Inmates at Ohio Prison Secretly Built Computers, Used Them for Crimes

By Christopher Zoukis

For over three months, five inmates in Ohio’s medium-security Marion Correctional Institution tapped into the prison’s network to run two computers they had built piecemeal from parts scavenged from a nonprofit group’s job training program. The program teaches inmates how to disassemble and recycle outdated computer equipment as part of Marion’s “Green Initiative” program.

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Supreme Court Rejects Intellectual Disability Test Methods in Texas Death Penalty Cases

The Supreme Court exempted one man's death sentence citing outdated medical standards and other factors lacking scientific basis in determining his intellectual ability.

The Supreme Court exempted one man's death sentence citing outdated medical standards and other factors lacking scientific basis in determining his intellectual ability.


By Christopher Zoukis

In a 5-3 decision March 28, the U.S. Supreme Court struck down the methods that Texas has been using to gauge whether a defendant’s intellectual ability should spare them the death penalty.

The appeal was for Bobby James Moore, convicted of capital murder and sentenced to death in 1980 for fatally shooting an elderly Houston supermarket clerk during a botched robbery. Twenty years old at the time, Moore spent 19 years on Death Row before winning a new trial, due to ineffective assistance of counsel. But on retrial in 2001, he was again convicted and given a death sentence.

In 2014, Moore’s lawyers sought to persuade a state court he was intellectually disabled to a degree that made sentencing him to death unconstitutional. That court agreed, but the Texas Court of Criminal Appeals rejected its recommendation, finding Moore was not severely impaired enough to be exempt from the death penalty.

On appeal, Moore’s lawyers challenged the state appeals court’s reading of constitution law. The leading federal case, Atkins v. Virginia, set down a basic rule in 2002: executing mentally disabled convicts violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Atkins didn’t set standards on how states should determine mental disability in capital cases, however.

In 2014, in Hall v. Florida, the Supreme Court rejected that state’s use of an IQ score of 70 as precluding mental disability, saying state determinations must be “informed by the medical community’s diagnostic framework.” So the central issue the Supreme Court faced in Moore v. Texas was whether the way Texas made that determination in Moore’s case squared with the high court’s earlier cases.

The majority opinion, from Justice Ruth Bader Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor and Kagan, found it did not. The court which had recommended exempting Moore from the death penalty, it noted, used a generally accepted test, consistent with modern diagnostic standards, with three core parts – mental functioning defects, evidenced by such things as an IQ of roughly 70; adaptive deficits, such as inability to learn basic skills or change behavior to fit changed circumstances; and the onset of such deficits before the age of majority.

Ginsburg cited evidence the first court had found about Moore, a ninth-grade dropout who by age 13 could barely read, write or even tell time or understand common measurement units. In contrast, the Texas Court of Criminal Appeals relied on state case law, which imposed added requirements, based on a 1992 psychology manual no longer accepted by most experts, and added seven “evidence factors” of its own devising, such as whether those who knew the individual treated him or her as mentally disabled. It also faulted the Texas criminal appeals court for relying on IQ scores Moore had received without considering those tests’ margins of error.

While the Court’s earlier decisions allow states leeway in making mental disability determinations, the majority vacated Moore’s death sentence, based on the state's use of outdated medical standards and other factors lacking scientific basis. A dissent by Chief Justice John Roberts, with Justices Alito and Thomas, would have accepted the state’s reliance on an IQ score of 74 for Moore, and complained the majority opinion gave states insufficient guidance on how to determine mental disability.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

Fewer States Automatically Suspend Driver’s Licenses for Drug Convictions

More states are opting out of suspending licenses of people convicted of drug crimes unrelated to driving.

More states are opting out of suspending licenses of people convicted of drug crimes unrelated to driving.

By Christopher Zoukis

Since 2009, seven state legislatures have acted to remove themselves from a 1991 federal law that since 1994 has threatened to reduce federal highway funds to states which did not provide at least a six-month driver’s license suspension for people convicted of drug crimes.

Known at the time of enactment as a “use and lose” measure, the federal law (23 U.S. Code 159) is these days increasingly seen as an outdated “war on drugs” holdover which does little, if anything, to achieve its stated aims, and may actually impede them, while creating serious barriers to re-entry into society for people with histories of drug convictions. Opponents of the federal law claim it burdens courts and detracts motor vehicle agencies from more important work directly related to highway safety.

Despite the clear trend in recent years for states to end or modify their driver’s license suspension laws, or to take advantage of a provision in the federal law allowing states to opt out of suspending licenses of people convicted of crimes unrelated to driving and still keep highway funds, 12 states and the District of Columbia still require license suspension for drug convictions unrelated to driving.

Since some major population centers are among the dozen states with such laws still on the books – including New York, Texas, Florida, Michigan, New Jersey and Virginia – an estimated 122 million people live under such laws, and almost 200,000 lose their driver’s licenses each year for non-driving violations.

But it’s growing increasingly likely even more states will decouple drug convictions from driver’s license suspensions – and some in Congress are even backing federal bills to that end.

As recently as 2004, 27 states automatically suspended or revoked driver’s licenses for at least some drug convictions. Last year alone, legislators in Ohio and Massachusetts gave judges the power to decide whether or not to suspend driver’s licenses after drug convictions, following similar actions in earlier years by Georgia, Delaware, Indiana, Oklahoma, and Wisconsin. Virginia, one of the 12 states still restricting driver’s licenses after drug convictions, is set to opt out starting this July, and others are considering similar actions. Some states have also eliminated or reduced the fees previously required to reinstate suspended licenses.

And a bill — House of Representatives 1952, with the short title of the “Better Drive Act” —  was introduced in the House of Representatives April 5 by Rep. Beto O’Rourke (D-TX). Its six backers are equally divided between Republicans and Democrats. The main sponsor argues his bill, by making it possible for people with drug convictions unrelated to driving to maintain the driver’s licenses they will likely need to find employment and get to their jobs, would ease social re-entry and fight recidivism.

The 10-line bill would remove the federal law withholding some federal highway funds from states which do not automatically suspend driver’s licenses after a drug conviction. The repeal bill, if adopted, would not prevent states from suspending licenses for drug-impaired driving, but would only stop automatic license suspension for offenses not related to driving. The bill to repeal the federal mandate would not restrict states’ ability to suspend or revoke licenses for drug-impaired driving offenses.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and


Massachusetts May Toss Thousands of Convictions for Drug Test Fraud

By Christopher Zoukis

Annie Dookhan, a chemist working for a Massachusetts state drug-testing laboratory, was paroled last year after serving nearly three years in a state prison for her admitted perjury and evidence tampering in state-prosecuted cases. 

Now state prosecutors, responding to an order from the state’s highest court, the Supreme Judicial Court, have dismissed 21,587 of the more than 24,000 criminal convictions linked to Dookhan’s unreliable court testimony and drug-testing reports.

In the largest-ever case of its type, Dookhan pleaded guilty to more than two dozen counts of tampering with drug samples, falsifying lab reports, and misleading investigators during the nine years she worked at a drug-testing lab run by the state’s Department of Public Health.

In some cases, Dookhan apparently did no actual testing, but still issued reports that samples submitted by police or prosecutors in fact contained controlled substances. In some cases, Dookhan signed reports not only for herself, but for other staffers who were supposed to supervise or confirm her work. Contrary to lab rules, she also took calls from police, who told her what drug they expected would be found in the samples they had sent her.

When Dookhan’s mishandling of samples, faked reports and other misconduct came to light in August 2012, the large number of cases potentially involving false evidence raised serious problems not just for defendants who may have been wrongfully convicted, but also for courts, prosecutors and public defenders.

Advocates, including the national American Civil Liberties Union and its state chapter, sought for several years across-the-board overturning of convictions in cases tied to evidence processed, or testimony given, by Dookhan.

Last year, the state’s high court declined, but ordered state district attorneys to winnow down the list of nearly 24,000 convicted in such cases to show which the prosecutors thought strong enough to be retried, without Dookhan-provided evidence. About 60% of those convicted with Dookhan’s assistance faced only minor charges for drug possession, and many have already completed their sentences. Prosecutors had earlier tried, but failed, to persuade the court to leave persons convicted in any of the cases to pursue individual legal remedies, at their own expense, with separate consideration of each case.

In January, the court ordered seven district attorneys to finalize their lists of cases from their districts they view as worth prosecuting again, and submit by April 18. 

The approximately 2,500 cases the prosecutors opted to keep exceeds earlier estimates, which suggested fewer than 1,000 of the cases would survive. But the state court has the last word, since it reserved the right to dismiss additional cases if it thought prosecutors plan to re-file an unreasonably large number of cases.

The Dookhan scandal illustrates the dangers of relying on drug-testing labs, liked the one where Dookhan worked, which have few or no certification requirements, minimal training and lax supervision. One misdemeanor charge against Dookhan was that she had misstated her professional credentials, claiming a nonexistent master’s degree —  a falsehood which went undetected by her employer.

In another drug-testing lab in the state, at about the same time as Dookhan’s misconduct, supervisors similarly failed to detect serious, long-running violations by another chemist – including stealing drug samples, smoking drugs in the workplace, and using the lab to manufacture crack cocaine.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

Nearly 24,000 criminal drug convictions may be linked to a chemist convicted of perjury and evidence tampering in state-prosecuted cases.

Nearly 24,000 criminal drug convictions may be linked to a chemist convicted of perjury and evidence tampering in state-prosecuted cases.

Florida Weighs Restoring Voting Rights for Released Felons

Activists are working to undo the voting rights ban for released prisoners in Florida through a November ballot initiative.

Activists are working to undo the voting rights ban for released prisoners in Florida through a November ballot initiative.

By Christopher Zoukis

For 150 years, Florida has had one of the nation’s harshest policies toward restoring the voting rights of released inmates – lifetime disenfranchisement for former felons – but the state’s voters may soon get a chance to reverse that ban, which is also under legal challenge.

A long-standing provision in Florida’s constitution permanently prevents voting by an estimated 1.6 million Floridians, a figure roughly equal to the adult population of Miami-Dade County. Along with Kentucky and Iowa, Florida is the only state currently providing for lifetime disenfranchisement for felons who have completed all parts of their sentences. In the years since 2000, four other states (Delaware, New Mexico, Nebraska, and Maryland) have dropped laws similar to Florida’s.

Activists are working to undo the ban through a ballot initiative, the Voting Restoration Amendment, which would become law if approved by 60% of voters going to the polls in November 2018. The proposal would automatically restore voting rights to ex-felons who have completed all terms of their sentences, including probation or parole. The measure would not apply to persons convicted of murder or sexual felonies. Those individuals would remain permanently disenfranchised unless both the governor and the state cabinet vote to restore their voting rights.

As state law requires, the Florida Supreme Court held a March 6 hearing to examine whether the wording of the Voting Restoration Amendment complies with the standards ballot initiatives must meet in order to go before the voters. The initiative must be clearly worded and address only a single issue. A decision on whether the initiative is properly drawn is expected soon. Supporters were encouraged that Pam Bondi, the state’s Attorney-General, seen as a potential opponent, took no position on the measure during the court hearing.

In 2011, Bondi and Gov. Rick Scott, shortly after taking office, reversed major parts of a broader clemency process adopted by ex-governor Charlie Crist. As amended by Scott and his cabinet, ex-felons have to wait at least five years after finishing their sentences before they can apply to the governor and his cabinet for restoration of their voting rights. Fewer than 2,500 of those requests have been approved during Scott’s time in office, and a backlog of about 10,500 applications awaits action.

If the state Supreme Court clears the new initiative to win a spot on the 2018 ballot, supporters will also have to muster almost 700,000 more signatures from registered state voters – which could be a lengthy and expensive undertaking. A similar effort in 2016 fell far short.

In other action aimed at overturning the Florida lifetime disenfranchisement of felons, on March 13 seven former felons and the nonpartisan Fair Elections Legal Network filed a class-action lawsuit against Gov. Scott and other state officials, attacking the state’s disenfranchisement law as unconstitutional.

The lawsuit argues the state’s mandate on felon disenfranchisement has a disparate impact on racial minorities. It also alleges that the governor, who has the deciding vote in some voting rights restoration cases, has in some cases rejected requests because the applicants have gotten traffic tickets after completing all terms of their sentences. In other instances, applicants complained of being quizzed about whether they were using alcohol or controlled substances.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and




Ignorance, Bureaucracy and Red Tape: U.S. Citizens Mistakenly Deported

immigration United States

By Christopher Zoukis

According to Bryan Cox, a spokesman for Immigration and Customs Enforcement (ICE), “claims of U.S. citizenship of individuals encountered by ICE officers, agents, and attorneys are immediately and carefully investigated and analyzed.” However, the United States has a long history of mistakenly deporting its own citizens; since 2003, more than 20,000 U.S. citizens have been detained or deported by immigration officials. [See: PLN, March 2013, p.40].

Consider the case of Andres Robles Gonzalez, who was deported to Mexico at age 19 despite the fact that he was an American citizen. For over three years he tried to convince authorities of his citizenship. Eventually, the evidence to support his claim was found in an unusual place: the U.S. government’s own records.

Armed with that information, the United States Citizenship and Immigration Services (USCIS) issued Gonzalez a certificate of citizenship. Problem solved? Not quite. Despite acknowledging his citizenship and issuing the certificate, USCIS could not provide that evidence to Gonzalez because he had already been deported.

Jonathan Crawford, the New Orleans-based field director for USCIS, nicely summed up this Catch-22 when he told Gonzalez, “Your N-600 Application for a Certificate of Citizenship was approved on June 15, 20011 [sic]. You derive [sic] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States. However, since you were deported from the United States, we are unable to complete the N-600 application process and provide you with a certificate of citizenship.”

Helpfully, Crawford advised Gonzalez to report to a USCIS office for assistance in obtaining his certificate once he returned to the United States. But the red tape was just too thick. A vice counsel in the U.S. Department of State refused to provide Gonzalez with a passport because “[i]t does not appear that you have a claim to U.S. citizenship.” Thus, Gonzalez could not return to the U.S. to obtain proof of his citizenship since he could not secure a U.S. passport – because he lacked proof he was an American citizen.

Fortunately for Gonzalez, attorneys were able to circumnavigate the system and finally establish his citizenship. But had he been indigent and unable to access competent legal help, he could have been deported permanently.

This exposes a major flaw in the immigration system: people do not have the right to an attorney, which disproportionately affects indigent people because they lack sufficient legal representation to help them prove their U.S. citizenship. Gonzalez eventually sued the federal government, discovering during the litigation that ICE was aware of its mistakes yet failed to correct them. The United States agreed to update its records pertaining to Gonzalez’s citizenship and paid him $350,000 in damages in May 2015. See: Gonzalez v. United States, U.S.D.C. (E.D. La.), Case No. 2:14-cv-00696-CJB-JCW.

Immigration and deportation issues are doubly problematic for the incarcerated and those with a criminal record. For example, Lorenzo Palma, 39, was not released from prison after he finished serving his five-and-half-year sentence in Texas for aggravated assault. ICE ordered prison officials to hold him for another year, then he was transferred to an immigration detention center where he was held for six months. Although he was a naturalized U.S. citizen, Palma feared being deported to Mexico because his younger brother, a U.S. citizen, had previously been erroneously deported. Palma was fortunate in that the U.S. government eventually acknowledged his citizenship status in January 2016 and he was released.

Similarly, soon after President Trump’s inauguration in January 2017, a nationwide immigration enforcement operation ensued. Elizabeth Hernandez-Carrillo, a 46-year-old mother of four, was arrested in her home during a raid and detained for a month. She noted that the detention center held her in a “small cell infested with cockroaches [where she] got dehydrated, contracted a bladder infection and desperately missed her family.” Hernandez-Carrillo was a U.S. citizen; she had previously returned to the U.S. after “being deported to Mexico in 2004 following a felony marijuana trafficking conviction,” despite her efforts to inform ICE of her U.S. citizenship status. Her case highlighted the complexity, especially under the current presidential administration and its new policies, of proving one’s citizenship status.

Jacqueline Stevens, a professor in the Department of Political Science at Northwestern University and director of the school’s Deportation Research Clinic, noted in a 2011 report that “the deportation laws and regulations in place since the late 1980s have been mandating detention and deportation for hundreds of thousands of incarcerated people each year without attorneys or, in many cases, administrative hearings. It would be truly shocking if this did not result in the deportation of U.S. citizens.” After filing a Freedom of Information Act request, Stevens exposed records from U.S. immigration courts that indicated the adjournment of 256 cases between January 2011 and September 2014 was due to the high volume of findings “that the presumed ‘aliens’ were actually U.S. citizens.”

Navigating the waters of our nation’s immigration system can be treacherous as errors are surprisingly common. According to Stevens, the possibility of mistakes is high because “[u]nless you have an unusually thorough immigration judge, which is very rare, or an attorney, you can be a U.S. citizen and not even know you’re a U.S. citizen, and abandon claims to be in the United States.” There is no single method to verify citizenship, and the process to prove one’s citizenship status is often complicated by the “constantly evolving laws that determine an individual’s eligibility,” Stevens said.

The complex process to validate citizenship status has had significant repercussions for U.S. citizens who are incorrectly detained or deported due to errors by government officials. One of the more notorious errors occurred in 2011, when U.S. Customs and Border Protection detained a four-year-old girl for 20 hours in a cell without bedding at Dulles Airport in Virginia, then deported her to Guatemala. Although her parents hired an attorney and their daughter was returned to the United States within three weeks, the four-year-old began to show stress-related symptoms. “She began to overeat, throw tantrums, and soil her pants during the day,” according to a lawsuit filed by her parents. “She hid whenever people knocked on the door, she refused to let go of her father’s hand, and she became frightened whenever the lights were off at night.” The federal government agreed to settle the case for $32,500 in June 2015. See: Ruiz v. United States, U.S.D.C. (E.D. Vir.), Case No. 1:14-cv-01246-GBL-JFA.

However, monetary damages cannot make up for what the family went through due to the wrongful deportation – which, sadly, was one of many due to the incompetence of immigration authorities. 

Sources:,,,, USA Today,

This article original appeared in Prison Legal News on April 3, 2017.

Video Calling Services vs. In-person Visitation

prison visitation

By Christopher Zoukis

Video calling* is gaining a significant foothold in local jails. The technology is seen both as less costly than in-person visitation and a potential profit generator for jailers. But it can also have a detrimental impact on prisoners’ ability to communicate with their families; nevertheless, for-profit companies are rolling out video calling services as fast as they can. [See: PLN, Nov. 2014, p.48; March 2014, p.50; Sept. 2012, p.42; Jan. 2010, p.22]

Often, when a jail contracts with a video calling provider, such as Securus Technologies, all in-person visitation is banned. [See: PLN, July 2013, p.44]. For example, in Maine’s Cheshire County and York County jails, as well as the Two Bridges Regional Jail in Wiscasset, in-person visits were banned after video calling services were implemented. Richard Van Winkler, superintendent of the Cheshire County jail, defended the move – which will earn his facility 20 cents of every $1 charged by Securus when prisoners’ families pay for video calls.

“When one violates the law and one has to serve time in a public institution, one of the liberties that one could lose is the opportunity to hug a loved one,” he said. “And you know what? That’s a difficult sanction. That’s hard time.”

According to a 2015 report from the Prison Policy Initiative, 13 percent of local jails – around 500 in 43 states – have implemented video calling, with 74 percent also banning in-person visitation. Costs to install the video system may be borne by the sheriff’s office, which then receives a portion of the fees paid by visitors who use the service.

Jail officials in Spartanburg County, South Carolina emphasized the benefits from eliminating the need to escort prisoners to in-person visits and monitor the visitation area. Before switching to video calling in March 2017, jail director Major Allen Freeman said such concerns made the prior visitation system “a logistical nightmare.”

But experts question whether prisoners should lose the ability to have in-person visits altogether. In a letter to the California Board of State and Community Corrections, a coalition comprised of the ACLU, Prison Law Office, Legal Services for Prisoners with Children and Center on Juvenile and Criminal Justice said that in-person visits result in fewer disciplinary problems among prisoners and lower recidivism rates.

Some corrections officials agree that in-person visitation is a better option, at least with respect to prison discipline – in part because it’s a privilege that can be taken away as a sanction for misbehavior.

“When [prisoners] have that contact with the outside family, they actually behave better here at the facility,” said one Indiana prison official quoted in the Prison Policy Initiative report.

However, marketing pitches from companies like Securus to cash-strapped municipalities highlight cost savings and the potential to limit the introduction of contraband into jails. Those benefits may be illusory, though. In Travis County, Texas, a report published in October 2014 by the Texas Criminal Justice Coalition found that the amount of contraband actually increased after the introduction of video-only visitation. So did disciplinary problems and prisoner violence.

Some states are taking steps to curb the introduction of video calling. In Texas, a law passed in May 2015 requires county jails to offer prisoners two 20-minute, in-person visits per month. State Senator John Whitmire, the Houston Democrat who sponsored the bill, didn’t cite research linking in-person visitation with fewer problems and better outcomes for prisoners and their families. Instead he alluded to a moral imperative.

“I just think there’s something inherently wrong with not allowing a father to see his family or a mother to talk to her husband or son,” he said. “How do you keep an individual from seeing his family? As another human, how do you do that?”

Nationwide an estimated 2.7 million children have an incarcerated parent, but 5 million children will experience parental incarceration at some point during their childhood. [See: PLN, Feb. 2017, p.28]. African-American children are over seven times more likely than their white peers to have a parent in prison or jail, while Latino children are twice as likely.

“Visits are not a privilege or a reward for good behavior; they are a right,” asserted Tanya Krupat, program director at the Osborne Association, a New York-based non-profit that sponsors programs for children with incarcerated parents as part of its criminal justice reform efforts.

New York officials have insisted they view video calling as a way to supplement in-person visits, not replace them. Governor Andrew Cuomo recently restricted in-person visitation at state prisons to weekends, but a spokesman noted that the cost savings will allow for expanded video calling while also preserving the most popular times for families to visit, especially those that have to travel long distances.

Yet with research indicating that maintaining contact helps both children and their incarcerated parents – the child fares better during the parent’s absence and the parent enjoys a smoother re-entry to the community after release – other public officials want to encourage and expand in-person contact.

In New York, the Proximity Bill, introduced in March 2016, would create a pilot program requiring the Department of Corrections and Community Supervision to take proximity to family members into account when assigning prisoners to state facilities. The bill is sponsored by state Senator Gustavo Rivera, a member of the Crime Victims, Crime and Correction Committee, who was influenced by children he encountered through the Osborne Association.

“Children tell us all the time: Nothing replaces that quality in-person time,” said Krupat.

The Pennington County jail in Rapid City, South Dakota is one place where the introduction of video calling earlier this year was accompanied by an increase in the availability of in-person visitation.

“Anytime an inmate can be involved with his family, can spend time with them ... it improves their behavior in the facility,” explained Jail Captain Brooke Haga.

Back in Maine, the Somerset County jail was able to contract for video calling services from Securus without foregoing in-person visitation. But the overall trend points to increased video calling access and decreased in-person visits for prisoners.

California has gone further than Texas in limiting the use of video-only visitation in county jails. The Board of State and Community Corrections voted in February 2017 in favor of requiring future county jails to include space for in-person visits; the new regulation also prohibits sheriffs from adopting any policy that bans in-person visitation. Board chairwoman Linda Penner cited the growth of video calling as the basis for the rule.

“The use of video has become more widespread,” she said. “The regulation today really draws a line in the sand.”

But state Senator Nancy Skinner said the new regulations don’t go far enough.

“Why ... would we create a circumstance where [prisoners’] families cannot visit them?” she asked, adding that “video visitation is not the same as a family visit.”

U.S. Senator Tammy Duckworth, a Democrat from Illinois, agreed. While serving in the House last year she introduced H.R. 6441, the Video Visitation in Prisons Act, which would require the Federal Communications Commission to ensure that correctional facilities with video calling services do not ban in-person visits. The legislation would also limit the fees for video calls and impose other restrictions. An online petition in support of the bill is available at:

Prison Legal News supports the use of video calling at prisons and jails only if it is provided at no cost and is used to supplement, not replace, in-person visitation. 

* PLN refers to video visits as “video calling,” as they are not comparable to in-person visitation and are more like a video phone call.

Sources: Associated Press,,,,,,,,

This article original appeared in Prison Legal News on March 31, 2017.

Privately-run Montana Jail Remains Mostly Empty Since 2007

By Christopher Zoukis

In an odd twist in this age of prison and jail overcrowding, the Two Rivers Regional Detention Facility (TRRDF) in Hardin, Montana has had an awfully difficult time finding prisoners to fill its beds. Opened in mid-2007 as an intended economic boon for the area, the jail, which is overseen by the Two Rivers Authority (TRA), the economic development arm of the City of Hardin, has not been able to obtain enough contracts to cover interest payments on bonds used to build the $27 million facility, much less break even or generate profit. As PLN has repeatedly reported over the years, this has left city officials scrambling to locate prisoners for almost a decade. [See: PLN, Aug. 2013, p.42; March 2011, p.34; Dec. 2009, p.1].

The situation is dire for Hardin. The facility sat vacant for seven years until TRA entered into a contract with Louisiana-based Emerald Correctional Management to operate the jail in
May 2014.

Under Emerald, TRRDF, which has a capacity of 464 beds, housed just 250 prisoners under a contract with the U.S. Bureau of Indian Affairs (BIA). Until November 1, 2015, it only housed Native American detainees.

That contract, the facility’s largest since it opened, was canceled on October 31, 2015 due to BIA budgetary restraints. Through early 2016, TRRDF and Emerald limped along with a small number of prisoners (around twenty or less) imported from nearby jurisdictions, such as Williams County, North Dakota.

Emerald, which had been pursuing a renegotiation of the BIA contract, suspended its operations at TRRDF in April 2016, and by September had withdrawn from involvement with the facility.

The average TRRDF population during 2015 was just 150. Between 200 and 250 prisoners are needed to fulfill the TRA’s interest payments on municipal bonds issued for the jail’s construction (bonds that have been in default since 2008), and a minimum population of 350 is needed to generate profit. While the BIA paid Hardin $76 per detainee per day, that didn’t make much of a dent in the jail’s debt. As a result of interest payments, which the city had been largely unable to make, the $27 million facility now costs around $40 million.

While the BIA contract was not renewed, TRA executive director Jeffrey S. McDowell, who has been paid “on a limited basis” since March 2015, was optimistic. He explained, “We could fill that place tomorrow if Yellowstone County, for example, sent their excess inmates over.”

According to McDowell, the TRA has been in discussions with a number of neighboring counties and state prison systems in an effort to secure contracts. Thus far he has been largely unsuccessful. Issues related to TRRDF’s construction, proximity to other communities and even potential legal hurdles to housing prisoners from other jurisdictions have dogged the facility since it first opened.

In early 2016, as TRA and Emerald were seeking prisoners to fill the empty Hardin jail, overtures were made to neighboring Yellowstone County, Montana. At that time, the Yellowstone County Detention Facility, operated by the county’s sheriff’s office, was holding roughly 500 prisoners despite having a maximum capacity of 286.

TRA and Emerald proposed that Yellowstone County could send its overflow prisoners to TRRDF at a rate of $68 per prisoner per day. Nevertheless, Yellowstone County Sheriff Mike Linder, who had toured the Hardin facility, expressed opposition to the proposal, citing inadequate daylight in the jail and other problems related to indirect supervision of prisoners. Further, he noted that housing prisoners at TRRDF, even at $60 per day, would cost Yellowstone County $2.2 million per year. As those costs would accumulate to $11 million over the first five years, Linder recommended that the county invest in expanding its own jail infrastructure rather than exporting prisoners.

As such, the Yellowstone County deal never materialized. And following the departure of Emerald Correctional Management, TRRDF again sits empty on the plains outlying Hardin – a failed moneymaking scheme that, thus far, has only resulted in increasing debts. 


This article original appeared in Prison Legal News on March 31, 2017.

Bureau of Prisons Seeks Ways to Block Contraband Cellphone Use

Cell phones are the type of contraband most commonly found in federal prisons. The Bureau of Prisons is seeking ways to block contraband devices without interfering with authorized phones.

Cell phones are the type of contraband most commonly found in federal prisons. The Bureau of Prisons is seeking ways to block contraband devices without interfering with authorized phones.

By Christopher Zoukis

Although a federal statute (the Contraband Cell Phone Act of 2010) forbids federal inmates to possess cell phones or other wireless communications devices, cell phones are in fact the type of contraband most commonly found in federal prisons. In one three-year stretch, between fiscal years 2012 and 2014, more than 8,700 cellphones were recovered from federal prison facilities.

According to a Justice Department report last year that unfavorably compared private prisons under contract to the Federal Bureau of Prisons (BOP) to federally-run facilities, eight times as many contraband cellphones were confiscated in a sample of privately-run federal prisons than in a comparable group of facilities run by the federal government.

BOP is seeking to prevent contraband cellphones from being used by federal prison inmates for unmonitored communications with non-incarcerated accomplices – whether to plot escapes or pose other security risks, carry out schemes to eliminate or intimidate potential witnesses against them, or even to plan and carry out new crimes – and is studying whether there is a workable way to create a blackout-zone around prison grounds. It envisages devising a system capable of blocking use of contraband phones or other communications devices without interfering with authorized phones.

In less than a year and a half, the agency has twice sent out a “Request for Information” inviting comment from current or would-be contractors on ways that active or passive systems can achieve that goal, and extended last year’s Jan. 29 deadline for receipt of comment until March 30 this year. The purpose of the notice, according to the BOP, is to acquire data on available products to help in the development of specifications for products and systems capable of detecting and blocking use of contraband wireless communications devices.

Federal communications law forbids broad-scale communications jamming, so BOP needs some other solution for finding and blocking unauthorized signals. The agency’s information request tells vendors who offer solutions in which jamming plays a part that they must also explain how their proposal would be legal in this country.

According to the criteria spelled out in the information request, BOP is seeking data on solutions or equipment that can detect the largest possible number of frequencies, provide a detailed analysis of how the contraband equipment is working, identify its network and physical location, record and store the device’s history, distinguish authorized from unauthorized equipment while blocking only the unauthorized, and not impact service to members of the public who reside outside the facility or collect information on them.

In addition, the agency says it’s looking for “ruggedized” equipment that will stand up to environmental forces and will be either tamper-proof or tamper-resistant. BOP also says potential suppliers should provide detailed descriptions of how their solutions work, including all hardware, software and peripherals. The notice warns that applications that merely claim compatibility with the agency’s requirements but fail to provide required details will be regarded as failing to give a responsive answer.

In the notice, BOP makes clear it wants solutions suitable for all BOP settings, whether rural, suburban or urban, and is only interested in solutions that are available as non-custom commercial products, noting the agency does not bankroll research and development of technological products. 

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

High Court Splits on Whether Juror’s Racial Bias Merits New Trial

Evidence that a juror made racially biased remarks during jury deliberations in a trial moved the Supreme Court to rule that in some cases, court review of jury deliberations may be warranted.

Evidence that a juror made racially biased remarks during jury deliberations in a trial moved the Supreme Court to rule that in some cases, court review of jury deliberations may be warranted.

By Christopher Zoukis

Dividing sharply by a 5-3 margin the U.S. Supreme Court issued a major new ruling March 6th that evidence of racial bias affecting a jury verdict may in some cases overcome longstanding rules shielding jury deliberations from court review.

In Peña-Rodriguez v. Colorado, Miguel Peña-Rodriguez had been convicted of sex offenses against two teenage girls, and unsuccessfully sought to persuade a Colorado trial court to give him a new trial, citing evidence from two jurors that another juror had made anti-Hispanic remarks about the defendant and a defense witness during jury deliberations.

The state court refused to overturn the verdict based on state evidence rules generally barring evidence of jury-room deliberations. But the Supreme Court, in a decision written by Justice Anthony Kennedy and joined by four liberal justices (Breyer, Ginsberg, Kagan and Sotomayor), reversed and sent the case back to the state court to reconsider the case in light of the testimony of the two jurors, who reported racially charged remarks.

Kennedy’s opinion began by noting traditional rules adopted by state and federal courts to prevent second-guessing of jury deliberations, but for the first time ruled that the court’s “imperative to purge racial prejudice” from the administration of justice might require creating an exception to the general rule against court review of how the jury reached its verdict.

In this case, lawyers for Peña-Rodriguez had obtained statements from two jurors that another juror, a former law enforcement officer, had voiced the view that Mexican men were almost always “guilty of being aggressive toward women and young girls” and believed “they could do whatever they wanted with women.”

Calling those statements “egregious” and “unmistakable in their reliance on racial bias,” Kennedy’s opinion said the trial court should have weighed whether the statements had violated the defendant’s Sixth Amendment right to a fair trial. If so, a juror’s racist comments could justify overturning a verdict and ordering a new trial.

But three justices strongly dissented. A opinion written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Clarence Thomas called the majority opinion “well-intentioned,” but argued that opening up jury deliberations to later attack would create serious problems, including making jurors more guarded and less honest in their deliberations, subjecting jurors to harassment by convicted defendants seeking evidence of prejudice to support appeals, and making citizens less willing to serve on juries. Alito’s dissent charged the court’s majority “barely bothers” to address those serious policy issues.

The court’s majority opinion did not decide that Peña-Rodriguez will get a new trial, or even spell out in detail how the trial court should go about making that determination, beyond saying the trial judge should investigate, question the former jurors, and then decide whether a new trial is needed.

In fact, the majority opinion cautioned not every “offhand comment indicating racial bias or hostility” would justify overturning a verdict and ordering a new trial. Instead, to reach those results, the trial court must find the statements of at least one juror during deliberations showed overt racial bias that seriously called into doubt the fairness and impartiality of the jury’s deliberations by showing racial bias “was a significant motivating factor” of the conviction.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

Female Inmates Sue over BOP Guidelines for Transgender Males

Three female inmates have sued to block BOP transgender policies under Obama from being applied at their Texas incarceration site.  

Three female inmates have sued to block BOP transgender policies under Obama from being applied at their Texas incarceration site.


By Christopher Zoukis

Three female inmates in a federal prison in Texas have gone to court in an attempt to block a Bureau of Prisons (BOP) policy that requires them to share bathrooms and showers with inmates who identify as transgender females but are biologically male.

On Feb. 15th, inmates Rhonda Fleming, Jeanette Driever, and Charlsa Little sued to block the BOP policy from being applied at the Federal Medical Center Carswell, a medical facility and camp located at the Fort Worth naval air station.

Months earlier, the plaintiffs had attempted but failed to persuade a federal judge in Fort Worth to expand a temporary injunction to include their incarceration site. The temporary injunction blocked an Obama administration directive giving bathroom access to public school students based on their gender identity.

On March 14, the Texas Senate approved the transgender bathroom bill that would, among other things, impose escalating fines on schools or governments that allow transgender people to use bathrooms that conform with their gender identities. A vote on the bill takes place March 15.

The inmates’ lawsuit claims the current policy forces them to live in a dangerous and degrading environment and share intimate facilities “with men who allege they are women,” but who "openly express their sexual desire” for the female inmates in settings where they are only partially clothed or naked. They also allege transgender men intentionally exposure themselves to the female inmates.

Their lawsuit also claims that one male transgender inmate, who was 6’5” and weighed over 200, was assigned to the Special Housing Unit (SHU) of the facility and warned officials there not to assign him to share a cell with a certain female inmate, since if they did, “he would rape her.” Female inmates with SHU assignments, the lawsuit argued, would be “subject to government-sanctioned rape.”

The BOP's 15-page “Transgender Offender Manual,” issued in mid-January, provides staff with guidance for dealing with “unique issues that arise when working with transgender inmates,” and states the views of transgender or intersex inmates as to their own personal safety “must be given serious consideration.” It also advises that transgender inmates must be allowed to shower separately from other inmates if they so desire. But the manual also advises that housing assignments for transgender or intersex inmates must consider case-by-case the inmate’s health and safety and potential security or management problems.

The Trump administration has already revoked earlier guidance from the Department of Education on transgender students’ access to bathrooms and similar facilities, so the BOP policy could also be revised in the future. But if that doesn’t happen, the female inmates from Fort Worth could face serious difficulties prevailing in their lawsuit, which is before the same judge who granted the injunction against the DOE policy.

In the first place, the three inmates are thus far representing themselves. In addition, the judge hearing their case has already cautioned them, when denying their request to extend his DOE injunction, that challenges to conditions of incarceration first require attempts to win administrative relief from prison officials.

It’s also unlikely to help the case that lead plaintiff Fleming, who’s serving a lengthy sentence as ringleader in a Medicare-Medicaid fraud scheme, has a history of filing unsuccessful lawsuits. In fact, in 2000 a federal appeals court ordered she not be permitted to file in forma pauperis (without paying filing fees, due to indigency) in any federal court, unless able to show she was in imminent danger of serious personal injury.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and


Local Police Department Disbanded in Wake of Speed Trap Embezzlement Scheme

police badge

By Christopher Zoukis

Although the short stretch of I-75 that runs near Arlington Heights, Ohio is toll-free, many unwitting motorists have paid for the privilege of passing through that area. The small village of 800, referred to as a “speed trap” by Hamilton County Prosecutor Joe Deters, had one of the busiest courts in the region – despite being the smallest community – as a result of aggressive ticket-writing by the Arlington Heights Police Department. According to a 2007 report, a whopping 93% of the town’s 3,596 court cases that year stemmed from traffic tickets.

To critics, such practices are a form of revenue-based policing, which often results in divisions between the police and the community they are meant to serve. Such practices came under widespread fire following civil unrest in Ferguson, Missouri throughout 2014.

In March 2015, the U.S. Department of Justice issued a report that examined contributing factors to strained community-police relations in and around Ferguson, concluding that profit motivation on the part of the police and municipal government had indeed been damaging. Those findings led to efforts to reform revenue-based policing throughout Missouri. [See: PLN, Dec. 2016, p.54].

Unfortunately for the residents of Arlington Heights, some of the money extracted from motorists never made it past Deputy Clerk Laura Jarvis and her mother, the town’s former clerk, Donna Covert. In October 2015, state auditors discovered that $260,000 in traffic fines had been stolen by the mother and daughter, who were later prosecuted and convicted of embezzling the funds.

As stated by Deters, “Basically, they were setting up speed traps on I-75 to fund the municipal workings of that village – which they then stole.”

Due to the scandal, the Arlington Heights Police Department was disbanded. On January 1, 2016, a contract went into effect between the town and the Hamilton County Sheriff’s Office, in which sheriff’s deputies will patrol Arlington Heights as well as the adjacent stretch of I-75.

While it seemed the embezzlement scandal had brought to light problems associated with revenue-based policing, in late December 2016 the Ohio General Assembly passed a bill, HB 378, that lifts an existing prohibition on the establishment of speed traps on certain highways by municipal police departments.

As noted by news reports at the time of the bill’s passage, a legislative analysis clearly emphasized the potential revenue to be raised by municipalities as a driving force behind the easing of speed trap restrictions. Municipal lobbyists, on the other hand, were more coy, citing a need for greater public safety in pursuing drunk and otherwise impaired drivers. The law will go into effect on April 6, 2017.

Meanwhile, the town of Arlington Heights appears to be functioning well without a police department. 


This article original appeared in Prison Legal News on March 9, 2017.

Prisoner’s Escape from Illinois Jail Aided by Former Guard, Incompetence

By Christopher Zoukis

prison fence

A convicted murderer’s brazen escape from an Illinois jail was aided by a former guard who provided him with information that “substantially assisted him,” as well as apparent incompetence among jail staff, according to the Kankakee County Sheriff’s Office.

Kamron T. Taylor, 23, made a bid for freedom from the Jerome Combs Detention Center in Kankakee in the early hours of April 1, 2015.

The 5’9”, 170 pound Taylor had overpowered and choked unconscious a 10-year veteran guard with military experience. Wearing the guard’s uniform and using his keys, Taylor passed through at least three sets of doors after camera verification by control room staff. He then used the guard’s key fob to find the guard’s Chevrolet SUV in the parking lot, and drove away with a .38 handgun that had been left in the vehicle.

Taylor was being held at the jail awaiting sentencing after he was found guilty of first-degree murder in February 2015, stemming from a 2013 shooting during a botched robbery.

According to authorities, Taylor’s 3 a.m. escape was assisted by former jailer Tonya D. Grant, 50, who was Taylor’s aunt. Grant was charged with obstruction of justice and aiding in escape; she was accused of providing Taylor with information about jail protocols.

At a news conference after the escape, Kankakee County Sheriff Timothy Bukowski speculated that “someone didn’t do their job properly.” He later admitted that Taylor was able to abscond by hiding in the jail at lockdown and surprising the guard making his rounds hours later. “That’s where the big mistake happened. Someone missed that. And from that point on, things broke down.”

Taylor’s flight from custody ended three days later when he was arrested in Chicago on a “suspicious person” report, and was found carrying a loaded .38 and ID under a false name. Fingerprints and distinctive tattoos led to his identification.

Taylor’s dramatic escape from the jail was not his first attempt. During his trial, he tried to flee the courthouse after the verdict was read, but was wrestled down by deputies and bailiffs. He also escaped briefly following his 2013 arrest, but was recaptured several blocks away. Remarkably, Sheriff Bukowski told reporters that Taylor’s escape history and propensity for violence did not necessarily warrant stricter security measures at the jail.

“It raises an alert, I guess,” Bukowski said, “But you figure the people that are locked up in our facility aren’t altar boys and you take certain precautions for all of them. And you can’t get complacent with anybody ... especially a murderer.”

After he was recaptured, Taylor was sentenced to 107 years in prison in May 2015. Prior to sentencing, prosecutors advised the court that he was also suspected in another Kankakee murder and another robbery. He had not been charged with either of those crimes.

In her sentencing remarks, Kankakee County Circuit Judge Kathy Bradshaw-Elliott addressed Taylor, calling him “extremely dangerous” and beyond reform. “I have to keep the community protected,” she said when committing him to more than a century behind bars.

In December 2015, the obstruction charges filed against Grant were dropped by prosecutors. In a terse statement, Assistant State’s Attorney Ed Pentuic said the state was “unable to prove the allegation and therefore dismissed the case.”

As reported by the Kankakee Daily Journal, Kankakee County Sheriff’s Chief Deputy Ken McCabe stated another individual was set to face discipline related to the escape, but that person had since left the sheriff’s office and taken employment elsewhere.

Meanwhile, Taylor remains incarcerated in an Illinois state prison. His projected parole date is December 25, 2123. 


This article original appeared in Prison Legal News on March 9, 2017.

Peanut Company Executives Appeal Prison Sentences in Rare Corporate Prosecution

peanut corporation of America

By Christopher Zoukis

In Georgia, a state where the death penalty is regularly imposed in cases involving multiple deaths resulting from criminal conduct, executives of the Peanut Corporation of America (PCA) received relatively light federal prison sentences for their roles in corporate criminal malfeasance that resulted in the deaths of nine people. The case underscores the tilt in justice’s scales where wealthy defendants employed by powerful corporations are concerned.

In a 2009 probe, peanut products traced back to a Blakely, Georgia processing plant owned by PCA were identified by the Food and Drug Administration (FDA) as being responsible for a salmonella outbreak that killed nine people and sickened more than 700 others in 2008 and 2009. FDA investigators reported that the outbreak was likely caused by mice droppings in the plant, which was cited for unsanitary conditions.

Georgia prosecutors declined to prosecute PCA executives, instead leaving it to federal authorities to bring charges.

As a result of an ensuing criminal investigation, federal prosecutors asserted that PCA executives falsely certified that the company’s products had been tested for pathogens and were found to be safe. Further allegations included charges that PCA executives knew the peanut products, including peanut butter, had been tainted by salmonella but shipped them anyway.

Mary Wilkerson, who had served as the quality control officer at the Blakely plant, was found guilty of obstruction of justice and sentenced in September 2015 to five years in prison. She was accused of acknowledging in company emails that bacteria found in test samples likely came from mice.

While Wilkerson could have been sentenced to up to ten years for her role in the salmonella outbreak that caused the nine deaths, she remained defiant in an effort to avoid prison time, arguing that, notwithstanding strong evidence that the contamination came from the Blakely plant, the outbreak “could have been” caused by an outbreak at a ConAgra plant the year before. That contention was rejected.

Stewart Parnell, PCA’s former owner and CEO, was convicted of dozens of counts of fraud, conspiracy and related charges. At his September 21, 2015 sentencing hearing, Parnell, who faced a maximum sentence of 803 years before U.S. District Court Judge W. Louis Sands, vigorously protested being held accountable for the deaths attributed to PCA’s misconduct.

Before handing down the sentence, Judge Sands, despite the nine dead victims of salmonella poisoning, reminded those assembled in the courtroom that “this is not a murder case.” Parnell received a 28-year sentence on 67 counts, including obstruction, conspiracy and introduction of adulterated food.

His attorney, Justin Lugar, said he was “disappointed” with the sentence. “We knew there was a high likelihood of an effective life sentence, but we believe it’s an excessive sentence,” Lugar said in a statement to the press.

Stewart Parnell’s brother, Michael Parnell, a peanut broker who facilitated deals between PCA and distributors and manufacturers like Kellogg, received a 20-year prison sentence on 31 counts. The Parnells and Wilkerson were convicted following a jury trial.

Both Stewart and Michael Parnell were ordered into custody at the time of sentencing, as they were deemed flight risks. Stewart was confined at a federal prison in South Carolina, while Michael was sent to a penitentiary in Michigan.

In late November 2016, both Parnells and Wilkerson filed opening briefs in appeals of their convictions; one of their attorneys, Joseph R. Pope, argued that the jury should not have been informed about the nine deaths caused by the salmonella outbreak. The appeals remain pending before the Eleventh Circuit.

While the federal prison sentences imposed on Stewart and Michael Parnell are not insignificant, compare them to the death or life sentences that most non-corporate defendants would receive had they been responsible for killing nine people, even indirectly. 


This article original appeared in Prison Legal News on March 9, 2017.

High Court Rebuffs Inmate’s Challenge to Execution Drug

A death-row inmate's appeal to the Supreme Court on a controversial sedative to be used in his lethal injection was struck down, despite two dissenting justices.

A death-row inmate's appeal to the Supreme Court on a controversial sedative to be used in his lethal injection was struck down, despite two dissenting justices.

By Christopher Zoukis

Despite dissent by two justices, in Arthur v. Dunn, the U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.

Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.

Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.

In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative executionmethod with a significantly lower risk of pain.

Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.

After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.

That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”

Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

Death Row Inmate’s Sentence Appeal Allowed After Expert Testified Race Makes Him More Likely to Offend Again

The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck's trial. 

The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck's trial. 

By Christopher Zoukis

The U.S. Supreme Court decided Texas inmate Duane Buck can keep arguing for a new hearing on his death sentence, because at his original sentence hearing, a psychologist testified Buck, as an African-American, was more likely to commit a future violent crime.

At that time, Texas death sentence law required a jury to find that a convict posed a likely future danger to the community. At Buck’s hearing, an expert witness, psychologist Dr. Walter Quijano, opined there was only a “low” likelihood Buck would commit further violence if given a life sentence rather than executed, but added that statistics showed Buck’s race “increased the probability” he would commit another violent crime. Buck didn’t challenge the verdict, but attacked the sentence as tainted by the racial comments.

Defending the sentence, Texas argued that the facts of Buck’s case made it less likely racially-charged testimony would prejudice the case, as his crimes were particularly “horrific” (the 1995 double murder of his former girlfriend, gunned down in front of her young children, and her new boyfriend, plus the nonlethal shooting of his own stepsister).

The state also argued it couldn’t be blamed, since Buck’s own lawyer had offered the psychologist as a witness at the sentencing hearing. Besides, it was too late to raise the issue of ineffective counsel, which Buck’s lawyer hadn’t raised in the first post-conviction appeal.

Writing for a six-member majority in the Feb. 22 decision in Buck v. Davis, Chief Justice John Roberts found Buck entitled to have a lower court review the sentence, because he had shown ineffectiveness of counsel; Texas had already admitted error in allowing Dr. Quijano’s testimony about six other defendants, and given them new sentencing hearings, but refused to do so for Buck.

Roberts’ decision swept away the state’s objections, reversing prior decisions by a federal district court and a federal appeals court on numerous issues: what constitutes ineffective representation by counsel, the standard of review for challenging an earlier sentencing decision, and how an inmate can show “extraordinary circumstances” needed to challenge a sentence belatedly.

What mattered, in Roberts’ view, wasn’t which side introduced Quijano’s testimony, but the likelihood it could have affected one or more jurors’ views on the key issue of whether Buck would reoffend. His ruling gives Buck a renewed chance to try to persuade the lower court (which earlier rejected his appeal) to reopen the sentencing hearing.

In a harsh dissent, Justices Clarence Thomas and Samuel Alito said the majority opinion “bulldozes procedural obstacles and misapplies settled law” to justify the desired result, but takes comfort that the new decision, due to “highly unusual” facts, is likely to have scant precedential value.

It’s not the Court’s first set-to on Buck’s case. In 2011, in Buck v. Thaler, the high court passed up an earlier chance to hear a review petition from Buck, when four justices couldn’t be mustered to vote to take the case. Then, in unusual actions, Justices Sotomayor and Kagan issued a dissent from the decision not to hear the case, and Justices Alito, Scalia and Breyer published an explanation why they voted against hearing the case — saying Buck couldn’t challenge statements by his own witness and they agreed with lower court decisions.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and

High Court to Weigh If Withheld Evidence Undoes Old Convictions

The Supreme Court will review the convictions of seven people in a 1984 murder case based on evidence withheld from defense lawyers during trial.

The Supreme Court will review the convictions of seven people in a 1984 murder case based on evidence withheld from defense lawyers during trial.

By Christopher Zoukis

After the District of Columbia’s highest local court declined to act on the issue, the U.S. Supreme Court has agreed to review two cases challenging the convictions of seven young people in a horrific 1984 murder case, because prosecutors withheld evidence from defense lawyers that pointed to other suspects, or weakened government witnesses’ testimony.

The Supreme Court will take up Turner v. United States and Overton v. United States March 29. The appeals hold the potential to revamp standards for how courts should decide whether prosecutors’ failure to disclose exculpatory evidence to defense counsel, as required by the high court’s landmark 1963 decision in Brady v. Maryland, forces convictions to be reversed.

On Oct. 1, 1984, Catherine Fuller, a 48-year-old cleaning woman and mother of six, had started walking from her home in northeast Washington, D.C. to a local store when she came across a group of youths hanging out in a nearby park. A few hours later her body was found in an alley; she had been dragged into a garage, robbed, brutally beaten, stripped and sodomized with a metal pole.

Investigating the high-profile murder, DC police questioned hundreds of witnesses and eventually focused on a then-little known local gang, the Eighth and H Crew. After arresting 17 individuals, prosecutors eventually charged a dozen defendants, including one woman, with the robbery, assault and murder.

In a six-week trial late in 1985, two defendants turned state’s evidence, got deals on lesser charges, and implicated the others. The lone woman and another defendant were acquitted, but the remaining eight defendants were convicted and given lengthy sentences. One died in prison, another was released in 2010, but six are still behind bars. All have consistently denied being involved in the crime.

Seeking to overturn their convictions, the appellants point to several issues. The two defendants who accused them have since recanted, claiming they were pressured by police and provided information on the case for their statements. Appellants also claim prosecutors violated the Brady decision by failing to share with defense lawyers statements from witnesses about other suspicious actions people observed in the area about the time Catherine Fuller was attacked, or who had told others they took part in the attack.

Specifically, they noted that, besides various statements that could have undercut prosecution witnesses, prosecutors failed to disclose evidence on two alternative suspects who were in the neighborhood at the time and had records of violent robberies of middle-aged women.

In 2015, the D.C. Court of Appeals heard those arguments but decided there was “overwhelming” evidence for the defendants’ guilt and said their co-defendants’ recanting of accusations against them was “not worthy of belief.” To have their convictions overturned, the DC appeals court concluded, defendants would have to show there was a “reasonable probability” they would not have been convicted if their defense team had been given the withheld evidence.

The Supreme Court took the case to examine whether D.C. used the correct standard for determining when Brady violations require overturning convictions. The case has attracted considerable interest from both prosecutors and defense lawyer groups, due to the potentially far-reaching consequences of a change in the standard of review of Brady violations.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and


FCC Stops Defending Prison Phone Rate Cap Rules

The FCC is no longer defending the phone cap rates it pushed for in 2015 to prevent exorbitant rates for inmate phone calls. 

The FCC is no longer defending the phone cap rates it pushed for in 2015 to prevent exorbitant rates for inmate phone calls. 

By Christopher Zoukis

Following a change in its makeup, the Federal Communications Commission (FCC) has reversed its position on rate-cap rules for many inmate calling services which the agency adopted – by a narrow 3-2 party-line vote in October 2015.

Those rules have not yet taken effect, due to legal challenges pending before a federal appeals court in Washington, DC, and the FCC has served notice with the court that it will no longer defend key parts of those rules.

Until late January, the FCC and the Department of Justice had defended the rules against six pending lawsuits brought by inmate phone services providers, nine states, and two groups of state and local corrections officials— about the same number of states supported the rules, however. Opponents argued the FCC exceeded its authority in several ways: by extending rules already in effect for interstate calls to also cover intrastate calls (which make up about 80 percent of inmate calls), and by setting rates too low for providers to make a profit.

The FCC’s regulatory and litigation battles over capping prison and jail phone charges have been going on for years. In 2013, responding to a citizen petition, the agency placed interim caps on interstate calls (21¢ per minute for interstate calls and 25¢ per minute for collect interstate calls). At the same time, the FCC also began a rulemaking proceeding to look at curbs on charges for other services. In 2015, the agency lowered the per-minute rate for interstate phone calls to prisons to 11¢, with per-minute rates for jails ranging between 13¢ and 22¢, depending on size.

Besides attacking the coverage of intrastate calls as beyond the FCC’s lawful powers, some opponents of the rules, including major providers of inmate calling services, such as Securus Technologies and Global Tel Link , contended the agency’s method for calculating rates wrongly put them below their costs, especially since the FCC formula fails to take into account the sizable commission payments required by contracts with some state and local facilities – which some cap backers call “kickbacks.” Some sheriffs warned moving against those payments would lead them to drop prisoner phone services.

By late January, two FCC backers of the rule, both Democrats, had left the agency. The former agency head resigned and the term of another member expired. The Trump administration promptly filled the vacant chairmanship with a Republican already in the commission, Ajit Pai, an outspoken advocate of deregulation and a harsh critic of the prison phone rate caps, who noted the federal appeals court has acted to freeze the agency’s actions on prison rate caps four times.

Within days, the new chairman notified the court considering the challenges to the rate cap rules that the FCC would no longer defend major parts of the rules. The Department of Justice soon said it would follow the FCC’s lead.

At a Feb. 6 hearing before a three-judge panel of the appeals court, the remaining Democratic FCC member filed a written statement stressing the importance of phone calls to those incarcerated and their families, and the FCC had turned over part of its scheduled time to a lawyer representing advocates of prison rate caps. 

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and