Will Alabama Be Sued Over Prison Overcrowding?

That’s the dire prediction made in this editorial from the Birmingham News:

Actually, it’s surprising someone hasn’t sued already. We’ve known since May the U.S. Supreme Court’s dim view of California’s overcrowded prisons. The high court ordered California to get rid of 30,000 of the prison system’s 140,000 inmates after inmates’ lawsuits contended the overcrowding violated their rights and kept them from getting needed medical care and other services.

Alabama’s prisons are even more jam-packed than California’s, with our state’s 30,970 inmates exceeding the prisons’ designed capacity by 190 percent, according to state data. California’s prisons were at 175 percent capacity at the time of the Supreme Court ruling. While Alabama’s prison conditions aren’t nearly as bad as California’s, Lauderdale Circuit Court Judge Mike Jones expressed the obvious concern.

“California’s prisons are not as overcrowded as Alabama’s are right now,” Jones told the TimesDaily of Florence in a story published Tuesday in The Birmingham News. “I’m afraid that all it’s going to take is for someone to take some of the California lawsuits and change the names of the defendants to Alabama officials instead of California officials and a group of federal judges is going to order that Alabama reduce a bunch of prisoners to reduce overcrowding.”

The California case referred to is, of course, Brown v. Plata, last year’s Supreme Court decision upholding a federal court order requiring the Golden State to reduce its prison population. At the time, for all its importance as a moral statement, I didn’t think Plata would have much practical effect for other states since no other state has prisons as overcrowded as California’s — no other state, that is, except for Alabama. So, it’s not surprising to me that officials there are worried.

I don’t think Alabama has as much to fear from federal judges as this editorial implies.

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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.”

Web Resources: “Smart on Crime”

I don’t know if the current momentum for criminal justice reform will translate into legislative results, but hey, at least we’re getting some handy websites out of it. First there was Right on Crime, and now there’s Smart on Crime — a website compiling federal policy recommendations related to all facets of criminal justice reform, put together by a coalition of organizations ranging from the ACLU and NACDL to the Heritage Foundation and Cato Institute. The site is organized around issues, with each section including an overview of the problem, a list of reform recommendations, and contact info for leading experts on the subject, so it’s a handy resource even if you’re not the target audience of “the Administration and Congress.”

Anyway, the section on Prison Reform takes up some issues close to this blog’s heart — including the Prison Litigation Reform Act (which I’ve written about here). Here’s a summary of Smart on Crime’s recommendations on prison policy:

• Fully implement the Prison Rape Elimination Act
• Address the problems created by the Prison Litigation Reform Act
• Build transparency and accountability in corrections
• Reduce recidivism and increase effective rehabilitation
• Reduce the use of long-term isolation and design effective alternatives
• Design an evidence-based approach to criminal justice

Radio Roundup, Plus, Mark Your Calendar for California’s Prison Overcrowding Case at SCOTUS

Here’s some recent radio if you’re in the mood for prison-related news:

• Angela Davis talks about the prison abolition movement on Democracy Now
• An interview with a Massachusetts prison librarian on NPR’s Talk of the Nation

And some handy links for those of you following the California prison overcrowding litigation, which has made its way to the U.S. Supreme Court:

• Oral arguments are November 30 — here’s a handy iCal import from SCOTUSblog!
• SCOTUSblog’s ongoing coverage of Plata v. Schwarzenegger, including downloads of all the briefs for the upcoming Supreme Court argument
• Civil Rights Litigation Clearinghouse page for Plata v. Schwarzenegger, including downloads of ALL the filings in the case dating back to its initial filing in 2001
• Three-judge panel’s 2009 Prisoner Release Order, the document that’ll be mainly at issue before SCOTUS — and a document well worth reading anyway, because it’s a veritable textbook in the history of mass incarceration
• Homepage of the Prison Law Office, the nonprofit firm that’s handled the litigation along with the law firm of Rosen, Bien & Galvan. If you scroll down that last link, you’ll note that Rosen, Bien has brought on former solicitor general Paul Clement to tag in for the SCOTUS argument

Forgive the light posting lately — reading up on Plata should keep you occupied for awhile….

Kentucky U.S. Attorney’s Office Sues Prisoner Who Files Four Lawsuits a Day

I usually don’t link to articles lamenting frivolous prisoner litigation, because I don’t consider it a real problem. Of course there are recreational and vexatious litigants out there, but meanwhile the Prison Litigation Reform Act as well as institutional and cultural barriers make it exceedingly difficult for prisoners with legitimate grievances to get into court. On the whole, prisoners are actually less litigious than the general public, though you might expect them to have more claims to make since literally every aspect of their day is controlled by the state and thus brings opportunities for something potentially actionable to go awry.

That said, since Jonathan Lee Riches has his own Wikipedia page, has garnered coverage on the likes of Gawker and Above the Law, and has filed suit against everyone from Perez Hilton to Pervez Musharraf, I thought readers might find this item of interest. From the Telegraph:

The US Attorney’s Office in Kentucky said the persistent lawsuits were “a waste of judicial resources” and eat up court time that could be used for legitimate cases.

Prosecutors have now filed their own lawsuit asking for Riches’ outgoing prison correspondence to be screened by a court employee, and any frivolous legal filings stopped.

Riches has been in prison for nearly a decade after pleading guilty to using email to obtain credit card numbers from people online. He is due to be released in March 2012.

More here from the WSJ Law Blog. As I’ve noted before, the media has an unfortunate though not surprising tendency to focus on extreme cases like this one; meanwhile, the pressing need to reform the Prison Litigation Reform Act has been recognized by a broad coalition.

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.

Sorting the Punditry from the Facts on the South Carolina Prison System’s HIV-Segregation Policy

The DOJ Civil Rights Division has threatened to sue South Carolina over its policy of segregating HIV-positive inmates from the rest of the prison population — an outdated practice in which South Carolina, along with Alabama, is now virtually alone among the states. (Mississippi abolished its HIV-segregation policy a few months ago.) Here’s the response of Jon Ozmint, the director of South Carolina’s prison system:

“This is about left-wing politics controlling the United States Justice Department,” Ozmint said. “This is about whether you want more AIDS or less AIDS.”

Never mind that, as Adam Serwer points out, the ACLU and Human Rights Watch have documented a host of ways in which the segregation of HIV-positive prisoners imposes additional punishment and hardship on top of their judicially-mandated sentence, or that the World Health Organisation has said the practice is “costly, inefficient, and can have negative health consequences for segregated prisoners.” Never mind that 44 of the U.S. prison systems that once segregated HIV-positive inmates, pursuant to policies adopted in the early days of the epidemic, no longer do so. Ozmint’s position has been hailed by at least one pundit as a vanguard policy, “effective and humane,” and Ozmint himself as “refreshing” for describing being incarcerated as “a voluntary activity.” One blog, in a particularly odious formulation, accuses the DOJ of seeking to enshrine “HIV transmission” as a “‘civil right.'” A blogger at the Daily Caller writes, “The Justice Department wants you to get AIDS and die.”

The notion underlying this punditry — that the only way prisons can prevent the transmission of HIV is to cordon off HIV-positive inmates and subject them to additional stigma and isolation — rests on some very ugly assumptions about prisoners, HIV-positive men and women, and the responsibilities of prison guards to protect those in their charge. The notion is also belied by the reality that 48 states and the federal prison system do not segregate HIV-positive inmates.

House Holds Hearings on Prison Sexual Abuse

And if the statistics in the BJS reports are not enough, I ask you to consider one of these children, who have been beaten, assaulted and raped with no recourse or power to stop it, what if that child was the child’s picture you carry in your pocketbook or wallet? … Perhaps then we would not continue to hold hearings, create another commission or issue more reports.

— Grace Bauer, prepared testimony for House Subcommittee on Crime, Terrorism, and Homeland Security, Feb. 23, 2010.

Last month, the Bureau of Justice Statistics issued a troubling report showing that 12% of youth held in juvenile detention facilities report being the victim of sexual abuse, whether by other youth or staff. (New York Times columnist Ross Douthat covered this issue last week; the New York Review of Books published a lengthy discussion of the report here, and Public Criminology crunched the numbers here.) As I’ve blogged about before, the Prison Litigation Reform Act of 1995 exacerbates the problem by making it very hard for juveniles who’ve been abused to seek judicial relief. The Prison Abuse Remedies Act (H.R. 4335), sponsored by Rep. Bobby Scott (D-VA) and supported by the ACLU, would remove the PLRA’s procedural hurdles for juveniles under 18.

Yesterday, the House Subcommittee on Crime, Terrorism, and Homeland Security held hearings on preventing sexual assault in juvenile and adult prisons. The witness list included American University law professor Brenda Smith; Troy Erik Isaac, who was raped while in juvenile custody in California (NPR interviewed him here); Bernard Warner, head of California’s juvenile justice system; Sheriff Gabriel Morgan of Newport News, Va.; and Grace Bauer, whose son was adjudicated delinquent and who works with the Campaign for Youth Justice. After the jump I’ll provide some highlights from their prepared testimony.

Louisiana Prisoner Sentenced to Eight Years of… Barbecuing Chicken, Waxing Floors at the Mayor’s Church, and Renting Moon Bounces for the Police Chief’s Side Business

The Fifth Circuit recently ruled on a case out of Louisiana that is, well, not your typical conditions of confinement lawsuit. In 1996, John D. Williams pled guilty to simple burglary and was sentenced to eight years of hard labor:

His duties largely included maintaining city property and facilities such as City Hall, the railroad museum, ball parks, and even the police station. Williams was a trusty and the only inmate at DeQuincy [City Jail] who performed work of this nature. As a result, Williams also enjoyed certain privileges unavailable in most prisons. [Footnote: Williams was permitted to wear civilian clothing often purchased at town expense. He had his own room in which he was allowed to have private visits with women. He had a telephone, internet access, and access to a washing machine and cable television. It was common for Williams to be driven to the store to purchase personal items like food, cigarettes, and magazines.]

Williams asserts that Buddy Henagan, then the mayor of DeQuincy, and Michael Suchanek, DeQuincy’s Chief of Police, forced Williams to work additional hours beyond the regular work week and sometimes for their private gain. Henagan had him wax the floors of Henagan’s church; work 20 hours a day during the city’s railroad festival and cook barbecued chicken continuously for over 26 hours at various local fundraisers. Up to twice a month, he was required to ride around the city with Henagan between 2 a.m. and 3 a.m. to count burned out street lights. Henagan took Williams to Texas once to transport furniture Henagan had been given. Suchanek required him to work off-hours for Suchanek’s private businesses, sometimes until midnight or later and often on weekends. These ventures included Suchanek’s space jump rental and his grass cutting business. Williams admits he was paid occasionally for work he performed for Henagan and Suchanek.

(Williams v. Henagan, et al., 07-30997, 5th Cir., Jan. 28, 2010, pp. 2-3)

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).