In the 1971 landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics the Supreme Court announced that citizens had the right to sue individual government agents in Federal Court for violations of their Fourth Amendment rights. In Carlson v. Green the Supreme Court extended the rights granted under Bivens to sue Federal custodial agents for violation of the Eighth Amendment right protecting inmates from deliberate indifference to their medical needs.

This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

Joel Rodriguez was arrested on Federal narcotics charges. Shortly after he was arrested and prior to his indictment, while housed in New York City’s Metropolitan Detention Center, he called his sister and asked her to ask their brother to talk to his lawyer to negotiate a pre-indictment deal. The jail taped the conversation, as it does with all inmate calls and gave the tape to the prosecutor who introduced the tape at trial as evidence of his consciousness of guilt.

On appeal Rodriguez challenged the admission of the telephone call on the grounds that 1) it was an attorney-client communication and 2) it was a statement made in plea negotiations.

The Second Circuit confirmed his conviction and upheld the admission of the telephone call. Attorney-client communications are inadmissible if they are: “(1) between a client and his or her attorney (2) . . . intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Conversations with third parties may be inadmissible under the privilege if they are necessary to obtain the confidential advice of an attorney.

The appellate court found that the tape was admissible. Since it was well known that telephones conversations were taped Rodriguez knew that the conversation could not be confidential. Furthermore there was no evidence that Rodriguez could not call the lawyer or that it was necessary to go through his sister to get to the lawyer.

As to statements made during plea bargaining, they are governed by Rule 410 of the Federal Rules of Evidence which only prohibits statements made with opposing counsel and the United States Attorney was not involved in the discussions.

The problem is that attorneys are not easy to get a hold of. Here the matter was urgent in that it needed to be done before the indictment. The attorney may not be in the office. All jail calls have to be collect and if an attorney runs up too many collect calls the phone company terminates further collect calls until the attorney deposits more money in the account. Sometimes there is a language barrier to direct conversations with the lawyer. For any number of reasons it may be easier and more convenient to go through a third party and the admission of these third party calls at trial can be very harmful. More importantly what about direct calls to the attorney. They are still taped. Jails are supposed to have special lines that are not taped for use in calls to the attorney. But access to these lines is often dependent upon the convenience or availability of a guard to provide access and this is often difficult to obtain.

But more importantly, the message to be learned from Rodriguez is that inmates must be very careful what they say to other inmates, in telephone calls, and during visitation. There is a very significant risk in saying anything about their case except in conversations with their lawyer and preferably these conversations should be in person.

Former Lucerne County, Pennsylvania Juvenile Judge Mark Ciavarella Jr. was sentenced to 28 years in Federal prison for excepting bribes from a company that builds private jails in exchange for sending children to the company’s facilities in the “Kids for Cash” scandal. He received a million dollar from the companies building the private jails and he attempted to extort money from the owner of the jails. A colleague on the bench, Michael Conahan, who is yet to be sentenced on related charges, received another million dollars.

In his rush to send juveniles to the private prisons he often denied juveniles their basic constitutional rights. He did not offer them appointed counsel and he demanded statements from them in violation of their right to remain silent. A fifteen year old girl was sentenced to three months for mocking the assistant principal of her school on her MySpace page and a 13 year old boy was locked up for trespassing in a vacant building. As a result the Pennsylvania Supreme Court reversed over 4000 convictions

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.

Casey Anthony has sure done a good job of convicting herself.

The Supreme Court affirmed a decision of a special three judge district court finding that California State prisons are overcrowded to the point where they violate the Eighth amendment right against cruel and unusual punishment in that they are unable to provide decent medical and psychiatric care to inmates. Furthermore, the Court upheld the appellate decision requiring the state of California to release approximately 40,000 inmates in order to comply with the Eighth Amendment.

The Prison Litigation Reform Act of 1995 (PLRA) set the procedure for challenging prisons overcrowding on Eighth Amendment grounds. It required a special three judge panel be appointed prior to the release of any prisoners for an Eighth Amendment violation. It required that any order releasing inmates be narrowly tailored to release only those inmates necessary to comply with the Eighth Amendment. Furthermore, inmates can only be released after the District Court has issued a less intrusive order requiring the state to take steps to comply with the Eighth Amendment and the initial order failed to obtain compliance with the Eighth Amendment.

The Ninth Circuit Court of Appeals combined two district court cases challenging overcrowded state prisons. In Coleman v. Brown the District Court found that prisoners with serious mental health problems failed to receive treatment complying with the Eighth Amendment and California v. Plata involved the failure to provide timely and sufficient medical treatment in the prisons.

The three judge panel ruled that the prisons have two years to reduce inmate levels from twice the design capacity to 137 per cent of capacity. The prisons were designed to hold 80,000 inmates but at the time of the three judge panel decision were holdin 156,000 inmates.

As a result of overcrowding the suicide rate for California inmate is 80 percent about the national prison average. Psychiatric prisoners are often kept in a box, the size of a telephone booth, while awaiting treatment. Prisoners often go months and even years waiting to see a specialist. One patient died after seventeen months without treatment for testicular cancer. Insufficient space and the lack of cleanliness lead to the spread of contagious diseases in prison hospitals. The prisons have been unable to fill even the limited number of medical positions authorized by the legislatures. Doctors often resign after being unable to sufficiently treat inmates.

The PLRA requires that prior to an order releasing prisoners

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that —

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

The majority opinion by Justice Kennedy in a 5 to 4 decision agreed with the District Dourt panel that the lack of care violated the Eight Amendment. The District Court gave the state two years to reduce the number of inmates to 137 percent of design capacity. ¹ Part of the reduction can be accomplished by constructing new prisons or housing inmates out of the state but the court found that the state did not have the ability to sufficiently reduce the number of prisoners without releasing some of the prisoners prior to the completion of their term. Furthermore, the Supreme Court found that the trial court properly took into consideration, as required by the PLRA, the public safety needs of the state and that reducing the number of prisoners can be accomplished without unnecessarily affecting the public safety.

Dissents written by Justices Scalia and Alito which were joined by Justices Roberts and Thomas objected to the Federal Courts ordering the state to reduce its prison population. They felt that the problem was a state problem and that the state should handle it. They stated that less intrusive means were available to deal with the problem and they worried about the public safety problems that may be incurred.

Yesterday we wrote about the Berkeley County Detention Center where South Carolina authorities ban all books besides the bible.

While other jails may not ban books in quite the same drastic manner, the number of books being banned from prison libraries is increasing. In Connecticut a panel is reviewing the process used to approve books available in prison libraries and books such as In Cold Blood and Shakespearian plays may be removed if they are found to be too violent.

Most of the complaints involve issues of violence or sex. This is obviously not the issue in Berkeley County since the bible may be the most violent book around. The Federal government in light of terrorist attacks has limited religious books to a list of 150 titles for each religion in each prison district. But most “violent” books whether they be novels or nonfiction end up with the bad people learning their lesson. In fact many of them are sent to prison. This is hardly a message that prisons should censor.

Among those who have had books banned in Texas prisons are Jon Stewart, William Shakespeare, Sojouner Truth, Juan Williams, Jenna Bush, 50 Cent, John Grisham, Noam Chomsky, Stephen King, John Updike, Kurt Vonnegut, Jack Kerouac, Gore Vidal, George Orwell, Gustave Flaubert, George Carlin, and Sister Helen Prejean.

Are newspapers going to be banned? They certainly have more violence and sex than a book by Jenna Bush.

Prison authorities claim that the banning of some books is necessary for security and I can understand banning Locksmithing for Dummies. But Shakespeare? Books serve an important service in prisons. Many prisoners arrive at the prison illiterate and if they can be taught to read it will decrease recidivism. Furthermore it gives prisoners something to do with there time. It keeps many prisoners out of trouble while they are incarcerated.

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) prevents governmental bodies from placing a substantial burden on an individual’s religious activity by its land use policy or in institutions including jails and pretrial detention centers built with Federal money.

The statute reads in pertinent part:

(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Souhair Khatib and her husband plead guilty to misdemeanor welfare fraud in Orange County, California. They were sentenced to three years probation and thirty days of community service. As the period to complete the community service was ending, they went back to court to request an extension of time. For an unstated reason the judge was angry and revoked their probation. They were immediately incarcerated in the Santa Ana Courthouse’s holding facility. Khatib, a practicing Muslim, was forced to remove her hijab. This caused her considerable anxiety, aggravation, and embarrassment. Later in the day the judge called Khatib back into the courtroom, reinstated her probation and extended the time to complete the community service.

She sued in Federal Court. Orange County moved to dismiss the case on the grounds that the holding facility was not an institution under the RLUIPA. The District Court granted the motion and dismissed the case. The three judge appellate panel upheld the dismissal but an en banc decision unanimously reinstated the matter.

The court held that the holding facility was both a pretrial detention center and a jail. Since neither “pretrial detention center” or “jail” is defined in the statute the Court looked to the ordinary and common meanings of the terms. The court held that pretrial detention is simply the “holding of a defendant before trial on criminal charges.” Since the holding facility confines people waiting for court appearance and for trial it meets the definition. The court quotes Webster’s as defining a jail as a “building for the confinement of persons held in lawful custody (as for minor offenses or some future judicial proceeding).” Orange County describes the holding facility as a “secure detention facility . . . for the confinement of persons solely for the purpose of a court appearance.” Using this description there is no question that the facility is a jail.

Finding that the facility is an institution under the RLUIPA the Ninth Circuit remanded the matter to the District Court with orders to reinstate the action. But the next question for the court will be does prohibiting the wearing of the hijab promote a compelling government interest. Among the issues will be does the hijab create a security problem? Can it be used in an assault or a suicide attempt? But we can note that both Federal and state prisons allow women to wear hijabs. The county will argue that the temporary nature confinement in the holding facility creates problems not found in prisons.

The Supreme Court ruled, yesterday, in Pepper v. United States that following an appeal that requires a resentencing the trial court can consider the defendant’s post trial rehabilitation.

Jason Pepper plead guilty to participating in a methamphetamine conspiracy. Although the guidelines were 97 to 121 months the court sentenced him to 24 months based upon his giving substantial assistance to the government. The prosecution only recommended a 15 per cent reduction and it appealed to the Eighth Circuit Court of Appeals. The appellate court granted the appeal and ordered the trial court to resentence Pepper.

By the time of the resentencing Pepper was out of custody. He testified that he was going to a junior college and that he had made straight A’s. He also had a job where he was doing quite well. His father testified that he had not seen Jason for five years prior to his conviction but that Jason was more mature now and that they were getting along well. His parole officer also testified that Jason was doing well and that 24 months satisfied the goals of incarceration. Furthermore while Jason was in prison he completed a 500 hour drug program and he was no longer using narcotics.

The Court again sentenced him to 24 months based upon a 40 per cent reduction from the guidelines for substantial assistance and a 59 per cent reduction for inter alia post sentencing rehabilitation. The government again appealed. The Eighth Circuit again reversed finding that use of post conviction rehabilitation is inappropriate.

On the third sentencing he was sentenced to 65 months and he appealed. The Eighth Circuit affirmed and the Supreme Court granted certiorari. It sent it back to the Eighth Circuit for consideration of Gall v. United States, 552 U. S. 38 (2007). The Eighth Circuit found Gall inappropriate and returned the case to the trial court for resentencing. He was again sentenced to 65 months and appealed. The Eighth Circuit affirmed and the Supreme Court again granted certiorari.

This time it ruled that there is a long history of allowing trial judges to use a broad range of evidence in sentencing and 18 USC 3577 states:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Despite the fact that 18 U. S. C. §3742(g)(2) limits evidence at a resentencing to the evidence considered at the original sentencing the Supreme Court found that evidence of rehabilitation can be used at resentencing. Section 18 U. S. C. 3742(g)(2) along with the guidelines was part of the Sentencing Reform Act of 1984. While the mandatory nature of the guidelines and some sections were found unconstitutional in Booker the Booker Court did not discuss Section 3742(g)(2). However the same reasons apply and Section 3742(g)(2) can lead to unconstitutionally high sentences and therefore it must be found unconstitutional.

But one has to wonder if evidence of rehabilitation can be used to reduce the sentencing on resentencing after an appeal why not allow a defendant, after they have completed a significant part of their sentence, to apply for a reduction if they show evidence of rehabilitation. Why not allow rehabilitated convicts to return to court while completing their sentence or while on supervised release to show that they have been rehabilitated and no longer need to be incarcerated or under supervision? If they are no longer likely to reoffend and they are no longer a danger to society they should be released. This is particularly true if they can show that they have learned coping and employment skills that will allow them to survive without committing future crimes. By shortening incarceration periods it will also save tax dollars. This will give convicts a considerable impetus to get job skills, stop using drugs, and become rehabilitated. Eventually they will be released anyway and if they can prove rehabilitation we will all be safer.