(Published on Westword.com).
The U.S. Penitentiary Administrative Maximum outside Florence, Colorado, better known as ADX, has a deserved reputation as the highest-security supermax prison on the planet. It houses some of the most notorious inmates in North America — from Unabomber Ted Kaczynski and shoe bomber Richard Reid to Aryan Brotherhood leader Barry Mills, double agent Robert Hanssen, and Colombian guerrilla leader Simon Trinidad — in 23-hour-a-day, escape-proof lockdown.
Among human rights activists, though, ADX is controversial not just for what it keeps in but what it manages to keep out. Proper treatment of the mentally ill, for one thing; a massive lawsuit against the U.S. Bureau of Prisons alleges a history of abuse of delusional, self-mutilating inmates. Journalists, for another; as first reported in Westword several years ago, the prison has, contrary to stated BOP policy, routinely denied every reporter's request for a face-to-face interview with an ADX prisoner since 2001. Aside from one tightly supervised media tour in 2007, that practice continues today.
Officials at ADX also seem intent on keeping out Prison Legal News, a feisty monthly magazine with readers among the incarcerated in all fifty states — including nineteen subscribers at ADX. According to a lawsuit recently filed by PLN in Denver's federal district court, officials at ADX have ignored BOP policy, the First Amendment and common sense for the past five years by frequently rejecting the publication on the grounds that it is "detrimental to the security, discipline, or good order of the institution or...might facilitate criminal activity."
PLN has often challenged state or federal prisons that attempt to ban the publication, and this isn't its first scuffle with authorities at ADX. A few years ago the supermax's mania for censorship resulted in confiscating particular issues of a wide range of publications, from Westword to the Christian Science Monitor and The New Yorker, simply because that issue contains an article that makes reference to a prisoner somewhere, regardless of whether the reference has any bearing on operations at ADX. PLN took the BOP to court, reaching an informal settlement in 2008 that considerably eased restrictions on what references to other prisoners or prisons would be allowed.
But that bout of glasnost lasted only a couple of years. Since 2010, the magazine's suit alleges, the BOP has banned eleven issues of PLN. The notices sent to the magazine didn't always explain why each of the issues were rejected, but the lawsuit states that "the rejections appear to treat any reference to any ADX inmate or staff member — current or former — as a security risk." This includes information publicly available from the prison law library even to ADX inmates, the suit points out, such as reports on lawsuits against ADX or one on former federal prison guards sentenced for abusing prisoners.
The lawsuit notes that ADX officials made no attempt to redact just the article that was deemed too close to home, preferring to prevent subscribers from getting the entire issue. Nor was the notice of rejection or the appeal process conducted in a timely way.
ADX is the only federal prison that has banned PLN in recent years, according to the magazine's founder and editor, Paul Wright. "I have no idea why they're doing this," he says. "It could just be as simple as a new person in the mail room. But these guys are in total isolation, and I don't think it's a security risk or a big secret [to report] what any of those guys are in there for."
For the past six years the Obama administration has been pushing for closing the military detention center at Guantanomo Bay and moving a handful of its detainees to ADX — a proposal that has prompted occasional snorts of indignation and protest from Colorado political leaders. If that move ever happens, it will certainly be reported in Prison Legal News. Whether their subscribers inside ADX will get to read those stories is another question. "We know we're in for a long, hard-fought slog," says Wright, who's lined up impressive legal talent from several firms in Denver, Chicago and Washington to help pursue the case. "Litigating the BOP is really intense."
The district court granted summary judgment to the BOP defendants and the Third Circuit affirmed based on Pooler v. United States, 787 F. 2d 868 (3d Cir. 1986). Pooler limited the FTCA’s law enforcement waiver proviso to tortuous conduct that occurred during the course of executing a search, seizing evidence or making an arrest. The appellate court reasoned that since Millbrook’s claims occurred outside this narrow interpretation, they must be dismissed. See: Millbrook v. United States, 477 Fed. Appx. 4 (3d Cir. 2012). The Supreme Court granted review and found that the relevant portion of the law enforcement proviso waives sovereign immunity when a claim arises from one of six intentional torts (assault, battery, false imprisonment, false arrest, malicious prosecution or abuse of process) that occur during the acts or omissions of an “investigative or law enforcement officer. ” 28 U. S.C. § 2680(h).
The Court also examined the federal statutes that define an investigative or law enforcement officer as one empowered to execute searches, seize evidence or make arrests for violations of federal law. In an opinion delivered by Justice Clarence Thomas, the Supreme Court concluded that “executing a search, seizing evidence, or making an arrest” only referred to the type of person who could be liable under the FTCA, and did not limit the actions for which that person could be held liable. The Court found there was no basis for concluding that an investigative or law enforcement officer’s intentional tort must occur in the course of executing a search, seizing evidence or making an arrest in order to subject the United States to liability under the FTCA.
Accordingly, the judgment of the Third Circuit was reversed and the rulings in Pooler and Orsay v. U.S. Dept. of Justice, 289 F. 3d 1125 (9th Cir. 2002), which had limited the scope of the FTCA’s law enforcement immunity waiver, were abrogated. “By its terms, this provision focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a tort claim against the United States. The [law enforcement] proviso thus distinguishes between the acts for which immunity is waived (e. g., assault and battery), and the class of persons whose acts may give rise to an actionable FTCA claim, ” the Supreme Court explained. “The plain text confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. ” See: Millbrook v. United States, 133 S. Ct. 1441 (2013).
Portland, OR – On April 24, the U.S. District Court for the District of Oregon, Portland Division, held that a postcard-only policy at the Columbia County Jail, which restricted mail sent to and from detainees at the facility to postcards, is unconstitutional. The court therefore has prohibited enforcement of the policy permanently – the first time in the United States that a jail’s postcard-only policy has been struck down following a trial on the merits.
The ruling, by federal judge Michael H. Simon, was entered in a lawsuit against Columbia County and Sheriff Jeff Dickerson filed by Prison Legal News (PLN), a non-profit monthly publication that covers criminal justice-related issues. PLN, a project of the Human Rights Defense Center, sued in January 2012 after Columbia County jail employees rejected PLN’s monthly news publication and letters mailed to detainees. Further, the jail had failed to provide PLN with notice or an opportunity to appeal the jail’s censorship of PLN’s materials.
The rejection of PLN’s publications and letters was attributed to the jail’s postcard-only policy and a policy and practice that prohibited detainees from receiving magazines. PLN contended that such policies violated its rights under the First Amendment, and that the lack of notice and opportunity to appeal was a violation of the Fourteenth Amendment.
During the litigation, the defendants admitted “that inmates have a First Amendment right to receive magazines and inmates and their correspondents have a Fourteenth Amendment right to procedural due process.” However, the jail defended its postcard-only policy and claimed there was no official policy banning magazines at the jail.
On May 29, 2012, Judge Simon entered a preliminary injunction prohibiting the defendants from enforcing their postcard-only policy. He ruled that the policy "drastically restricts an inmate’s ability to communicate with the outside world," and "prevents an inmate’s family from sending items such as photographs, children’s report cards and drawings, and copies of bills, doctor reports, and spiritual and religious tracts." The court also observed that the jail’s postcard-only policy "inhibits rehabilitation," citing a U.S. Supreme Court decision that found "inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation." Undeterred, the defendants continued to defend their policy at trial, held from February 5 to 8, 2013.
Following the trial, the district court found in its April 24 ruling that the defendants’ rationales for adopting the postcard-only policy at the jail – preventing the introduction of contraband and saving time during mail inspection – were not supported by the evidence.
The court also determined that jail employees “did not in fact allow magazines to enter the Jail,” and that a ban on magazines was specifically declared in the jail’s inmate handbook, in a jail memorandum and on the jail’s website. Further, "Sheriff Dickerson credibly testified that he did not know that the First Amendment required the Jail to allow inmates to receive magazines when he took office in 2009." The district court therefore concluded that the defendants had a policy and custom of prohibiting magazines, in violation of the First Amendment.
Accordingly, Judge Simon entered a permanent injunction that enjoins the defendants from restricting incoming and outgoing mail to postcards only. "[T]he postcard-only policy creates a hurdle to thoughtful, personal, and constructive written communications between an inmate and his or her unincarcerated family and friends," he wrote. He also declared "that inmates have a First Amendment right to receive magazines and that it would be unconstitutional for Defendants to refuse to deliver magazines to inmates solely because they are magazines," and that detainees and their correspondents have a right to procedural due process when mail is rejected, including notice of the rejection and the ability to appeal same.
"This lawsuit could have been avoided had Sheriff Dickerson not enacted an unconstitutional, harmful policy that limited correspondence to and from detainees to postcards, and had he ensured that jail employees were properly trained as to the First Amendment and due process rights of both detainees and those who correspond with them," stated PLN editor Paul Wright. "Unfortunately he failed in both of these respects, and the court’s ruling is the result."
"The court’s well-reasoned and thoughtful opinion is notice to other jails that a postcard-only policy does not serve a legitimate purpose, and indeed harms the public interest. Jails would do well to steer clear of adopting ineffective policies that violate the Constitutional right of free speech," added attorney Jesse Wing, who represented PLN at trial.
PLN was represented by Marc D. Blackman with the Portland law firm of Ransom Blackman, LLP; Jesse Wing and Katie Chamberlain with the Seattle law firm of MacDonald Hoague and Bayless; and Human Rights Defense Center general counsel Lance Weber and staff attorney Alissa Hull. The case is Prison Legal News v. Columbia County, U.S. District Court for the District of Oregon, Case No. 3:12-cv-00071-SI.
The Human Rights Defense Center, founded in 1990 and based in Brattleboro, Vermont, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. HRDC publishes Prison Legal News (PLN), a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has around 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jail-related articles, news reports, court rulings, verdicts, settlements and related documents.
For further information, please contact:
Paul Wright, Editor
Prison Legal News
(802) 257-1342 (office)
(802) 275-8594 (cell)
Jesse Wing, Attorney
MacDonald Hoague & Bayless
705 Second Avenue, Suite 1500
Seattle, WA 98104
(206) 622-1604 (office)
by Michael Ollove
Newly freed prisoners traditionally walk away from the penitentiary with a bus ticket and a few dollars in their pockets. Starting in January 2014, many of the 650,000 prisoners released from prison each year will be eligible for something else: health care by way of Medicaid, thanks to the Affordable Care Act (ACA).
A sizeable portion of the nearly 5 million ex-offenders who are on parole or probation at any given time will also be covered.
The expansion of Medicaid, a key provision of the health care reform law, is the main vehicle for delivering health insurance to former prisoners.
Researchers and those who advocate on behalf of ex-convicts hail the change as monumental, saying it will help address the generally poor health of ex-offenders, reduce medical costs and possibly keep them from sliding back into crime.
“It potentially revolutionizes the criminal justice system and health system, ” said Faye Taxman, a health services criminologist at George Mason University. “We now have a golden opportunity to develop and implement quality interventions to both improve health outcomes for this population and also reduce the rate of criminal activity. ”
Medicaid is the federal-state health insurance partnership for the poor. Under federal law, states must provide Medicaid to children, pregnant women and disabled adults who fall below certain income thresholds. The states are not now required to extend Medicaid to adults under 65 who are not pregnant or disabled. A small minority of states does so; most states do not.
Since most recently-released prisoners are not pregnant or disabled, the vast majority of them do not have Medicaid or health insurance of any kind. As a result, studies show, many do not receive treatment for chronic conditions or continue on medications prescribed in prison. They also do not generally see primary care doctors, relying instead on emergency rooms, an expensive way of delivering medical care.
The ACA could change that. Beginning in January, states that agree to the Medicaid expansion will be required to provide Medicaid to all non-elderly lowincome adults. [See: PLN, Jan. 2013, p. 40]. For the first time, many of the 5 million ex-offenders on parole or probation will be eligible for such medical assistance. It applies to those released from either state or federal prisons. The exceptions will be former prisoners living in those states that currently have limited Medicaid eligibility for adults and that ultimately opt out of the Medicaid expansion, a choice accorded the states in the U. S. Supreme Court’s ACA ruling last June. [National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) ].
Ex-cons with jobs who make too much money to be eligible for Medicaid could still qualify for federal tax credits to purchase health insurance through the new state exchanges. Under the ACA, like everyone else, they will be required to have health insurance of some kind starting next January.
A Sicker Population
Although extending benefits to exoffenders may not be the most popular aspect of the ACA, the expansion to ex-cons is seen as significant because this population is generally in worse health than the overall population. They have higher rates of chronic and infectious diseases (in particular, asthma, hypertension, tuberculosis, diabetes, hepatitis and HIV/AIDS), addiction and mental illness. Those ailments and the lack of treatment on the outside contribute to the high mortality rate among former prisoners noted in a 2007 study published in The New England Journal of Medicine.
The study found that in the first two weeks after release, the rate of death among former prisoners was more than 12 times greater than the rate for the general public. The leading causes of death for the ex-cons were drug overdose and cardiovascular disease.
Health insurance coverage for exprisoners by way of Medicaid should help reduce high mortality, researchers say. Given the high rate of addiction and mental illness among ex-prisoners, another vital law that helps them is the federal Mental Health and Addiction Equity Act, which requires health insurers to provide benefits for mental health and substance treatment that are on par with those they offer for medical and surgical services.
The corrections system is obligated to provide prisoners with health care, both physical and mental. New prisoners usually receive health screenings early in confinement. Although the quality of treatment varies across states, prison affords the best health care for many prisoners that they’ve received in their lives.
Many of the 650,000 prisoners released next year will be eligible for Medicaid. To ensure continuity of care, researchers and advocates are urging states to help these prisoners enroll in Medicaid and link them to health care providers before they walk through the prison gates.
“When people are on their own, the likelihood of them taking that first step is not high, ” said Paul Samuels, president of the Legal Action Center, which advocates for those with histories of addiction, HIV/ AIDS or criminal records. “Their lives are very disordered. Many don’t have an ID, so enrolling in programs can be very difficult. ”
New York, Oklahoma, Florida, Illinois and California are among the states that already have pre-release programs aimed at connecting at least some outgoing prisoners with Medicaid. Some states, including New York, are also investigating ways of connecting ex-prisoners with full-service medical homes that coordinate health care services to manage patients’ care.
“The states that get out ahead of this, they’re going to have fewer people incarcerated and healthier societies, ” said Joshua Rich, a professor of medicine and community health at Brown University, who studies the health of ex-offenders.
The Medicaid expansion will apply to prisoners getting out of jails as well as penitentiaries, although the turnover in jails is much faster with fewer prerelease programs. Those getting out of jail may be eligible for Medicaid, but they may have to find their way to it themselves.
Improved health can also afford former prisoners better prospects in the outside world. “Lots of times when people come up on supervised release, part of the conditions for their release is that they find employment, ” said Anita Marton, deputy director of the Legal Action Center. “We find people who try to engage in job searches but their illnesses prevent them from being able to succeed, whether it’s because of untreated addiction, HIV or mental illness. ”
Treatment might not only help them land jobs but also keep them from a return trip to prison. Addicts who no longer use drugs no longer need to be involved in illegal activities to finance their habit. Those with mental illness who are taking medication or seeing therapists are less likely to act out in ways that land them back behind bars. Research has shown that health care, particularly in the areas of substance abuse and mental illness, reduces the likelihood of ex-offenders returning to prison.
Researchers and advocacy groups say the benefits of providing health care to ex-felons do not end with the ex-felons themselves. Prisons have high rates of hepatitis C, HIV and tuberculosis. Untreated former prisoners carry those diseases into communities on the outside and spread those infections.
Health treatment could reduce the infection rates in the areas where ex-felons tend to settle. Since prison populations are disproportionately high in African- American and Hispanic populations, the Medicaid expansion to former prisoners could also reduce the health disparities among those groups.
And finally, if former prisoners are linked up with primary care providers or community health centers, they may turn to emergency rooms less for their health care needs, which would contribute to an overall reduction in medical costs.
This article was originally published on April 5, 2013 by Stateline, a publication of The Pew Charitable Trusts (www.pewstates.org/projects/ stateline) ; it is reprinted with permission of the author.
If you received a collect telephone call from an inmate at a Washington Department of Corrections Facility between June 20, 1996 and December 31, 2000, your rights may be affected by a class action settlement.
A $45,000,000 settlement has been reached in a class action lawsuit against AT&T. The Court previously certified the lawsuit as a class action and is now considering whether to approve the settlement. This notice summarizes the settlement, your rights, and how to file a claim for a share of the settlement if it is approved by the Court.
You may be a member of the class if you accepted collect calls within the state of Washington from Washington State Reformatory (Monroe), Twin Rivers Corrections Center, Indian Ridge Corrections Center (Arlington), Special Offender Center (Monroe), Clallam Bay Corrections Center, Washington Correction Center for Women (Purdy), Olympic Corrections Center, Pine Lodge Pre- Release/Correction Center, Coyote Ridge, Washington Corrections Center (Shelton), McNeil Island Penitentiary, Washington State Penitentiary (Walla Walla), Airway Heights, and Tacoma Pre-Release between June 20, 1996 and December 31, 2000.
What’s this about?
This lawsuit claims that AT&T failed to provide required rate information on collect calls from Washington Department of Corrections facilities. The suit seeks statutory damages for persons who accepted or paid for those calls, which the Court has defined as $200 per person plus the cost of the collect calls accepted.
What does the settlement provide?
The settlement provides: (1) payment of $45,000,000, which will be distributed to class members after the payment of court-approved attorneys’ fees, litigation costs, administrative expenses, and case contribution award; (2) attorneys’ fees of up to 35% of the gross settlement amount and approximately $500,000 for litigation costs and expenses; (3) $50,000 case contribution awards to the Named Plaintiffs, Sandy Judd, Tara Herivel and Columbia Legal Services; and (4) release of AT&T from all liability arising from the calls at issue in this litigation. The Settlement Agreement may be viewed at www.sylaw.com/ ATTsettlement.
How do you make a claim?
What are your rights?
If you are a member of the class, you have the right to object to, comment on, or support the Settlement Agreement or the request for payment of attorneys’ fees, costs, expenses or case contribution award or to exclude yourself from the class. You must submit your written comments by June 11, 2013 to: (1) the Clerk of the Court, Re: Judd v. AT&T, T-Netix, Cause No. 00-2-17565-5SEA, King County Superior Court, 516 3rd Ave., Seattle, WA 98104; (2) Chris R. Youtz and Richard E. Spoonemore, Class Counsel, Sirianni Youtz Spoonemore, 999 Third Avenue, Suite 3650, Seattle, WA 98104; and (3) Charles W. Douglas, AT&T’s Counsel, Sidley Austin pllc, One South Dearborn Street, Chicago, IL 80603. You have the right to exclude yourself from this lawsuit. To do call 206-838-3210 for instructions. You may also send a letter postmarked no later than June 7, 2013 to class counsel containing your name, address, and telephone number with a signed statement that you want to be excluded from the class.
How can I get more information?
You may receive more information at www. ratedisclosure.com or by calling 1-877-457-4246 or at www.sylaw.com/ATTsettlement.
Prison Legal News - May 2013