Only BOP, Not Private Contractors, Can Tally Good Time Credits in Disciplinary Hearings

Image courtesy kickstarter.com

Image courtesy kickstarter.com

By Prison Legal News

On February 14, 2013, the Ninth Circuit Court of Appeals reversed the denial of a habeas corpus petition that sought restoration of good time credits forfeited after a prison disciplinary hearing.

The appeal was brought by federal prisoner Oscar Arredondo-Virula (Arredondo) after a California federal district court denied the petition. Arredondo was docked 27 days good time credit, ordered to serve 15 days administrative segregation, and lost visitation privileges after he was found guilty of violating a prison rule.

Curtis Logan, an employee of Management and Training Corporation (MTC), the private contractor operating the federal prison Arredondo was held at, found Arredondo guilty based on an incident report and imposed the sanctions.

Logan was not an employee of the Bureau of Prisons or Federal Prison Industries, Inc. Arredondo argued that under 28 C.F.R. §541.10(b)(1)(2010), “only institution staff may take disciplinary action.” Staff was defined as “any employee of the Bureau of Prisons or Federal Prison Industries, Inc.”

The Ninth Circuit wrote that a significant difference exists between employees and independent contractors. It held the plain meaning of the law prohibited Logan from disciplining Arredondo. It reversed the district court, and ordered it to promptly grant the petition. The Court also noted that 28 C.F.R. § 541.10(b)(1) is no longer in force. See: Arredondo-Virula v. Adler, 510 Fed. Appx. 581 (9th Cir. 2013). Following remand, the district court granted the habeas petition and ordered reinstatement of the 27 days of good time credit.

(Published by Prison Legal News; used by permission)

Mother's Day at Your Local Prison

Image courtesy trendingexpress.com

Image courtesy trendingexpress.com

By Christopher Zoukis

This Mother's Day, like this past Christmas I won't be able to speak with my mom and tell her I love her. (And this isn't because I'm in prison, but because I've spoken out about prison conditions and have had my phone privileges rescinded). I say not this to say "poor me," but to think about what my mother will go through on May 10th when she doesn't hear my voice. And knowing how this breaks my heart, I can only begin to imagine what that must be like for thousands of incarcerated women who will face this reality not just on Mother's Day, but for most days during their incarceration.

It is never so black and white as "well, you should have thought about that before you did the crime." Because regardless of whether foresight plays a role in someone's imprisonment, the children are punished in this situation. It's easy enough for people to spout the old "you do the crime, you do the time" adage. But people who say that are usually so single-mindedly focused on the incarcerated individual that they forget about the world of people they leave behind.

Regardless of how we feel about people who are in prison, children have a right to see, to touch, and to speak with their parents (obviously, provided doing so poses no risks for the child).

The problem begins early on for mothers who are pregnant when incarcerated, most of which are forced to hand the child over to authorities (and then either family or state services) immediately after birth. The detrimental short-term and long-term effects this can have on a child's well-being are well-recognized, and have spurred on prisons in some states to adopt nursery programs.

But these programs are only a band-aid solution for mother's whose incarceration extends beyond their infant's first 12 months (there are also concerns about the safety and regulation of these programs when they're being run by prison officials).

The fact is that only 9 percent of incarcerated women will ever receive a visit from their under-18 children. Prisons are often too far away to be viable for family members to visit. They may not have dependable transportation, or associated costs may be too high. Over 50 percent of state prisons are between 101-500 miles away from an inmate's last residence, and 43 percent of federal prisons are more than 500 miles away.

In institutions where calls have to be made collect, the cost of long-distance may be too prohibitive for even maintaining phone contact. And given that overwhelmingly the families of individuals incarcerated in this country live in poverty, these things matter if we're actually interested addressing the reproduction of cycles of poverty and recidivism in this country.

Contact with family is critical in the rehabilitation process, as the maintenance of strong familial connections through quality visitation and contact reduced recidivism by up to 40 percent.

But even more important than the impact on inmates (and it is important), is what being deprived parental contact means to the children left behind. Contact with parents helps ease feelings of abandonment or a child's fear that they somehow caused the parent to leave. And the odds of a child of an incarcerated parent being involved in delinquency themselves increases significantly when they're denied parental visitation.

Organizations exist to help facilitate children's visits to incarcerated parents, but they are few and far between. This Mother's Day, Get on the Bus will (as it does on Father's Day) reunite hundreds of children with their incarcerated mothers in California -- so for some women they will have the bittersweetness of the day eased. But for thousands more, the day will remain one of profound sadness.

And so while people run to the stores on Saturday, getting stressed and upset over the crowds I hope they will be grateful that for every word or every touch they share with their mothers the next day. Because so many children will not be afforded that luxury -- and as a society, we might be well-served spending some of that energy spent stressing out at the shopping mall trying to do something to change that.
If you know someone who could benefit from a children's visitation program, please point them to the following links:

GirlsScouts.org
GetOnTheBus.us
BlackFamilies.org

P.S. Mom, I love you.

(Published by huffingtonpost.com; used by permission)

Opening Job Opportunities For People With Records

By Anthony Tinsman 04276-063, FCC PO BOX 3000, Forrest City, AR., 72336

A fundamental promise of America is that work will be a ladder to economic opportunity and an anchor of economic security for working families. But 65 million Americans - one in four adults - "need not apply" due to an arrest or conviction on their records that often follow them throughout their lives.

Most employers conduct criminal background checks, potentially derailing qualified workers who are rebuilding their lives or who have inaccurate records for minor offenses. Cases include employment refusal due to 3-year old drug possession charges and housing applications turned down for three misdemeanor arrests. While some attorneys volunteer at national law offices with Pro Bono programs that assist ex-offenders in expunging criminal records, these services are not widely known and only serve as a stop-gap solution.

The problem touched home recently when a class participant stayed after, venting about his situation "on the streets." He was stressed out about his looming release date in 3-years. After serving 17 and a half years in Louisiana state prison, he'd released back to a bad neighborhood with severe labor shortages and employers who looked at his record with alarm: Drug and weapon convictions.

"I was honest with them, and I had licenses for carpentry, HVAC, electrical, all that, I got in the penitentiary. But they kept steady hiring other people." He got discouraged and within 6 months was federally indicted for selling drugs -again.

Changing hiring policies could change a lot of similar stories. Heeding the call, the National Employment Legal Project (NELP) has led a coalition of organizations including Community Housing Partnership, All Of Us Or None, Legal Services For Prisoners With Children, Fair Shake Reentry Resource Center, and Coalition on Homelessness and many others to remove unsteady and badly-designed barriers to employment, housing and prosperity for people with criminal records. Namely the Fair Chance - Ban The Box campaign.

"Ban The Box" refers to the policy of removing the conviction history check-box from job applications.  

From 2013 to 2014, the number of jurisdictions adopting fair chance policies doubled. For example, since fair hiring policies passed in Durham County, NC, the number of applicants with criminal records has nearly tripled. The success has strengthened organizers, and with support from Governor Pat Quinn and officials in other states, employers in the City of Chicago, as well as Montgomery and Prince George's counties in Maryland must adhere to ban the box policies signed into law.

Mayer Ed Lee enacted amendments with support from the San Francisco Board of Supervisors, making it the ninth jurisdiction to enact ban-the-box legislation. And private sector employers in the District Of Columbia will soon be required to comply with a new law restricting the ability to rely on criminal records for employment purposes. For the latest numbers, links and news on law and policies see NELP's State and Local Ban the Box Guide, and join the campaign on facebook.com/fairchance.

Demonstrating another dimension of support, the Workplace Privacy Counsel posted an interesting report recently: "Death of the Box: Why the criminal history question on job applications is heading towards extinction" (http://www.littler.co/category/wordpress-category/ban-box). At its heart, however, for lasting change, strong community engagement and the leadership of those directly impacted are essential.

This means YOU, ex-offenders. And, yes, prisoners too. We must all take part in announcing our needs and realistic solutions.

How? NELP offers a free 65-page resource guide entitled "Fair Chance - Ban the Box toolkit: Opening Job Opportunities for People With Records," by Michelle Natividad Rodriguez and Anastasia Christman. It contains fact sheets, sample letters from legislators and endorsing organizations who've pushed for changes. There are bibliographical references and MORE to help start your own Ban The Box campaign locally.

While a hundred thousand volunteers worked across the nation to enact fair chance policies, I sat in a classroom trying to get a  future ex-offender to accept the truth. Jobs had been hard to find, but his counselor gave him $200 gas cards and $100 EBT bonuses to help out. "So you weren't starving?" I clarified. He admitted that he could have stuck it out at a temp-service and got in somewhere eventually, and self-employment might have been an option. Even without a fair chance.

Sometimes patience is the problem.

As with most matters of reentry and criminal behavior, temptation, maturity, drive and unfinished business on the streets spins the moral compass. A steel door tends to center it destructively if you aren't prepared to embrace the changes we all have to make to succeed in society. He brushed his hand over a tight watch cap and pulled it lower over his eyes. "I know I can't keep putting my mom through this. My family."  

Perhaps joining the ban-the-box campaign could illuminate a better approach to problems. Campaigning has the added benefit of networking with people who have realistic expectations and connections. I recommended it to him. As the prison reform movement picks up with changes in federal sentencing guidelines, more ex-offenders will transition to their communities looking for a job. Ban-The-Box is the best grassroots model today. "There is no time like NOW," I told my student. And besides, what's closer to the American Dream that getting involved with changing outdated systems?

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Footnotes:

1- NELP National Office, 75 Maiden Lane, Suite 601, New York. NY., 10038, (212)-285-3025

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Author:  Anthony Tinsman is a PEN award-winning author and the designer of Take a Load Off, an evidence based prisoner re-entry program taught in federal prison. He is an advisory Board Member to the ICBRP (International Board of Recovery Professionals).

He is serving a mandatory minimum 35-year sentence for Armed Bank Robbery. He is a first time offender.

Tinsman's published work includes Hungry Robot, a children's bed-time story. His next book – Book Of Prosper – is a collaboration with Michael Collins and will be available later this year.

Outside Contact: Mr. O (Tinny) 649 N. Rupple Rd., Fayetteville, AR 72704.

Write to Tinny at:  04276-063, FCC PO BOX 3000, Forrest City, AR 72336.


Some GPS Devices Capable of Audio Recording

Image courtesy geektime.co.il

Image courtesy geektime.co.il

By Christopher Zoukis

Civil libertarians and prisoner advocacy groups have expressed shock and outrage at the discovery that some Global Positioning System (GPS) tracking devices, used to monitor the movement and whereabouts of many pre-trial defendants, parolees, sex offenders and other persons, function like cell phones and are capable of recording conversations without the knowledge or consent of the people wearing them – including confidential conversations with their attorneys.

The audio recording technology first came to light in Puerto Rico, when defense attorney Fermín L. Arraiza-Navas asked a client during a meeting in San Juan about the GPS ankle bracelet he was wearing as a condition of his bail.

“They speak to me through that thing,” the man said.

During a court hearing on a motion subsequently filed by Arraiza-Navas to have his client’s GPS device removed, a technician for SecureAlert, the company that manufactures the monitors, revealed their true capabilities. The technician – who testified through the cell phone feature of a GPS ankle bracelet – told the court that although the device is supposed to vibrate and give an audible warning when activated, it can be turned on at will and without warning.

Proponents of the technology argue that it enhances accountability and the ability of authorities to contact the wearer in emergencies. They point to the real-time monitoring of the devices as an essential deterrent, because here-and-now tracking allows law enforcement to be notified if the wearer violates any movement restrictions.

The wearer can also press a panic button to initiate a call to a SecureAlert support technician, and technicians can call individual GPS monitors to speak with the wearers. But while the devices emit a loud tone and the phrase “secure alert,” or vibrate when the line is opened or closed, the alert function can be bypassed. Thus, an open connection to a monitoring device can be established without the knowledge of the wearer.

Assistant San Juan District Attorney Erika Quiñones-González denied in court that the device infringes on a defendant’s constitutional rights, asserting that “the supervised defendant is warned by a vibration and sound before the line is open to allow communication,” and that the device emits an audio alert when the phone call is over.

However, Arraiza-Navas pointed out that the GPS monitor emitted no alarm or signal when the courtroom communication with the SecureAlert technician ended. Further, he told the court that the system’s operator said the device could be activated “unilaterally” by SecureAlert, and that “the conversations could be heard.”

Arraiza-Navas argued that the high-tech ability of the devices oversteps the state’s right to monitor defendants. “It cannot be supported by law that in order to be set free under bail, [persons] charged with a crime have to waive their right to privacy and to keep their conversations with attorneys confidential,” he wrote. He decried the monitoring as “flagrantly unconstitutional.”

Other legal experts suggested that the ability of government officials and private companies to secretly listen in on and record private conversations violates the Fourth Amendment, the Federal Wiretap Act and various states’ constitutions.

William Ramírez, executive director of the Puerto Rico Chapter of the American Civil Liberties Union, said the right to privacy and right against self-incrimination could be infringed if defendants are not notified that their conversations can be monitored or recorded by the Pretrial Services Office or SecureAlert.

Victor A. Meléndez-Lugo, who heads the Appeals Division of the Puerto Rico Legal Aid Society, said the possibility of such surreptitious eavesdropping is “shocking.”

“The recording or interception of phone calls in Puerto Rico constitutes a crime,” he noted. “If that is happening in Puerto Rico it has to stop happening since yesterday.”

The government’s ability “to listen and/or record the unauthorized conversations between a defendant with his or her lawyer through an electronic GPS bracelet represents the most absolute and gross infringement to that person’s constitutional rights,” added Puerto Rico legal expert Carlos E. Ramos, a professor at the Interamerican University Law School.

Other civil libertarians agreed. “If it allows eavesdropping or to record conversations, [it] is a very important issue that is worth exploring,” said Ben Wizner, senior staff attorney for the ACLU in Washington, D.C.

The issue is not a minor one; as many as 200,000 people in the U.S. are subject to some sort of electronic monitoring devices. [See: PLN, March 2012, p.20].

“If law enforcement agencies anywhere in this country are using such microphone-equipped GPS ankle bracelets they must, at a minimum, make both a general disclosure of that fact to the public and our elected representatives, as well as a specific and complete disclosure of that fact to each and every person who might wear one of those ankle bracelets, as well as to his or her attorney,” stated Jerry J. Cox, president of the National Association of Criminal Defense Lawyers.

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Sources: www.thecrimereport.org, Associated Press, Puerto Rico Center for Investigative Reporting

(Published by Prison Legal News; used by permission)

California: Authorized Possession of Legal Materials Cannot Serve as Basis for Gang Validation

Image courtesy witnessla.com

Image courtesy witnessla.com

By Prison Legal News

The California Court of Appeal has held that documents in the possession of a prisoner who is providing legal assistance to another prisoner cannot be used to validate the first prisoner as an associate of a prison gang.

In February 2009, California prisoner Robert Villa was placed in administrative segregation (ad seg) pending an investigation into his involvement with the Mexican Mafia prison gang. A year later the investigation concluded and, based on four “source items,” Villa was validated as a gang “associate.”

Villa filed a petition for writ of habeas corpus challenging his validation as well as his placement in ad seg. Specifically, he argued that 1) his possession of legal documents belonging to a validated Mexican Mafia associate to whom he was providing legal assistance was authorized by regulation and thus could not serve as a basis for his own validation, and 2) a confidential memorandum linking him to the gang in general was insufficient to establish the requisite “direct line” to a current or former validated gang member or associate.

The Court of Appeal agreed and ordered prison officials to expunge all records of Villa’s alleged gang association and to cease housing him in ad seg based on that validation.

The appellate court found that section 3163 of Title 15 of the California Code of Regulations “clearly” permits a prisoner providing legal assistance to another prisoner to possess the other prisoner’s “legal papers, books, opinions, and forms.” It concluded that Villa “cannot be punished under one regulation merely for acting in accordance with another regulation.”

The Court of Appeal emphasized that its ruling did “not transform section 3163 into a talisman to ward off gang validation,” because prison officials could still determine, as part of the validation process, that a prisoner claiming to be operating under section 3163 was not actually providing legal services to other prisoners whose documents he possessed.

The appellate court also determined that under section 3378(c)(4), the “direct link” needed to validate a prisoner as a gang member or associate must connect that prisoner to a specific person, i.e., “a current or former validated [gang] member or associate.” A link to the gang in general, it determined, was insufficient. See: In re Villa, 214 Cal. App. 4th 954 (Cal. App. 4th Dist. 2013).

(Published by Prison Legal News; used by permission)