John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.
This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.
Today's Sacramento Bee has a front-page piece questioning the response of CDCR staff and medical personnel to the hanging death of inmate David Scott Gillian in Pleasant Valley State Prision on October 15.
The title of this post is inspired by Professor Michael Tigar's post on his blog TigarBytes entitled "Private Prisons are Unconstitutional," which was highlighted in Professor's Berman's sentencing blog.Based on Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Monroeville, 409 U.S. 57 (1972), and other cases, Prof. Tigar contends that contracts requiring the feds to send enough people to prison to fill up 80-100% of beds in private prisons are troubling and raise serious due process concerns. He ends his post with the "hope that someone will start to litigate these issues."
I echo that thought. One such issue I've raised is whether due process prohibits private prison employees from taking away good time credit (GTC) for disciplinary violations where the corporation that runs the prison has a financial incentive to keep its prison cells full. While inmates may challenge the disallowance of federal GTC through a § 2241 petition in federal court, it is exceedingly difficult. They are not entitled to a court-appointed attorney and rarely have the funds to hire an attorney. And courts often require that they first go through the Bureau of Prison's legal obstacle course to exhaust their administrative remedies, all with limited legal access and without the help of counsel.
I raised this issue, however, in a successful appeal last year after the Ninth Circuit, on its own, appointed counsel. In Arrendondo-Virula v. Adler, No. 10-17654 (9th Cir. Feb. 14, 2013), the Ninth Circuit gave my client back 27 days of GTC that was taken away as discipline imposed by an employee of Mangement and Training Corporation (MTC), which operates the private federal prison in Taft, California. The Court did not reach the due process issue though. Rather, the Court agreed that the then-applicable BOP regulation provided that "only institution staff" could take disciplinary action under 28 C.F.R. §541.10(b)(1) and that the taking away of GTC was unlawful because the MTC employee did not qualify as BOP "institution staff."
The BOP regulation, however, is no longer in effect and the due process question is ripe for litigation. To jump start anyone out there who may be interested in litigating this constitutional challenge, here's the excerpt from my opening brief that raises the unresolved due process issue. [Update: Here's Prof. Tigar's response to this post].
"California inmates on Thursday ended a nearly two-month hunger strike to protest policies that can keep some gang leaders isolated for decades, after lawmakers agreed to hold hearings on complaints about the treatment." Sacramento Bee, 9/5/13
Gov. Jerry Brown and top lawmakers pledged Tuesday to ease prison crowding without releasing inmates early, laying out a plan to spend hundreds of millions of dollars for alternate housing.
The proposal, which has divided Democratic leaders, would pay for enough beds in privately owned prisons and other facilities to shed more than 9,600 inmates from state lockups by the end of the year, as federal judges have ordered.
"This is the sensible, prudent way to proceed," Brown said at a Capitol news conference. "The plan is to find as many cells as needed."
Paying for the extra housing would drain $315 million from the state's $1.1-billion reserve over the next year. The price tag is expected to increase to $415 million for each of the following two years.
The proposal would avoid inmate releases while Brown continues fighting the order to reduce the population in state prisons, which the judges say are unconstitutionally crowded.
Nearly 29,000 inmates in California state prisons refused meals for the third day Wednesday during a protest of prison conditions and rules. The protest extended to two-thirds of the 33 prisons across the state and all 4 private out-of-state facilities where California sends inmates, corrections officials said.
Thousands of prisoners also refused to attend their work assignments for a third day, and state officials were bracing for a long-term strike.
Once the state tallies the official number of participants, the hunger strike could become the largest in state history.
The Brown administration told a federal court Thursday night that to further reduce inmate prison population the Legislature would have to agree to dramatically restructure the laws governing California's corrections system.
The 46-page report, filed at the direction of a specially convened three-judge court, warned that continuing to slash the inmate population, even if lawmakers would go along, would put dangerous prisoners on the streets and further burden county jails and other local services already swamped by Gov. Jerry Brown's realignment program.
Under federal court oversight, California's prison mental health system has been spending far more on anti-psychotic drugs than other states with large prison systems, raising questions about whether patients are receiving proper treatment.
Figures compiled by The Associated Press show that California has been spending a far greater percentage on anti-psychotic medication for inmates than other states with large prison systems. While the amount has been decreasing in recent years, anti-psychotics still account for nearly $1 of every $5 spent on pharmaceuticals purchased for the state prison system.
The federal official who controls medical care in California prisons on Monday ordered thousands of high-risk inmates out of two Central Valley prisons in response to dozens of deaths due to Valley fever, which is caused by an airborne fungus. [ABC30 Video].
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The order will affect about 40 percent of the more than 8,200 inmates at the two prisons, said Joyce Hayhoe, a spokeswoman for the receiver's office.
"The state of California has known since 2006 that segments of the inmate population were at a greater risk for contracting Valley fever, and mitigation efforts undertaken by CDCR to date have proven ineffective," she said in an emailed statement. "As a result, the receiver has decided that immediate steps are necessary to prevent further loss of life."
That creates problems for the corrections department, which faces a December deadline to reduce overcrowding in prisons statewide by an additional 9,000 inmates as part of a federal court order to improve medical and mental health care.
The department must file a plan with the federal courts by Thursday outlining what steps it will take to reduce the prison population by year's end. Corrections Secretary Jeffrey Beard has said the department still wants to bring home more than 8,400 inmates who currently are being housed in private prisons in other states.
A special federal court panel on Tuesday gave Gov. Jerry Brown and state prison officials an extra six months to comply with orders to reduce prison overcrowding in California but did not act on the administration's recent request to end judicial oversight of the prison system.
In a brief order, a three-judge panel agreed to give the Brown administration until the end of this year to reach a cap of about 110,000 inmates in the state's 33 prisons, a target originally set by the court for this June. The court in 2009 had ordered California prison officials to meet that goal after concluding the system was so overcrowded that inmates could not receive adequate medical and mental health care.
This recent GAO Report on the increasingly dangerous overcrowded federal prisons makes me wonder how long it will be before the BOP is subject to a prison reduction order like the order which limits California prisons:
“BOP officials reported increased use of double and triple bunking, waiting lists for education and drug treatment programs, limited meaningful work opportunities, and increased inmate-to-staff ratios,” the September report says. “These factors, taken together, contribute to increased inmate misconduct, which negatively affects the safety and security of inmates and staff.”
The prison facilities are crowded because the inmate population is growing faster than the bureau’s capacity. As the prison population grew 9.5 percent from 2006 through 2011, the agency’s capacity, increasing at 7 percent, didn’t keep up. Even with new facilities, the prison population grew from 136 percent of capacity to 139 percent, according to the GAO.
“Nearly all BOP facilities had fewer correctional staff on board than needed, with a BOP-wide staffing shortage in excess of 3,200,” the GAO said, citing a 2010 Justice Department study.