ACLU, Prison Law Office File Suit against the Arizona Prison System

Here’s some interesting news on the prison litigation front: The ACLU of Arizona has joined forces with the Berkeley, Calif.-based Prison Law Office — they’re the ones who’ve been litigating California prison conditions cases for years, and brought us last year’s Plata decision at SCOTUS. The two groups have filed a federal lawsuit charging that the Arizona prison system’s use of solitary confinement amounts to cruel and unusual punishment, in violation of the Eighth Amendment:

In one particularly tragic case, a prisoner at the state prison complex in Tucson died last year of untreated lung cancer that spread to his liver, lymph nodes and other major organs before prison officials even bothered to send him to a hospital. The prisoner, Ferdinand Dix, filed repeated health needs requests and presented numerous symptoms associated with lung cancer. His liver was infested with tumors and swelled to four times its normal size, pressing on other internal organs and impeding his ability to eat. Prison medical staff responded by telling him to drink energy shakes. He died in February 2011, days after finally being sent to a hospital but only after his abdomen was distended to the size of that of a full-term pregnant woman. A photograph of Dix shortly before his death appears in the lawsuit.

Jackie Thomas, one of the lawsuit’s named plaintiffs who is housed in solitary confinement at the state prison complex in Eyman, has suffered significant deterioration in his physical and mental health as a result of being held in isolation, where he has become suicidal and repeatedly harmed himself in other ways. Prison staff have failed to treat his mental illness, improperly starting and stopping psychotropic medications and repeatedly using ineffective medications that carry severe side effects. Last November, Thomas overdosed on medication but did not receive any medical care.

Given the unique circumstances under which Plata rose to the Supreme Court — California’s prison overcrowding had been endemic for years, and had reached the level of a state of emergency, as declared by Governor Schwarzenegger — I wasn’t sure that the Plata ruling would have much practical effect beyond the Golden State. So it’ll be interesting to watch as the Prison Law Office expands its work to Arizona. As Plata itself demonstrates, the staff there have a track record of translating concerns about prison conditions into legal claims that courts take seriously.

You can read the full complaint here [PDF]. Also involved in the suit is the Arizona Center for Disability Law. And there’s more info at the always excellent Solitary Watch blog.

And for broader historical context on the Arizona prison system, I highly recommend Mona Lynch’s Sunbelt Justice, which I blogged about here.

Georgia Prison Guards Settle Lawsuit over Alleged Beatings for $93,000

Georgia prison guards accused of beating four inmates have agreed to pay $93,000 to settle a federal lawsuit over the allegations. The Chattanooga Times Free-Press reports:

“We think this recognizes that there is a problem with excessive force at Hays State Prison,” said Atteeyah Hollie, an attorney for the Southern Center for Human Rights.

The Atlanta-based human rights group filed the civil lawsuit in July in federal court in Rome, Ga., on behalf of four inmates. The inmates claim they were beaten when officers responded to a fight in a nearby prison cell in August 2010.

Georgia Department of Corrections officials said they were reviewing questions from the Times Free Press about the suit, but didn’t have a response by Friday afternoon.

This is the second time the human rights group has sued the maximum security prison in Trion, Ga., alleging excessive force. A suit was settled in 1997 on behalf of 14 men who claimed they were beaten without reason.

More on the settlement here, from the Atlanta-based Southern Center for Human Rights.

Second Circuit Reinstates Lawsuit over Sexual Abuse in New York State Prisons

Since 2003, the Legal Aid Society has been pursuing a class-action suit on behalf of “present and future” female inmates in the New York state prison system, alleging a pattern of “sexual abuse—including forcible rape—of women prisoners by state correctional officers,” facilitated by inadequate staff screening, training, oversight, and grievance procedures. Claiming violations of the Fourth, Eighth, and Fourteenth Amendments, the plaintiffs are asking a federal district court to issue an injunction requiring the New York DOC to implement more effective policies and procedures for preventing sexual abuse.

At the trial court level, the case had been dismissed by district judge Kevin Duffy, in part because some of the plaintiffs are no longer in prison, so their requests for injunctive relief are moot. Now the Second Circuit has reversed that ruling, reinstating the lawsuit as to those plaintiffs and sending it back to the district court for further proceedings to determine if the case can proceed as a class action. (Full opinion PDF here — note, the case has had a very complicated procedural history and this is mainly a procedural ruling, so the opinion may be hard to follow; I’ll translate some of the legalese after the jump, if you’re curious).

The AP reports on the stance of the New York Department of Corrections:

In April, Corrections Commissioner Brian Fischer testified the department has adopted a series of directives and orientation materials for prisoners and notices to staff and inmates emphasizing zero tolerance sexual abuse. He noted the department’s inspector general has one of the few prison sex crimes units in the nation investigating allegations of misconduct by staff, as well as abuse by inmates on one another.

“The reality, however, is that while we do not willingly tolerate sexual abuse of our offenders, we may not be able to ever fully eradicate the occurrence,” he said. “Our approach is to take proactive preventive measures, immediately respond to all allegations and seek criminal penalties where appropriate believing that such efforts have a deterrent effect within the system.”

Seventh Circuit: Wisconsin’s “Inmate Sex Change Prevention Act” Violates the Eighth Amendment

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. — Fields v. Smith, 7th Cir., Aug. 5, 2011

The Seventh Circuit recently struck down a 2005 Wisconsin law, the “Inmate Sex Change Prevention Act,” that barred prison doctors from prescribing hormone treatment or sex reassignment surgery for transgender prisoners. The Seventh Circuit panel of Gottschall (a district judge sitting by designation), Rovner, and Wood held that the statute violates the Eighth Amendment ban on cruel and unusual punishment, affirming a ruling by Wisconsin federal district judge Charles Clevert. (While Clevert’s ruling also found a Fourteenth Amendment Equal Protection Clause violation, the Seventh Circuit did not reach that issue, striking the law solely on Eighth Amendment grounds.)

Writing for the panel, Judge Gottschall (PDF here) summarizes the expert testimony offered at trial about the “feelings of dysphoria” caused by Gender Identity Disorder (GID): 

Do Prisoners Have a Right to Hunger Strike?

With the California prison hunger strike continuing into its second week and now involving thousands of inmates statewide, I thought I’d reprise a post from 2010 about the legal implications of hunger striking. Disclaimer: I haven’t updated my research since then, but am simply re-posting the information in case it’s of interest. Links may be broken or out-of-date.

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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.

A Life Sentence for 1.2 Grams of Crack?

In his book Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, Joe Domanick tells the story of Tommy Lee Fryman:

In 1998, Fryman was arrested in San Jose for being under the influence of cocaine. Tommy Lee was strip-searched when the cops found 1.2 grams of crack cocaine “hidden between his buttocks.” He pleaded guilty to possession of cocaine base, and because of nine prior felony convictions “alleged as strikes,” was given a three strikes sentence of twenty-five-to-life.

Here’s the kicker: If Tommy Lee Fryman had been arrested just a few years later, he would not have served a day in prison. In November 2000 California voters passed Prop. 36, which mandates treatment, not hard time, for simple-possession drug charges. At that time, California was incarcerating 36,000 men and women a year for simple possession — the highest number in the nation both in absolute and per capita terms. Of that number, about 580 people, like Fryman, had been sentenced to 25-to-life sentences for simple drug possession under the 1994 Three Strikes Law. (The close proximity in time of Three Strikes and Prop. 36 is, itself, a fairly good metric of the incoherence of California criminal justice policy.)

Fryman’s federal habeas case was argued at the Ninth Circuit this week by two students from Stanford Law School’s Three Strikes Project. Fryman’s argument is, first, that the sentence is cruel and unusual under the Eighth Amendment, and second, that the sentence violates the Equal Protection Clause, given that voters approved Prop. 36 while Fryman’s state appeals were still pending (and thus, i.e., that Fryman is being treated differently before the law than similarly situated offenders). You can listen to the oral argument at this link (the case name is Fryman v. Duncan).

Although I don’t normally cover sentencing law, this case and others like it help to explain today’s prison conditions. There is a generation or more of Californians — those who were of crime-committing-age between 1980 and 2000 — who racked up criminal records and prison stints on the basis of draconian drug sentencing practices that California voters have since rejected. A lot of those men and women are still in the system or still being hurt by the system, whether because prison ruined their life, or because they got into further trouble once labeled a criminal, or because they got out of prison and finding few resources to help them went back to using drugs, or whatever reason. Or because like Fryman, they are literally still in prison because they were caught up both in the drug war and the Three Strikes Law. And the same story could be told about New York and the Rockefeller drug laws, and many other states, and certainly about the federal system. Sentencing reform for the future is an important first step, but the roots of mass incarceration can’t be pulled out so neatly — ultimately some form of retrospective justice will also be needed, I think. Imagine what additional challenges your life might have included if you’d been sent to prison 10 or 20 years ago, and now consider that for millions of Americans, that happened.

Fifth Circuit Upholds Jury Verdict for Man Who Contracted MRSA and Lost an Eye in Dallas County Jail

Mark Duvall was only in jail for 15 days, but that was long enough to contract the staph infection that would leave him blind in one eye. From the Fifth Circuit’s opinion (PDF) upholding a jury verdict in his favor:

The jury heard evidence that the Jail experienced around 200 infections per month. Indeed, record evidence demonstrates that the infection rate of MRSA in the Jail was close to 20 percent, and that most jails in 2003 would have one or two cases per month, resulting in an infection rate of one or two percent. It would be reasonable to conclude that the infection rate in the Jail was ten to twenty times higher than in comparable jails. The record also establishes that the County’s awareness of the situation preceded Duvall’s confinement, and that there had been serious outbreaks of MRSA in the Jail for at least three years before Duvall’s arrival. (p. 5)

[The jury] heard evidence that the Sheriff and other jail officials had long known of the extensive MRSA problem yet had continued to house inmates in the face of the inadequately controlled staph contamination. Testimony was presented that it was feasible to control the outbreak through tracking, isolation, and improved hygiene practices, but that the County was not willing to take the necessary steps or spend the money to do so. (p. 6)

The jury’s $355,000 verdict can be downloaded here (PDF). As Grits noted in 2008, Dallas County has been slammed with multiple big-number jury verdicts in recent years — and no wonder: here’s a 2006 DOJ investigation (PDF) filled with troubling findings about inadequate medical screening and care in the Dallas County Jail complex. My advice to readers: Don’t get arrested in Dallas!

Dallas County is currently the site of a University of Chicago study on MRSA. Researchers there first got the idea to study jailhouse MRSA outbreaks when they noticed that staph infections were spreading from the Cook County Jail into the community:

Then in the mid-1990s, [Dr. Robert] Daum and other pediatricians at the U of C hospitals noticed a rising tide of MRSA cases in children who had no risk factors—they had not been recently hospitalized and had no chronic conditions. “That had never happened before,” Daum said. “People didn’t believe us.” …

“So we had to ask, ‘Why are we seeing it and they aren’t? What’s the difference between our kids and theirs?’” Daum said. Daum and his colleagues found that about 60 percent of their patients had close relatives or friends who had recently spent time in jail.

Latest in Lawsuit Over Idaho’s “Extraordinarily Violent” Private Prison: CCA Asks Judge to Throw Out Suit on Exhaustion Grounds

In March of this year, the ACLU filed a class action federal lawsuit alleging a pattern of rampant violence in an Idaho prison operated by the Corrections Corporation of America. The complaint (which can be downloaded here) begins:

ICC is an extraordinarily violent prison. It is known in Idaho as “Gladiator School” for a reason. More violence occurs at ICC than at Idaho’s eight other prisons combined, and the unnecessary carnage and suffering that has resulted is shameful and inexcusable. ICC not only condones prisoner violence, the entrenched culture of ICC promotes, facilitates, and encourages it. Indeed, ICC staff cruelly use prisoner violence as a management tool.

It goes on to describe the “symbiotic relationship [that] exists between certain staff and notoriously violent prisoners,” in which “guards persistently send vulnerable prisoners to live near predatory prisoners, and when these predators commit assaults, they receive mild punishment, and often no punishment.”

This week, CCA lawyers asked the judge to throw out the lawsuit on the grounds that the plaintiffs did not first exhaust their administrative remedies as required by the Prison Litigation Reform Act. (The PLRA was passed in 1996, ostensibly to block frivolous prisoner lawsuits. Yet, it has been roundly criticized by prisoners’ rights advocates for mounting insurmountable procedural obstacles to meritorious claims.) Note that earlier this year the ACLU reached a separate settlement with the state of Idaho, which agreed to “aggressively oversee compliance” with any federal court order that results from this litigation. Therefore, CCA is the only remaining defendant.

Regardless of what happens next in this lawsuit, the complaint is well worth reading in full — a disgraceful catalog of fractured ribs, broken noses, knocked-out teeth, wired jaws, and other injuries, all imposed by prisoners upon more vulnerable prisoners with impunity for the perpetrators, and often without even the necessary X-rays and medical care for the victims. The allegations at issue in this case have been shocking even to seasoned prisoners’ rights lawyers:

“In my 39 years of suing prisons and jails, I have never confronted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights violations than this one,” said Stephen Pevar, a senior staff attorney for the ACLU. “The level of unnecessary human suffering is appalling. Prison officials have utterly failed to uphold their constitutional obligation to protect prisoners from being violently harmed and we must seek court intervention.”

Federal Judge: Illinois Supermax Procedures Violate the Fourteenth Amendment

An Illinois federal judge has ruled that the procedures (or lack thereof) for sending prisoners to the Tamms supermax violate the Fourteenth Amendment’s due process guarantee. At Tamms, all prisoners are kept in solitary confinement. They spend 23 hours a day in their cells and, as “recreation,” are allowed one hour to walk around alone in a steel cage. U.S. District Court Judge G. Patrick Murphy ruled this week that before inmates can be sent to Tamms, they must be afforded notice of why and a hearing at which they can challenge their transfer. Culminating ten years of litigation brought by Chicago’s Uptown People’s Law Center, Judge Murphy’s ruling emphasizes that it extends only to procedural issues and not to conditions in the prison, which he describes as “clean, excellently administered, and well staffed.” However, a local newspaper’s investigative report last year found that Tamms is often used as a de facto asylum for mentally ill inmates, and that many have been held in solitary confinement there for over 10 years. Psychiatrists suggest that solitary confinement longer than 90 days produces mental breakdown, and some argue it is tantamount to torture.

H/t: Solitary Watch, where you can find more information about this case.

Stories You May Have Missed

A few notable news stories from the past couple of days:

“With 8th suicide, appeals for change in prison system“–Boston Globe. The article begins:

Suicides in Massachusetts state prisons are occurring at a rate more than four times the national average this year, prompting advocates and inmates’ relatives to call for an urgent response from state officials — and spurring the Patrick administration yesterday to hire a suicide prevention specialist.

With the discovery of an eighth inmate found hanging in his cell at Old Colony Correctional Center in Bridgewater yesterday morning, Massachusetts prisons have reached a suicide rate of about 71 per 100,000 inmates so far this year, more than quadruple the average annual national rate of 16 per 100,000 inmates reported by the US Bureau for Justice Statistics.

“N.J.’s prison population declines, officials credit less crime, prisoner re-entry programs”–Newark Star-Ledger. Highlights:

With 25,263 inmates in the system as of this month, state prisons still hold more people than they were designed for. And 600 additional inmates will be double-bunked this year to save money. But officials say the overall population shrank because crime was cut, drug courts diverted many people from jail, and programs helped inmates prepare for life on the outside.

“It’s a pretty impressive reduction,” said Marc Mauer, executive director of the Sentencing Project, a research and advocacy organization. “We’re not just talking about a tinkering. It comes about through conscious changes in criminal justice policy.”

“Groups sue over banned handbook at Virginia prisons“–Washington Post. Download the complaint PDF here. The basics:

Two civil rights groups have sued the Virginia Department of Corrections for banning a handbook from state prisons that explains the court system, methods for legal research and constitutional rights.

The Center for Constitutional Rights and the National Lawyers Guild filed suit Wednesday morning in the Western District of Virginia, claiming that the state violated the First and Fourteenth Amendments of the U.S. Constitution.

“Congress moves to crack down on prison cellphones“–Salon.