The Supreme Court ruled this week in Florence v. Board of Chosen Freeholders of County of Burlington that a jailor may conduct a visual search of an inmate, involving a strip search and the inmate’s forced manipulation of bodily parts, prior to the inmate entering the general population of the jail regardless of the seriousness of the offense leading to the incarceration.

Albert W. Florence was arrested in 2005 on a warrant that should have been removed from the books in 2003. He spent six days in two jails prior to being released. When he entered each of the jails a strip search was performed. He was observed showering with a lice killing shampoo. As he undressed officers visually searched him for scars, marks, gang tatoos, and contraband. He was required to open his mouth, lift his tongue, raise his arms, and lift his genitals.

The issue of strip searches for minor offenses has caused considerable debate in the lower courts and it should be no surprise that the Supreme Court was quite divided on the subject. The majority, consisting of Chief Justice Roberts and Justices Kennedy, Alito, Thomas, and Scalia held that the necessity to keep contraband out of the jails, to segregate feuding gang members and to prevents the transference of disease are valid penological goals and as a result jails should be allowed to conduct such searches. The minority, consisting of Justices Breyer, Kagan, Ginsburg, and Sotomeyor point to the extremely invasive nature of such searches. Furthermore, they point out that there are very few examples of people charged with minor offenses bringing contraband into the jails and that most of these can be screened out by allowing strip searches when the jailor has a reasonable suspicion that the inmate possesses contraband.

Both sides agree that future litigation might point to certain categories of inmates who should not be searched. These may include, among others, people who are not entered into the general population, individuals picked up for traffic offenses who will be taken before a magistrate shortly after arrested and released.

Overall, the issue of contraband in the jails is a major issues that leads to injury to jailors and inmates. The jails must be kept free of drugs and weapons. But perhaps the question here should be why are people charged with traffic violations and other minor offenses being put into our jails in the first place, particularly in light of the overcrowded nature of most of our jails and the cost of keeping people in jail. Sadly, The Supreme Court ruled in Atwater v. Lago Vista that people charged with infractions who cannot be sentenced to jail can be held in the jail prior to going before a magistrate for the setting of bail or prior to trial.

Corrections Corporation of America, (CCA) a major owner of private prisons has offered to buy state, local and Federal prisons in exchange for twenty year contracts in which the governmental body guarantees to keep the prisons at a minimum of 90 percent of capacity.

According to its web site CCA “designs, builds, manages and operates correctional facilities and detention centers on behalf of the Federal Bureau of Prisons, Immigration and Customs Enforcement, the United States Marshals Service, nearly half of all states and nearly a dozen counties across the country.” It is the largest provider of private prisons in the country.

While states are hurting for money and may be tempted into accepting the offer it has many problems. First, it encourages the courts to keep the prisons full and to send people to prison who may be better off if they are kept in local jails or in alternate programs. Second, while the states may make money in the short term by selling the prisons to CCA they would be committing the taxpayers to a long term debt since they will be required to pay a per diem for every day a prisoner spends in a CCA prison. Third, unlike when the state owns the prison, government will have very little control over what rehabilitative, recreational and job training programs are available in the private prisons. CCA, a profit making corporation will have little incentative to provide rehabilitative or job training programs. Furthermore, they will save money by keeping prison medical services to a miimum. Fourth, as a profit making corporation they are likely to hire minimally trained guards and pay them less than they make as civil service employees. Poorly trained guards are unable to protect inmates, the surrounding communities, and themselves from violent acts which are inate to prison life, particularly with uneducated and poorly trained prison staff.

The idea of the private prison industry giving money to governmental bodies in exchange for sending inmates to private prisons is ethically questionable. Two Lucerne County, Pensylvania juvenile court judges are now serving long prison terms for taking bribe from a construction firm which built private prisoners in exchange for sending juveniles, often without due process, to the private facilities. Former judges, Mark Ciavarella Jr and Michael Conahan received over a million dollars in exchange for sentencing juveniles to private facilities. While CCA’s offer to the states may be in the open and perhaps cannot be classified as a bribe they are still offering money in exchange for imprisoning people. Society’s goal must be to keep people out of prison and something is wrong with paying the state to imprison people.

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.

At age 14 Omer Ninham committed a vicious murder. While accompanied by four of his friends he purposelessly dropped a 13 year old boy from the fifth floor of a parking facility. The kid fell to the ground and died. Ninham was tried as an adult in Wisconsin and given the maximum sentence for an intentional homicide–life without parole (LWOP).

The Supreme Court has dictated a two step process in determining whether the Eighth Amendment’s cruel and unusual punishment clause is violated:

First, the Supreme Court considers “‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue” . . . Second, notwithstanding the objective evidence of society’s standards, the Supreme Court “determine[s] in the exercise of its own independent judgment whether the punishment in question violates the Constitution.”

The majority of the Wisconsin Supreme Court found that the Eighth Amendment was not violated. It ruled that there is no national consensus opposing the use of LWOP for teenagers in intentional homicide cases and using its own judgment it did not find a constitutional violation.

The United States Supreme Court has found that in determining whether there is an Eighth violation teenagers must be treated differently from adults. Punishment must be proportionate to the offense. Teenagers are less culpable than adults and therefore, at least in the cases of the death penalty and LWOP in nonhomicide cases teenagers are treated differently. The US Supreme Court has given three reasons:

1) Juveniles possess a lack of maturity and an underdeveloped sense of responsibility, qualities which often result in impulsive actions and decisions; (2) juveniles are more vulnerable or susceptible to negative influences and peer pressure; and (3) a juvenile’s character is not as well formed as that of an adult.

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.

Georgia prisoners are using contraband cell phones to arrange a strike at a number of state prisons. They are refusing to come out of their cells to perform their prison jobs. Georgia, unlike other states, does not pay prisoners for their prison jobs. Most states pay a nominal fee to prisoners for their work.

The prisoners are using cell phones to coordinate the strike and to communicate with the outside world. Cell phone are prohibited in prisons because they can be used to arrange outside help to escape. Unlike prison phones they are not monitored by prison staff. but in recent years cell phones have become more available. Often prison guards sell inmates the phones for many times what you and I would pay on the outside. Phones help inmates communicate with their families. Otherwise they are limited to making collect calls using phone companies that have contracts with prisons allowing them to charge outrageous rates which the prisoners and their families cannot afford.

Another unique thing is that the strikers appear to be united across race and religious lines. This is unusual in prisons which are often run by racial or religious gangs.

The gangs often spill over and support racial gangs on the outside. It would be nice if the cooperation that’s beginning with the strike can continue after the prisoner’s release.

Ingmar Guandique is set for trial October 4 for the murder of Chandra Levy, the intern to former Representative Gary Condit in Washington D. C.’s Rock Creek Park on May 1, 2001.

Last week Judge Gerald Green held a hearing on pretrial motions. Evidentiary motions are important since there are no eye witnesses or DNA evidence. At the time of Guandique’s arrest he was serving time in a California prison for the assault of two other women in the same park. Prior to his arrest Guandique was questioned in his cell by Federal Park police. They searched his cell and found inter alia pictures of Levy. Guandique’s attorney’s moved to exclude the pictures but the court ruled that there is only a minimal right to privacy in a jail cell and the pictures could be admitted.

The Fourth Amendment prohibits unreasonable searches without a search warrant. The argument could be made that since Guandique lived in the cell a search warrant should be necessary to search it much like a search warrant is necessary to search a residence. But a search is unreasonable only if there is an expectation of privacy in the area to be searched. Guandique could not have been surprised by the search. There is certainly no reasonable expectation of privacy in a jail cell. Corrections officers regularly search jails and prisons for contraband in order to protect inmates and staff. As a result inmates have been found to have only very minimal privacy rights while institutionalized in jails and prisons.

But at the same time, following long standing policy the Court prohibited the government from using statements made by Guandique to probation officers in relation to the prior conviction for the assault of two other women in the same park. This is done to encourage cooperation with probation officers and to prevent coerced statements.

Recently California Courts have taken some steps towards correcting a situation in which parolees with indeterminate sentences were rarely if ever released from prison. Prior to the California Supreme Court’s August 2008 decision in In re Lawrence the Board of Parole Hearings and the governors had a free hand in dealing with parolees. Rarely did the courts set standards governing the release of parolees. As a result the chances of a prisoner with an indeterminate sentences getting parole was practically nil.

In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.