News

Amount of Drugs a Factor for Departure Sentence

The Kansas Supreme Court reversed a prisoner’s sentence for possession of contraband – a small amount of marijuana – after it held the sentencing court misinterpreted its statutory authority by concluding it could not consider a downward departure to the presumptive criminal sentence. Prisoner Waddell Warren was convicted of introducing a controlled substance into a

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California: Lack of Insight Cannot Be Inferred

By Michael Brodheim In the wake of the California Supreme Court’s ruling in In Re Shaputis, 53 Cal. 4th 192 (Cal. 2011) [PLN, Aug. 2012, p.16], lower courts in California continue to struggle with the issue of whether a denial of parole predicated on “lack of insight” is supported, in any given case, by the

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Ninth Circuit: Heck Allows Section 1983 Parole Condition Challenges

By Mark Wilson On July 31, 2013, the Ninth Circuit Court of Appeals joined the Seventh Circuit in holding that the Heck doctrine does not bar all parole condition challenges brought under 42 U.S.C. § 1983. California’s Sexual Predator Punishment and Control Act of 2006 – also known as Jessica’s Law or Proposition 83 –

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Flimsy Reasons for Prolonged Lockdowns

The Seventh Circuit Court of Appeals has held that an Illinois prisoner’s complaint that frequent lockdowns for substantial periods of time deprived him of exercise and caused him various health problems stated an Eighth Amendment claim. However, the Court found that he failed to state a due process claim concerning the loss of his monthly

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Racial Justice Act

In June 2013, North Carolina Governor Pat McCrory signed legislation repealing the state’s Racial Justice Act of 2009 (the Act), a controversial law that supporters said was an effort to address racism in death penalty cases. Opponents, however, argued it merely clogged the legal system and denied justice to victims of the state’s 154 prisoners

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Judge May Resolve Exhaustion Issue

By David Reutter The Third Circuit Court of Appeals held on August 26, 2013 that a judge may resolve factual disputes relevant to the exhaustion of administrative remedies without the participation of a jury. It also held the district court had erred in finding a failure to exhaust where a prisoner did not receive a

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Jury’s Tasteless Gag Gifts to Judge and Bailiff Fail to Demonstrate Unfair Trial

By Prison Legal News

The Eleventh Circuit Court of Appeals has affirmed the denial of a death row prisoner’s habeas corpus petition that contended he was denied a fair trial by an impartial judge and jury because the jurors gave inappropriate gag gifts to the judge and one of the bailiffs.

The habeas proceeding involved Georgia death row prisoner Marcus A. Wellons, who was convicted of the murder and rape of a fourteen-year-old girl in 1989. During his trial, Wellons did not dispute that he had killed and raped the victim; rather, he claimed he was either not guilty by reason of insanity or guilty but mentally ill. After finding him guilty, the jury recommended a sentence of death for the murder and life for the rape.

Defense counsel learned during post-trial interviews that some jurors gave gag gifts to the judge and a bailiff either near the end of or immediately following the penalty phase of the trial. The judge received chocolate candy in the shape of a penis while the bailiff received chocolate in the shape of female breasts. Wellons’ counsel also learned that when the sequestered jurors dined at a local restaurant, the judge had spoken to them.

Motions for a new trial and for recusal of the judge were denied, Wellons’ convictions were affirmed on appeal and the Supreme Court denied review. Likewise, a state habeas petition was denied. After the federal district court denied Wellons’ habeas petition, the Eleventh Circuit affirmed. This time, however, the Supreme Court granted certiorari and the matter was subsequently remanded for an evidentiary hearing on the “disturbing facts of this case.” The district court again denied relief and Wellons again appealed.

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Ninth Circuit: Damages Required for Compelled Religious-Based Treatment

By Mark Wilson

The Ninth Circuit Court of Appeals has held that damages are required, as a matter of law, when a parolee is incarcerated for objecting to compelled participation in a religious-based drug treatment program.

Citing “uncommonly well-settled case law,” the Court of Appeals found in 2007 that the First Amendment is violated when the state coerces an individual to attend a religious-based substance abuse program. See: Inouyev.Kemna, 504 F.3d 705 (9th Cir. 2007).

The California Department of Corrections and Rehabilitation (CDCR) contracts with Westcare, a private entity, to provide drug and alcohol treatment for parolees in Northern California. Westcare, in turn, contracts with Empire Recovery Center, a non-profit facility. “Empire uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to ‘God’ and to ‘higher power.’”

Barry A. Hazle, Jr., an atheist, was incarcerated due to California drug convictions. His parole conditions required him to complete a 90-day residential drug treatment program.

Prior to his February 26, 2007 release from prison, Hazle had asked prison and Westcare officials to place him in a non-religious treatment program. Westcare officials directed Hazle to Empire.

When Hazle realized Empire was a religious-based program, he repeatedly objected to Westcare officials. They responded “that the only alternative to Empire was a treatment facility whose program had an even greater focus on religion.”

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Ryan Ferguson Released

By Dianne Frazee-Walker

Last Tuesday morning when inmate #1137593 bent down to tie his shoes, he did not know what the rest of the day would bring.

The inmate’s name was Ryan Ferguson.

Ferguson remained neutral with his emotions because had been through the same scenario before. He was holding back from getting his hopes up that this would be the last day he spent behind bars. Ferguson had served ten-years of a 40-year sentence for a murder he claims he did not commit.   

November 12, 2013 turned out to be Ferguson’s lucky day. Just seven-hours later, a composed Ryan Ferguson was surrounded by probing reporters outside the Tiger Hotel in Columba, Missouri. After ten years of being incarcerated for murder, 29-year-old Ryan Ferguson was finally exonerated and set free.

The main question inquiring minds want to know about Ferguson is this:  is he bitter about having a decade of his life snatched away from him? Ferguson was a 20-year-old college student when he was arrested. He spent all of his 20s incarcerated.

Amazingly, Ferguson is more interested in moving forward with his new life on the outside than seeking revenge. He has even forgiven his friend that initially lied about his involvement in the murder. Ryan now wants to start a campaign to free this man.

On Halloween night, 2001, Ferguson and his friend, Charles Erickson went out for a night on the town. They engaged in a night of underage drinking until the bars closed at 1:00am.  According to Ferguson, Erickson dropped him off at home and he went to sleep. During the wee hours of the morning, Kent Heitholt, sports writer for the Columbia Daily Tribune was brutally murdered in the parking lot of his office.  

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Seventh Circuit Retires “De Minimis” Standard for Use of Physical Force

By Prison Legal News

The Seventh Circuit Court of Appeals has reversed a district court’s application of a “de minimis harm” standard in dismissing a Wisconsin detainee’s claim that he was sexually groped.

In April 2008, James Washington, Jr. was a pretrial detainee at a Wisconsin jail when a guard, John P. Hively, allegedly fondled his “testicles and penis through [his] clothing” during a pat down, “then while strip searching him fondled his nude testicles for two or three seconds.” Washington filed a federal lawsuit against Hively, who denied the allegations.

The district court granted Hively’s motion for summary judgment. The court correctly recognized that it could not resolve the factual disputes on summary judgment. However, even presuming “that the defendant grabbed the plaintiff’s genitals in a way that was not related to penological interests,” the district court found Hively was entitled to summary judgment because Washington “presented evidence of only de minimis injury” and had “suffered at most an assault and battery.”

Washington appealed and the Seventh Circuit reversed, finding that “the judge’s references to ‘de minimis injury’ and ‘assault and battery’ inappropriately invoked excessive force cases,” which hold “that ‘de minimis uses of force are non-actionable.’”

The Court of Appeals found that “an unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the ‘force’ exerted by the assailant is significant.”

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