that govern how prisons calculate time served, which effectively define the actual punishment imposed in any particular case. Here’s Justice Kennedy, questioning Jeffrey Wall of the Solicitor General’s office, who’s arguing on behalf of the Bureau of Prisons (where possible I’ve added links to the cases and briefs mentioned):

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.

A SHU By Any Other Name…

CNN has this report today on Tommy Silverstein, who murdered a federal prison guard in 1983 and has been held in solitary confinement in Colorado’s federal supermax prison ever since — i.e., for 27 years. (So another way of putting it is that Tommy Silverstein has been held in solitary confinement for the exact number of years that your humble blogger has been on this Earth.) With the help of attorneys from the University of Denver’s Civil Rights Clinic, Silverstein is suing the federal government for violating his rights under the Eighth Amendment ban on cruel and unusual punishment.

Anyway, the more chilling part of the article is the Bureau of Prisons‘ somewhat Orwellian insistence on word choice:

The U.S. Bureau of Prisons says “solitary confinement,” a term widely used by prison advocacy groups and attorneys, doesn’t exist in federal prisons. Instead, authorities call the isolated cells where inmates are housed the SHU: special housing units.

U.S. Bureau of Prisons spokesman Edmond Ross estimates that on any given day, 11,150 of the 200,000 federal inmates are kept in special housing units. The reasons for confinement vary from protecting a witness to disciplinary measures.

It seems to me that if the BOP wants to defend the practice, that’s one thing, but it’s somewhat bizarre to deny that a person who is being held in a cell by himself, without contact with other people, is well within the dictionary meaning of “solitary confinement,” regardless of what term the BOP prefers to use for its own internal purposes. By the way, if you missed Atul Gawande’s must-read New Yorker article on the psychological ramifications of solitary confinement, you can download it here.