ersFLORIDA PRISON LEGAL

ectivesVOLUME 9. ISSUE 3 ISSN# 1091·8094 MAY/JUN 2003

FDOC PANICS OVER THREATTO PRISON TELEPHONE

MONOPOLY SCHEMEby Teresa Bums-Posey

Recently an Associated Press article that ran in manynewspapers caused a panic among top prison officials inFlorida. The article reported on how the families ofmany, prisoners' in some states are gettingaround· exorbitantly expensive collect-call telephonerates from their incarcerated loved ones and how prisonofficials are fighting hack to force families to continuepaying the high rates.

The AParticle told the story of Gillian Bennett,the wife of a prisoner in New York. With the cost ofaccepting her husband's collect phone calls soaring andhaving become a financial. burden, she had signed upwith one of a growing number of small businessesaround the country that help priso~ers' families skirt theprison system's expensive rat~. In Gillian Bennett'scase, by signing up with the business she cut hermonthly phone bill from $500 to $50, while acceptingthe same number ofcalls from her husband.

Breaking the Stranglehold

When New York prison officials and their phone icompany found qut what she had done to lower her

FAMllJES ADVOCATU PRISONERS

UNl1!D FOR PRISON REFORM

phone rates. they claimed she had violated prison rulesand blocked all further calls from her husband to herAlbany, N.Y., home. Meanwhile, back at the prison, herhusband was threatened with solitary confmement forhis participation in trying to reduce the rates.

The Bennett's story is not that unique. Withdawning awareness that an increasing number offamilies nationwide are turning to' the businesses thatoffer cheaper collect-call rates to prisoner's families,prison authorities and the phone companies they contractprison phone services to as a monopoly are crackingdown on those businesses and the families that turn tothem for help.

As usual, when their logic is fuzzy on an issue,prison officials are turning to their catch-all "securitythreat" claim in support of their telephone monopolyscheme that gouges millions of dollars out of prisoners'families each year in many states. Prison officialsdefend the monopolies saying thc;.ir more expensivephone systems should be the only choice because theyare designed to record or allow calls to be 1t10nitored toprev~t prisoners from committing more crimes, likemaking threats or drug deals over the phone. Theimplication is that families and businesses that skirt thepr!sons' phone monopoly, in any way, are defecting theprason phone system's security features. That simply isnot true.

The problem for prison officials is a phoneoption available to every phone customer today, theubiquitous call forwarding. With some variations, it

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---------------- FLORIDA PRISON LEGAL Perspectives ----------------

Less than two weeks after the AP articleappeared in mainstream newspapers; the FloridaDepartment of Corrections panicked over the thoughtthat families might learn how to reduce their phone rates.In April all copies of the magazine Prison Legal News(PLN), Vol. 14, ,No.4, addressed to Florida prisonerswere impounded and rejected by prison official because

FDOC Overreacts

works like this: A prisoner's family member establishesa phone number near the prison that the prisoner can callat the local area calling rate, which is usually much lessexpensive than a long distance call outside the local area.The faml1y member then arranges with the phonecompany that services the area' where that local numberis eStablished to have all calls· to that local number(psually Just the prisoner's) forwarded to the familymember's home at a privately negotiated long distancerate well below the prison system's monopoly rate. Thebusinesses that families are signing up with to get lowerrates simply do all the work of setting up a system likethat for the families and make a small percentage on thenegotiated forwarded long distance portion of the callsmade.

Contrary to prison officials' claims that such analternative setup defeats their special security features,the local call that the prisoner makes to have the callforwarded long distance is still subject to all of thesecurity features applicable to any call that is made from

'the prison - local or long distance - it's just that thelocal/forwarded call can be made at a much lower cost tofamilies that pay for the calls. To tty to block suchsetups, however, many prison systems have rules thatprohibit call forwarding on calls made by prisoners.

So if security isn't the'real problem with prisonofficials, what is it? •

According to some estiniates, nationwide theprison phone business is generating as much as $1billion a year from prison systems and the phonecompanies that they award their monopoly phonecontracts to. Ignoring the burden that extremely highphone rates piace on families, who pay for the calls,many prison systems, just like Florida's, give the phonecontract for the system to the to the company thatguarantees to return the -largest commission on callsmade to the Department of Corrections- instead ofbasing the contract on a guarantee of the lowest rate forconsumers, that is, prisoners' families. That, in tum,causes the telephone co~panies to charge the highestrate allowed by I.aw so they can pay the prison. systemthe largest commission to get the contract. (See: FPLP;'Vol. 8, Iss. 5, "Let's Play Monopoly: Florida's PrisonPhone System", for a detailed report on the prison phonebusiness in Florida.)

FPLPSTAFFTeresa A Bums-PoseyBobO. PoseyOscar HansonSherri Johnson

PublisherEditorCtHlditorResearchAdministrative Assistant

FPLP ADVISORY BOARDWilliam Van Poyck

Philip BagJey-Teny VaughnMichael Lambrix-James QuigleyLindaOottllcb-8usan Manning

Enrique Diaz-Gene SalserMichael Palmer·Mark Sherwood

Trish'Mills

Publishing Division of:FLORIDA PRISONERS' LEGAL AID

ORG.,INCA SO1(cX3) Non Profit orgariization

Fax (407) 568-6200Email: fplp@aol.com

Website: www.fplao.org

FLORIDA PRISON LEGALPERSPECTIVES

P.O. Box 666-387'Chuluota, Florida 32766

David W. Bauer, Esq.Loren D. Rhoton, Esq.Oscar Hanson, CPL

Linda Hanson

.FPLAO DIRECTORSTeresa A: Bums-Posey

Bob O. Posey, CPL

FLORIDA PRISON LEOAL PERSPEcnVI!S(FI'LP) it pu!llishedlip 10 six lilna • )..... by FIori4a 1'riso=I' LcsaJ Aid~11IC. (FPLAO~ 15232 East C<llonial DrM, Ortaddo. FL 32826-5134,mailina 1ll4t<ss: P.O, Box 1160-387, CIwluoIl, FL 32766.

FI'LP it • """ palll puhJlcalion IOcwins on tho florida prison mdCIimioal juJIil:c iystam. . FPLP pmWla • wllide 1'0< .......info~ lIIld ltSOlIIOa oIlOcIina plis<men. their fOmiIi... fncnds,loved ones md lho gcnenI puhW: offlorida.

Ileductioll ofcr'.mo md recidi'iJm. malnt_ oflhmily Iios, civilriahU. lmpmw.g COlldlllons ofCCl'ofinemeIl1, ptOlllOlina IkilIcd COUJtacCess for priIoncrt, GIld promoth1s llCCClWIlabiJily of prisoo oftlcialt&noll i...... tho FPLPis~IO addlas.

FPLP'I_ 1ll0ra0y~.... 1Uffcaanot respond 10 "'llJOIU fotlegal odvicC. Duo to _ ofmollihal it l<CCivaI md vollmt_IlIlf llmi1ations, oIl eomsponcl.... thol it roceivcd CIIUlOi be.rcsponcIcd to, bul oIl moll cIoa RICCMo indMduallIlellliM .

Penniaion Is sraotod 10 reprint material appearing ill FPLP IholcIoa DOl iodicaIc it is· copyriahted pnMded IIlaI FPLP lIIld OIl)'illcticoted IlI1hor I/'Cl' idcrItlfied 10 tho reprI_1 GIld • copy of thopulllieatlcm ill MUdlIIIe m&IaI&I it puhlbhod it proWled to tho FPLPpubli$lIa".

1ltc maloNl· 10· FPLP should DOl be relied on U OIIlhorlllllivc,ullio_ GIld may IIOl conIIiD dciOlll informatioo 10 dW wi1h •J<sd prohlem. .

FPLP it 0IIl0lllllicalJy _ to oIl members of FPLAO. IDe.• u • 'membcnhip bene6t. M<mber1IIip du.. fOf FPLAO, IDe.• run 00 •yatly basi. and .,., S9 fot plis<men. SIS for fiImllyIlIClIlba1IInclividuals, $30 for lIIOmcysIprofcssiallals, md S60 forbulinesseslinslillllionsiorsonizatioM Fllmily members or loved 0Ilaofprisoners who Ir1IlIDIlllo to alford IIIe bosia memhmhip dues may...ave IDCrIIbenIlip for OIl)' size donation Ih.1lIbcy <a:I olJ'onI.

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the magazine carries advertisements for businesses thatoffer to help families reduce prison collect-call phonemUs. .

Those advertisements, the Department nowclaims, "encourages inmates to use phone companiesother than those assigned to the institution by givingthem lower rates and violates the [FDOC's] rules aboutusing the institutional phone systems. [The ads also]violates the security of the institutional systems." Thatposition is rather idiotic where the ads are clearlydirected at families, not prisoners. Prisoners cannot set

up a system to skirt the FDOC's chosen phone company.It is instructive, however, that the PLN censorship cameonly days after the AP article appeared considering thefact that PLN has been carrying the same ads for yearsand never been censored for them before. And there areother problems with the censorship.

The FDOC failed to notice PLN or subscribingprisoners what "rules" the ads allegedly violated, but itcan only be the Department's rule prohibiting callforwarding, Rule 33-602.205(2)(a), Fla. AdministrativeCode, since that is the way the alternative setup avoids .the high rates of making a direct long distance call.However, because of the unique wording of that rulethere is a simple way families and businesses cancomply with the rule and still set up .a reduced rate callforwarding setup. The cited rule states:

"Iamates sball Dot make three-way calls nor makecalls to Dumbers OD the (prisoDer's approved phone)list which are then trans/e"ed to otherphone numbersnot on the list." See also: Rule 33-602.205(12Xb) S.,F.A.C.

So. if a prisoner places both the local area phonenumber .that is used for reduced rates and the longdistance number (that the local number is actuallyforwarded or transferred to) on his or her phone list, thenno rule is violated and the prisoner can use thelocaVforwarded number and the family pays lower rates.The biggest savings would be on out-of-state calls orwhere the prisoner makes frequent in-state calls outsidethe local calling area.

For example, local area collect-call rates arecapped in Florida by the Public Service Commission atSI.75 surcharge and SO.25 flat fee per call (unlimitedminutes). There would be a charge per month toestablish the local number (the same as for a basicservice residential phone), usually around S25 or S30 amonth. Then the per-minute rate for the forwarded longdistance portion of the call, which usually can benegotiated to SO.10 per-minute or less since the familymember can select which phone company carries thatportion ofthe call.

Adding that up, say the prisoner makes 25 callsa month to stay in touch with his children in Virginia,that would be SI per call out of the' S25 for the basiclocal number service, plus S2 for the SI.75 local collect­call surcharge and $0.25 flat rate per call, plus SI.50 foreach 15 minute call .at SO.10 per-minute for the longdistance portion of the call. That gives you a total ofS112.50 for the 25 calls to anywhere in the U.S..

Compared to the FDOC's monopoly rate system, whichaverages S20 per 15-rninute call for out-of-state calls, orS500 for 25 calls, it's easy to see the savings to be had.

ar course, if all families set up, or signed upwith one of the companies that will help them set up.such an alternative phone system, the FOOC's phonemonopoly cash cow will dry up. Last year theFDOCreceived almost S19 million from MCI WorldCom as its53 percent commission on phone calls made by Floridaprisoners. This year it will make even more as there areabout 2,000 more prisoners in the system.

It is expected the FDOC will fight tooth and nailfor the millions it is gouging out of families, which mayaccount for its overreaction to the ads in PLN. Thoseads simply inform about the businesses.that will helpfamilies set up a lower rate alternative phone system,unlike this article that explains how those businesses doit.

Alternate Solution

The local-number/call-forwarding setup is onlyone solution to obtaining lower phone rates forprisoners' families and is not practical for everyone.Many families cannot afford the basic expense of such asetup and it is those families that are most hurt by theFDOC's extreme high rate monopoly.

A better and more permanent solution is the onebeing proposed by Florida Prisoners' Legal AidOrganization's rate reduction campaign. The FamiliesAgainst Inflated Rates, or FAJR, Campaign is workingto have the families and' friends of Florida prisonerscontact their state legislators' and other governmentofficial to call on'them to eliminate the FDOC's highrate monopoly. The solution is legislation oradministrative regulations requiring the FDOC to givethe .prison phone contract to the company that guaranteesthe lowest rates for families - instead of the highestcommission to the FDOC.

In the past couple of months the FAIRCampaign has been distributing Action Packets tofamilies that include complete information to participatein the letter writing and complaint-filing part of thecampaign. The FPLAO website is set up to allow emailsto be sent to legislators and the Florida Public ServiceCommission asking their help to stop the FDOC'sgouging of families.

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FLORIDA PRISON LEGAL Perspectives

DNA Dragnet to Expandby Oscar Hanson

For morc information about the FAIR Campaign, see thenotice in this issueofFPLP.

FDOC records; Prison

Such campaigns have been successful in otherslates. and this may be whal the FDOC is reallyconcerned about with ilS recent overreaction to the ads inPLN. It is certainly time for the FDOC to realize it muslnoondon its anti-family policies and that they will nolonger be tolerated by prisoners' families.

Following is the contact infonnation for the adsthat were run in PLN:

(Sources: AP article, 3131/03;L~glll Neil'S. Apr. 03] •

Inmate Family Services116 IH JS S.New Bnaunfels, TX 781301-866-446-6283 (Toll r....jwWYI'.inmatefumily services.com"CIII ,he high costs ofcolleCI calls from pri.fOIIS"

The Justice Department is seeking Il.'gislation torequire nrrcstecs and juvenile offenders to submit DNAsamples to be placed inlo the FBI's DNA database.Currently. only DNA from adults convicted of crimesclln be collected and placed in the national database,which is used to compare biological evidence fromunsolved crimes.

Administrators from the Justice Department saytlut adding profiles from thousands of adult arresteesand juvenile offenders would greatly e:(pand the D AS)Stcm's worth by increasing lhe number of potentialmatches. As of January 2003. there were about 1.3million DNA samples on file. according to FBI officials.

Whitc law enforcement officials claim that DNAis to the 21" century what fingerprinting was to the 201h

,

critics sny adding arrestee and juvenile offender profilesto lhe dalabase threatens privacy by expanding the poolof smnples beyond adult criminals. Although onlydigital DNA profiles would be linked to the FBI

database.. the blood or saliva snmples from which theDNA \\IllS drawn would be kept by statc labs.

DNA analysis is not the 2,11 cenlury equivalentof routine fingerprinting. Unlike an ink copy made of asuspect's prinlS, DNA tests require a person to surrendera sample of blood or saliva from his or her body. Whilethe tests are intended to providc identifICation withoutrevealing much about a subject's genetic makeup, eventhe limited sample tested could provide sensitiveinformation on a person's medical history.

Further, states and the fcdcrnl government arenot just keeping DNA results, but also the actual samplesfor fUlUre testing based on scientific advances.Possibilities include creating a genetic blueprint of asubject's physical charactcristics, vulnerability todiseases, cven genes !inkl.'<! to criminal behavior.

~ Telc-Nel, Inc. 'F L Government possession of this infonnlltion risksICI 1-888-299·7800 violnting innocent individuals' medical and privacy

www.prisoncalls.com rights."Sal'l! lip 10 6()OAJ on collecI prison calls" "II's only a matter of time before the

~~ e. 'ouJ c.ollf:(...1CA.l\ government gets its hands on those DNA samples andPrivate Line!'l, Inc. CQ IJ Ytt.-r c:..hW"'i t. := ~ l.l!. starts playing around with Ollr genetic code." says Barry1-866-342·5754 (Toll free) , ~ Steinhardt. privacy specialist for the American Civil

.... www.privateJinesinc.com etC\' 0. "" •...,u-t L Liberties Union's national office in ew York City."Bre"k Ihe inmart! telephone system stranglehold" "They say they don't want to do that. but IlOI to long ago

they were saying they'd only take D A profiles fromrapists and murderers. and now they wantjuvcnilcs....we·re not just on a slippery slope, we'rehalfway down it."

For those unfamiliar with DNA. a little historyfollows. DNA is a cellular acid contained in blood andother body fluids and tissues. Law enforcementconsiders DNA an ideal tool for crime solving. Becauseit contains all individual's unique genetic code. a DNAsample taken from blood, semen or even traces of salivain a bite mark can be used 10 match n perpetrator to acrime.

In 1989, states bcgnn collecting DNA fromconvicted criminals and adding thc profiles 10 acomputer database that could match them to DNA fromunsolved crimes. In 1992. the FBI created a system thatlinked the state databases via a bureau computer inMorgantown. West Virginia.

The Justice Department says it is not urgingSlates to expand DNA t<::sts to include everyone arrestedfor a crime because that's an issue for slales to decide.Yet by including in its natioll3l database all DNA resultsthat stntes submit. including those from individualsunjustly arrested (and even wrongfully convicted), thedepartment is condoning testing of the innocent.

Broad-based DNA tcsting increases the chancesof catching criminals - and of freeing those who areunfairly accused. But the pursuit of those benefitsdoesn't override the privacy rig/liS guaranteed by ourconstitution of law·abiding citizens.

4ISources: USA TODA)'. 4-16-03. 4·22-03] •

---------- FLORIDA PRISON LEGAL Perspectives --------------

MICHAEL·V. GIORDANO

AGGRESSIVE POST-CONVICTION REPRESENTATION

The Law Offices ofMichael V. Giordano412 E. Madison Street. Ste. 824

Tampa, Florida 33(;02(813) 228-0070 '

A STATEWIDE practice specializing in Post-ConvictionRelief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**

**PAROLE**

**DIRECT APPEALS**

**HABEAS CORPUS**

**POST-CONVICTION RELIEF**

*INEFFECTIVE COUNSEL

*WITHDRAWAL OF PLEA

*ILLEGAL SENTENCES

*ACTUAL INNOCENCE

*I.N.S. DEPORTATION

•I am a fonner Assistant State Attorney (Felony Division Chiet), Assistant Public Defender (Lead Trial Attorney). and member of thefaculty at the University of Florida College of Law. I have devoted over 25 years to the teaching and practice of criminal defense law,and I am an author of a 1,250 page text on federal practice in the Eleventh Circuit. The major thrust of my practice has been post­conviction oriented. There is approximately 70 years of combined experience in my office. 1 do not believe you can find moreexperienced representation in the State of Florida or elsewhere.

..

The IUrins ofII Iawycr is an important decision lhat should not be based IOlcly on advatisemenb. Bcfore you decide. lIIk us 10 send you free wriUcn infantllllion about our quaJillclltiims.

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--------------- FLORIDA PRISON LEGAL Perspectives ----------------

Effective Exhaustion ofAdministrative Remedies

by David M. Reutter

Although most prisoners legitimately feel theFDOC's grievance process is broken, it remains the onlyavenue for prisoners' complaints to be heard byadministrators. Moreover, it is a prerequisite to filingany civil judicial remedy a prisoner may file. Thisincludes a lawsuit seeking only monetary damages, evenif such damages are not available through the grievanceprocess. See: Booth v. Churner, 121 S.Ct. 1819 (1001).

Prisoner under-use of FDOC's grievance systemis the largest contributor to that system being broken.Many factors contribute to this under-use: ignorance ofprocedure, lack of knowledge of what to write, and fearof retaliation. This article attempts to address the firsttwo factors by highlighting the basics of the grievanceprocess. The last factor, retaliation, while a legitimatefear, can be reduced by larger participation of prisonersin the process, for if only a select few are grieving anissue, it is easy for guards and admintstrators to focus onthose few. However, if grievances en mass are filed,administrators must then focus on the merits of thecomplaints. In recent years, brought on by budgetconstraints, retaliatory transfers have decreased, ascurrent FDOC policy discourages transfers, which arecostly.

Time Limits

. A first considenttion is when to file yourgrievance. Simply, as soon as possible after the incidentor action at issue occurs. FDOC policy states that timeframes for determining grievance timeliness "begin[s]the day following the date of the incident or response tothe grievance at the previous level." Procedure Directive103.001 (3).

An Informal Grievance must "be received withina reasonable time of when the incident or action beinggrieved occurred." Chapter 33-103.1 I I(l)(a), F.A.C.The vague term "reasonable time" is determined on acase-by-case basis, which requires officials to look at theavailability of witnesses and relevant documentaryeVidence. If you are filing beyond 15 days of an incidentor action, you should state at .the beginning of yourgrievance why the delay is reasonable.

Direct and Formal Grievances filed at theinstitutipn and Direct Grievances and Appeals filed withthe Secretary of FDOC must be received within 15 daysof the incident or action, or the date of response at theprevious level. Chapter 33-103.1 I I(I)(b), (c), (d),F.A.C. A grievance is considered filed or received onthe date you give it to prison officials or place it in the

mailbox, for the "mailbox rule" has been held to apply toFDOC's Inmate Grievance Procedure. See: Pedroza v.Tadlock, 70S SO.2d 1005 (Fla. 4dl DCA 1998). If the15 Ib day falls on a weekend or holiday, the due dateshall be on the next regular work day. Chapter 33-103.011(5), F.A.C. .

If for any reason you cannot meet these timelimits, you may request 81\ extension of time. Chapter33-103.111(2), F.A.C. However, you must demonstrateit was not feasible (reasonably possible) to file thegrievance and that you made a good faith effort to file ina timely manner. Such a situation may exist if you wereinhibited from using the' law library to access rules orapplicable case law. .

Responses to your grievances are due as follows:(I) Informal Grievance within 10 work days of receipt .by official; (2) Formal and Direct Grievances, filed atthe institution, within 20 days·of receipt by officials; and(3) Direct Grievances and Appeals to the Secretarywithin 30 days of receipt. Emergency Grievances onany level require a response within I5 days, unless anemergency is found not to exist, which requires aresponse within 72 hours. Procedure Directive 103(l9)(b) 1.

If you have not received a response and did notagree to an extension of the above time limits, you maymove on to the next level of the grievance process oncethe time for officials to respond has expired. However,you must clearly state the date you filed your previousgrievance, who it was sent to, and that you have notreceived a timely response. If a response is not timelyprovided from the Secretary level, you may proceed tofile any judicial remedy that may be available. Chapter33-103.011(4), F.A.C.

The Proper Remedy

Before filing any grievance you must firstdetermine what type of grievance to file. Mostcomplaints start with an Informal Grievance on a regularInmate Request Form (DC6-236). On the top line of theRequest Form you simply write "Informal Grievance."If the Informal Grievance is denied, you would thenproceed by filing a Formal Grievance to the Warden, andif that is denied, then an Appeal to the Secretary, forboth of which you use what is commonly referred to as aFormal Grievance Form (DCI-303) or "303" Form. Incertain situations you can skip filing an InformalGrievance and file a Direct Grievance on a 303 Form ifit is a case of: (a) an emergency, which is dermed assomething that would cause serious or irreparable harmto you or subject you to a substantial risk of personalinjury; (b) is a reprisal (retaliation) situation; (c) agrievance of a sensitive nature; (d) alleging violation ofthe Americans with Disabilities Act; (e) a medical

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---------------- FLORIDA PRISON LEGAL PersPectives -------....;...-------

grievance; (f) involves incentivegaintime; (g) challengesclose management placement; (h) involves admissiblereading material; andlor involves disciplinary action notincluding corrective consultations. These issues are sentdirectly to the Warden, except for grievance appealsconcerning admissible reading materials which are sentto the Secretary. Also, Emergency Grievances,Grievances of Reprisal, and Grievances of a SensitiveNature may be filed directly to the Secretary. Whenfiling a Direct Grievance of any type it is advisable towrite what type grievance it is on the top line of theform. See: Procedure Directive 103.001(19). In practice,be aware, these type grievances are normally denied iffiled directly to the Secretary with instructions to refileat the institution.

Preparing and Writing the Grievance

As with any formal written document, youshould prepare a draft ofyour complaint before putting itto the final form. If you are filing an InformalGrievance, check the "Other" box on the form and writein the staff member's name who is responsible for theparticular area of your complaint. At times this maymean sending it to the person that caused the problem.While that may seem problematic, it allows the staffmember responsible to respond in writing, which will beuseful in any higher level grievance or appeal or judicialaction that you may file. However, you are not requiredto send your complaint to anyone you are allegingreprisal against or who physically abused you. Chapter33-103.015(6). On the first line of the Request Form .write "Informal Grievance." . Unlike InformalGrievances, on Formal Grievance Forms you can justcheck one of the provided boxes to indicate who yourcomplaint is going to.

The first "rule" of grievance writing is not to askquestions, seek information, guidance, or assistancebecause grievances of that nature "shall be treated asinmate requests and' the inmate will be advised that hecannot appeal the response." Chapter 33-103.005(2)(b)I., F.A.C.

Your grievance should state the date of theincident, the names of any prisoners or staff thatwitnessed or were involved in the incident or action, anda short narration of the incident. If you cannot identifywrongdoers, identify their position the best you can.The courts have held you need' not identify wrongdoersin your grievance if you cannot readily ascertain theirid~ntity, for you can name the Warden as a defendant ifit comes to a case in court to identify the wrongdoers,and then amend your complaint to include thosewrongdoers after they are identified. See: Brown v.Sikes, 212 F.3d 1205 (11'11 Cir. 2000).

7

Include all relevant facts in the grievance.Relevant facts include, for instance, that you haveincurred pain, injury, or require medical treatment.Describe in detail how you are or have been affected bythe incident or action. For example, that you have backpain that is not being properly treated. It causes you tohave pain run down your leg when you walk, you areunable to sleep at night because of the nain, or youcannot sit upright. Including such facts not onlyprovides the reviewing official with facts to justifytaking action on your behalf, but ifyour situation rises tothe level of a constitutional violation to where you haveto seek relief in court, you will be able to showknowledge of your condition by the grievancereviewer(s) .and demonstrate deliberate indifference toyour situation if they deny you relief. If your situationcontinues or worsens, file additional grievancesdescribing how your condition continues to affect you orhow it is getting worse.

Limit each grievance to a single issue orviolation. Procedure Directive 103.001(15Xa) 5. Theonly exception to that policy is when you are appealing adisciplinary report (DR) that resulted in more than onerule or Due Process violation during the processing of orhearing on the DR. In such 'cases, list the DR LogNumber (its on the DR form) and list each violation inseparate numbered paragraphs. You should cite allauthorities when alleging the violation of any case law,rule, policy, or procedure.

A useful method in filing and exhausting thegrievance process is to be progressive. This methodinvolves stating the facts and requested relief in theinitial grievance. Upon denial, rather than rewriting theentire grievance again on the next level form,. simplyattach a cOpy of the denied grievance that sets out yourcomplaint in full and write on the new form "Attachedand incorporated is my Informal Grievance (or FormalGrievance, etc.). I maintain the same grievance andrequest the same relief." You can add, if necessary. whythe lower level denial was improper or cite authoritiesthat show you are entitled to the requested relief. Donot, however, include new issues that were not includedin the initial grievance or your grievance may be deniedfor attempting to raise new issues. If new issues havearose, file a fU=W and separate grievance on just thoseissues.

FUing Your Grievance

If your complaint written out is longer than thespace provided on the form. you can add continuationpages. The FDOC would like you to provide threecopies of each page of the continuation pages for theirconvenience. If you do send three handwritten copies ofeach continuation page, you are suppose to get one of

--------------- FLORIDA PRISON LEGAL PerspectIves ---------------

the copies back with the response to your grievance.However. sometimes you will not get a copy back at all.FDOC policy does. state you may submit only one copyof continuation pages, but if you do you will not get thatcopy back. Procedure Directive 103.00I(l5)(a) 7.•(16)(a) 4. and (17)(a) 5. The same applies to anydocuments or exhibits that you attach to the grievance.The law library will not make photocopies of yourcontinuation pages. but should make copies of exhibitsto attach to a grievance. Chapter 33-602.405. F.A.C. Inthe case of appeals of impoundment or rejection ofadmissible reading materials. you are only required toattach one of the two notices of impoundment/rejectionfonns that you receive from the mailroom.

Important: You are also required to attach acomplete copy of any grievance and response on a lowerlevel when proceeding to a higher level. For example.when filing a Fonnal Grievance at the institution levelyou must attach a copy of the Infonnal Grievance thatyou filed to it, and when filing an Appeal to theSecretary you must attach a copy of both the Informaland Formal institutional level grievances to the Appeal.Only one copy of the lower level grievance(s) need to beattached, and they should be returned with the response.

Infonnal. Formal. and Direct Grievances filed.atthe institutional level are nonnally placed in the routinemailbox., though some institutions have a box just forgrievances. Appeals to the Secretary may be handled inthe same manner. Postage for grievances or appeals tothe Secretary wil1 be provided by the institution,although you may. if you wish, place it in a sealedenvelope and send it directly to the Secretary yourself. Itis usual1y unnecessary to do that since the institution willeventually learn ofyour complaint anyway.

Finally, your grievance should be signed andinclude your DC# next to your signature, failure to do somay result in delay of response to verifY it is yourgrievance. Chapter 33-103.005(2)(b) 2. No matter whatprison your grievance occurred at, your grievance is tobe filed with the prison you are currently at. Officials atyour present prison are responsible for handlingcomplaints that arose at a prison you were previouslyassigned to. If that is the case, clearly state in yourgrieyance that the grievance concerns an incident oraction at your previous prison. Chapter P-1.03.015(4),F.A.C.

Closing Thoughts

The Inmate Grievance Procedure is found inChapter 33-103 of the Florida Administrative Code(F.A.C.) and further defined in Procedure Directive103.00 I. Those rules and procedure directives areavailable from the' prison law library. If you are inconfinement the Chapter 33 rules may be available from

8

the housing officer, but you may have to request a loancopy of the Procedure Directive from the law library.Facilities without law libraries shall have access to therules and procedures from the classification office orsecurity shift supervisor's office. Chapter 33­103.004(4). F.A.C.

Forms DC6 and DC 1-303 are to be availableupon request from the prison library. classificationdepartment and staff. and the housing officer of anyhousing unit. Chapter 33-103.015(2). F.A.C.

This article is not 'all inclusive in detailing thegrievance procedure or in ways to prepare a grievance.It is meant to encourage prisoners to put their complaintsto paper. We are 75,000 strong. If we utilize thegrievance procedure en mass. it will be cheaper forprisons to address the root problem rather than continueto address grievances on the same issue. It will also takepressure off those steady grievance warriors.

The next time you have a complaint, reaet to itwith more than an expulsion of ineffective, and boring,hot air. Utilize the grievance procedure, which onlycosts you a little time. We all have plenty of that on ourhands. See you at the mailbox. •

Supreme Court Revisits Miranda

This fall the U.S. Supreme Court will decide theextent of its 1966 ruling in Miranda v. Arizona, one ofthe pillars of the liberal era of Chief Judge Earl Warren.The current conservative bench has often critized theMiranda decision.

The Miranda warning requires suspects to betold that they have a right to remain silent and thatanything they say can (and will) be used against them ina court of law.

In 2000, the Justices ruled that the 1966 decisionrested on constitutional principles and that Congresscould not pass a law allowing confessions to be admittedat trial when defendants had not been read their Mirandarights. The 7-2 ruling focused largely on limitingCongress' ability to meddle with court rulings.

The question in a Colorado case is whetherphysical evidence derived from such statements, such asguns or drugs, can be used in court. Past rulings of theCourt suggest that the Justices could be more closelydivided in this case. The U.S. Solicitor General willargue that' Miranda ~ars only the admission ofconfessions not physical evidence obtained as at issue inthe Colorado case.

The ruling will have a broad impact on poJi~etactics as police sometimes deliberately do not give theMiranda warning to try to get'details about evidence. -

---------- FLORIDA PRISON LEGAL Perspectives ----------

V1 ' . ; . .!;,.! LOREN D. RHOTON

!::1. Attorney At Law

412 East Madison StreetSuite 1111 '

Tampa Florida 33602: '(~13) ~26~3138,:

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rrhe hiring of~ lawyer is an important decision that should not be based solely on advertisements.,;., _:.~f,9~~)!~,g, !I~~~~~~~U,$.tC)seD,dyo~f~.wri~D ~illfqrJ!l~t.io.. ~~O,~t;~ur"qUQJifjcatjons., . ,Mi0N:&1?':¥.:Ylir0ht;·:\>~luF~SG2D}'<\::Ij·:«~..r;,,:;;J.j~~tdiiiJ~~~~:'. ·;\£;:::::·:'·~ .. ~-1id~>:·:~:Ll£;j\t>""·:~i.i;·"~>·!~~··:Y :fr.~·'iS.::t·::·'<·J.;~~.:.L~~il..4fi:~L~;'··;:· _·.,:::",·.<~;:·:,,~~Sl~)

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9----._---- _

FLORIDA PRISON LEGAL Perspectives

POST CONVICTION CORNER

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by Loren Rhoton, Esq.

Oftentimes when a criminal defendant on a probationary portion ofa split sentence (forpurposes of this article a split sentence is a prison sentence followed by a term of probation)admits to a violation ofprobation and agrees to a new prison sentence, the advice given bycounsel is incomplete as it. pertains to previously earned gaintime. Many trial lawyers are notfamiliar ,with DOC's treatment ofpreviously earned gaintime and thus misadvise their clients asto how the previously earned gaintime will affect the new sentence:. I have representednumerous inmates who were informed by their attorneys that,they would receive credit for allpreviously earned gaintime against their new sentence. Unfortunately, trial attorneys are oftenunfamiliar with Florida Statute §944.28(l) which provides DOC with the authority to forfeitpreviously earned gaintime upon a violation ofa probationary portion ofa split sentence.

Florida Statutes §948.281(1) provides that ifprobation is revoked for a defendant whoalready served a tenn of incarceration under a split sentence, DOC "...may, without notice orhearing, declare a forfeiture ofall gain-time earned according to the provisions of law by suchprisoner prior to... his or her release under such clemency, conditional release, probation,community control, provisional release, control release, or parole." §948.281 (l) effectivelyallows DOC to forfeit the previously earned gaintime and forces the defendant to serve theforfeited time before the newly negotiated sentence can begin. In other words, ifa defendantenters an admission to a violation ofprobation pursuant to a plea deal for a specific prisonsentence, DOC will make the person serve the remainder (forfeited gaintime) ofthe originalprison sentence before the new sentence can commence. Therefore, §948.281 (I) allows DOC tothwart the intention of the negotiated plea by adding more time onto the negotiated sentence.

If a defendant is not properly advised as to the effect of §948.281(l) on a plea to aviolation ofa probationary portion ofa split sentence and his previously earned gaintime isforfeited, then the plea is rendered involuntary and is subject to being withdrawn. A plea ofguilty is constitutionally valid only to the extent thatit is voluntary and intelligent. Brady v.United States, 397 U.S. 742 (1970). Three requirements are essential for a valid guilty plea: (I)the plea must be voluntary; (2) the defendant must understand the nature of the charge and theconsequences ofhisplea; and, (3) there must be a factual basis for the plea. Williams v. State,316 So.2d 267 (Fla; 1975). If a defendant does not understand that additional time (the forfeitedgaintime) will be added back onto the 'newly imposed sentence (thereby increasing the negotiatedsentence) then said defendant clearly does not have a clear understanding as to the consequencesof his 'plea. Such a plea would, ,thus, be rendered involuntary ifin fact DOC forfeited thepreviously earned gaintime and forced the defendant to serve a longer sentence than was actuallynegotiated.

Florida case law specifically provides relief for the above situation. In McCallister v.State, the defendant entere~ into a plea agreement to receive ten years credit for tiine served on aseventeen year sentence following the revocation ofprobation and was sentenced in accordancewith the agreement. DOC revoked the gain time portion of the original ten years in accordancewith Florida Statutes §948.28(l). The defendant in McCallister claimed in a 3.850 Motion thathe entered into the plea agreement with the understanding that he would receive credit for the full

10--------------

I

--------------- FLORIDA PRISON LEGAL Perspectives --------------­

ten years. McCallister asked that the trial court either: (1) resentence him in a manner that wouldenforce his plea agreement; or, (2) allow him to withdraw his plea. The McCallister Courtstated: "

"While the trial court cannot compel the DOC to follow the plea ',v,';~

agreement. since it wOJ.1ld usurp.the DOC's authority to forfeit gaiqtime, the trial court can still effectuate the plea agreement by eitherresentencing the appellant in a manner that will effectuate the pleaagreement given the DOC's forfeiture,'or by allowing the appellantto withdraw from his plea.:' Id.

Theretore, if a defendant were to be resentenced. he should be resentenced so that he would haveto serve the amount of time he actually plead to, instead of said amount of time plus the forfeitedgaintime. The McCallister Court further explained that ;;effectuating the plea agreement isproper even though the appellant had no legal entitlement to such gaintime since the DOC coulddeclare it forfeited, because the'court and the parties contemplated that the appellant would becredited with such gaintime.·· Id. .

McCalIister, a First District Court of Appeal case, is in accord with the other districtcourts of appeal in Florida. See, Foldi v. State, 695 So.2d 886 (Fla. 2nd DCA 1997); Williams v.Department ofCorrections, 734 So.2d 1132 (Fla. 3rd DCA 1999): and, Dellahoy v. State. 816So.2d 1253 (Fla. 5lh DCA 2002). Therefore, should DOC forfeit ga:ntime from a previouslyserved sentence upon the violation of prQbation, there is a remedy if there was a negotiated pleaagreement which did not take the effect of Florida Statutes §948.28(1) into account. Thesentence should be restructured to reflect the intent of the parties or the plea should be allowed tobe withdrawn.•

David W. Collins, Attorney at LawFonner state prosecutor with more than IS years ofcriminal law experience.

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"The hiring ofa lawyer is an important decision that should not be based solely upon advertisements.'Before you decide, ask me to send you free written infonnation about my qualifications and experience."

11-------- _

Streamlining COAsby Richard Geftken

FDOC Targets Pen-Pal Ads

[Sources: Tampa Tribune, 3/14/03; FDOC RulemakingNotice, 4/4/03. concerning Rule 33-210.101 "RoutineMail."] •

Federal Civil Procedure is so complicated it canbe incomprehensible even to those completing lawschool and passing a bar exam. For a change, the U. S.Supreme Court recently decided to streamline the federal

12

Following FDOC's publication of therulemaking notice, a public hearing on the proposal wasdemanded by !leveral prisoner advocate groups andscheduled for mid-May by the FDOC.

What happens with the rule proposal remains tobe seen. With the way FDOC is going this may be theyear that the Department finds itself embroiled in severallegal actions over its attempts to restrict and violateprisoners' and their correspondents' First Amendmentrights and the Fourteenth Amendment Due Processrights that must be afforded.

On Apr. 4, 2003, the Florida Department ofCorrections (FDOC) posted a final rulernaking noticethat the Department intends to adopt rules prohibitingprisoners, or anyone acting on a prisoner's behalf, fromposting personal ads seeking pen-pals on web sites or inany other type of printed media. Additionally, ifadopted, the proposed rule amendments would create ablanket prohibition on prisoners, "receivingcorrespondence or materials from persons or groupsmarketing advertising services, or from subscribing toadvertising services," and prisoners would be prohibitedfrom entering any type contest or sweepstake throughthe mail.

The FDOC is claiming that prisoners must beprevented from using personal ads to locate pen-palsbecause some prisoners try to con pen-pals out ofmoney.

Randall Berg, an attorney with the FloridaJustice Institute in Miami, said that his office will file aprotest with the FDOC over the pen-pal ad ban ongrounds that it would violate prisoners' FirstAmendment rights. Currently, the only remainingmeaningful review of prisoners' rights falls under theFirst Amendment umbrella. All other constitutionalangles have been extremely narrowed by both thejudiciary and Legislature.

Two other states, Arizona and California, haveattempted similar bans on prisoner pen-pal ads. Uponbeing challenged, however, both attempts by those stateswere ruled to be unconstitutional and struck doWn by thecourts.

_______________ FLORIDA pRiSON LEGAL Perspectives --------------­

civil appeal process by making Certificates ofAppealability (COAs) more obtainable. In an 8-1decision (Thomas dissenting) the high Court ruled thatthe Fifth Circuit erred ' in requiring habeas petitionerThomas Joe Miller-EL to make a substantial factualdemonstration of trial evidence in order to obtain a COAto appeal denial of his habeas petition. The case,decided Feb. 25, 2003, is Miller-EL v. Cockrell, 16 FLWFed. S77; S Ct. Case No. 01-7662.

. Federal rules require that if a u.s. District Courtdecides against an indigent litigant, he or she must firstapply for a COA from the same court, or the decisioncannot be appealed. The practice is highlydiscriminatory. The State is specifically excluded fromthe need to do this, and litigants who can pay theappellate filing fee need not worry about COA rejectionfor being frivolous under sec. 1915.

Nor is the basic concept fair. To issue a COAthe District Court is essentially required to admit that itsown decision is incorrect. It is patently illogical torequire the District Court to confess in a((vance that itsjudgment is shakey and that reasonable jurists coulddisagree with it.

Consequently, District <;ourts have been issuingfew COAs and that decision is not itself appealable.Many prisoner litigants reaching that point in an alreadycomplicated legal process simply give up, often makinga mistake.

While it is true that in the semantics of FederalCivil Procedure lingo a District Court's denial of a COAis not appealable, by turning to the Federal Rules ofAppellate Procedure, and then 28 U.S.C. s.s. 636 and2253,· it will be discovered that if a District Court deniesa COA, one can still be sought by application directly tothe Appeal Court.

'What Miller-EL streamlined was the criteria forgranting a COA. Under 28 U.S.C. 2253, the Court said,a COA decision is merely a "threshold inquiry" intoconstitutional defects. Further, the Court noted, "theCOA inquiry asks only if the District Court's decisionwas debatable."

Thus, it appears that following Miller-EL, ifcases can be cited supporting a litigant's argument that itis reasonable to assume that jurists of reason alreadydisagree with the District Court's determination and thata COA should issue from the Appeal Court.

One more sentence could have extended Mil/er­EL to COA determinations by the District Courts. Itmakes no sense for a lower court to impose a stricterstandard. It creates a flow of useless paperwork fromlitigants to the appeal court, but that is where theSupreme Court left the issue hanging. At least theMiller-EL "debatable" standard is to be applied to COAdeterminations by the appeal courts, and that should helpovercome the almost insurmountable obstacle thatCOA's had b~ome for prisoner habeas litigants inrecent years. •

--------------- FLORIDA PRISON LEGAL Perspectives ---------------

.from the editorIt is obvious to those who follow FDOC

rulemaking actions that certain elements within theDepartment have embarked on a mission to further restrictFlorida prisoners' communication and interaction with,and receipt of information from, the outside world. This isnot entirely surprising. For prisoners, information and astrong outside support system equals a relative amount ofpower. That, in tum, creates fear and anger among thosein· the prison bureaucracy who are insecure withthemselves or who self-righteously believe that allprisoners and anyone who would associate with them haveno real rights that must be respected.

In recent months there has been a flurry ofrulemaking proposals from the Department. In December,frustrated with FPLAO rulemaking challenges, theDepartment ignored mandatory rulemaking requirements,and bulldozed ahead to adopt' and implement new rulerestrictions on the amount and content of written materialsthat free world citizens may send to prisoners through themail. That has resulted in a furiously antagonistic legalbattle between FPLAO and the FDOC before the DivisionofAdministrative Hearings that is still ongoing.

Apparently oblivious to fundamental rights, inFebruary the Department introduced two more inf"umrulemaking pro~ls. The first proposal would prohibitprisoners from placing any advertisements, specificallyadvertising. in any medium for pen-pals, and prohibit themfrom receiving any mail related to advertising. Theproposed rule would also prohibit prisoners from enteringany contest through the mail. which would includewriting, poetry or art contests.

The Department followed that rule proposal withone that would prohibit prisoners from engaging in anybusiness or profession that might generate revenue orprofit for a prisoner. Specifically prohibited, unlessapproved by the Warden, would be engaging in thebusiness or profession of writing for publication.Additionally, prisoners engaged in a business orprofession would be required to turn total operationalauthority of same over to someone on the outside to whomprisoners would be prohibited from sending mail to or'receiving mail from concerning direction of the business.Further, under the rule proposal, any prisoner who even"attempts" to engage in a revenue-generating busineSs orprofession "through the mail, telephone, or any otheravenue of communication... shall be subject to disciplinaryaction."

On a slightly different tack, but perhaps related,recently FPLP staff have been receiving an increasednumber of letters from prisoners saying they didn't receivean issue, although upon checking the staff fmds the issueswere mailed. We can on\y conclude that someinstitutional mailrooms are "losing" the issues, althoughthey deny same when contacted. In January, two

institutions returned all copies of FPLI' to our officeclaiming they were undeliverable because they lacked theprisoners' DC Numbers on the mailing labels. Actually,every copy returned had the prisoner's DC number clearlyprinted on the label. A call to the' DOC central officeconvinced them to allow the Copies to be mailed to theWarden of each institution to ensure they were distributedto the proper prisoners.

Most recently the Department stepped into apotentially serious quagmire by rejecting an issue ofPrison Legal News beCause. it contained advertisementsfor companies that help prisoners' families get arou~d

phone rate gouging by prison systems.The above noted actions cannot be ignored.

Historically, the FDOC, like many prison bureauracracies,tends to constantly nibble with like actions to graduallyerode fundamental constitutional rights and the powerbases of prisoners and their supporters. It just so happensthat now the focus is on eroding the most fundamentalrights, upon which most other rights depend, and that isthose rights protected by the First Amendment. It canonly happen, however, ifwe let it.

Recently FPLAO has been receiving moredonations from its members. Much thanks goes out tothose prisoners, their family members, loved ones, andadvocates who have contributed to help make theorganization stronger. The budget is always very tight, sothe extra donations are always very helpful. In fact, theorganization needs all the extra donations it can get rightnow.

FPLAO has outgrown the limited office space itshad since the begiMing. It's time to expand so space is­available for more volunteer members to activelyparticipate in projects and op~rations. Instead of rentingadditional office space, which can be expensive, theFPLAO Board of Directors have decided the best optionwould be to purchase a mobile (construction site type)office. Such an office in used but good condition, can bepurchased for approximately $6,000.

We have an offer of rent-free property to set suchan office up on, located only two blocks from where themain office is now located on East Colonial Drive, rightoutside of Orlando. To get the office (actually the unitstaffwants has 3 rooms or offices in it and a restroom)­FPLAO members and supporters are being caned on tomake donations specifically for this purpose. Any amountdonation will help. Simple indicate on your check ormoney 'order, or in a note accompanying same, thedonation is for new office space. In future issues of FPLPwill be noted how this fundraiser is going and the amountcollect towards the $6,000 goal. If you haven't made adonation recently, please do so now so FPLAO'sproductivity and effectiveness can be increased withadequate space to work in for staffand volunteers._4 Bob Posey •

13 --------------"'---

-------------- FLORIDA PRISON LEGAl Perspectives --------------

The following are summaries of recent state and federal cases that may be useful to or have a significant Impact on Floridaprisoners. Prisoners interested in these cases should always read the full case as published In the Florida Law Weekly (Fla.L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fed.); Southern Reporter 2nd Series (So.2d); Federal Supplement2nd Series (F.Supp.2d); Federal Reporter 3rd Series (F.3d); or Supre~e Court Reporter (S.Ct.).

UNITED STATES SUPREMECOURT

Ewing v. California, 16 Fla. L.Weekly Fed. SI24 (U.S. S.Ct.315103)

The United States SupremeCourt has held that California's threestrikes law is constitutional. UnderCalifornia's three strikes law, adefendant who is convicted of afelony and has previously beenconvicted of two or more serious orviolent felonies must receive andindeterminate life sentence. Such adefendant becomes eligible forparole on a date calculated byreference to a minimum term, which,in this case, is 2S years.

While on parole for aprevious offense, petitioner GaryEwing was convicted of felony grandtheft for stealing three golf clubs,worth $399 a piece. As required bythe three strikes law, the prosecutorformally alleged, and the trial courtfound, that Ewing had beenconvicted previously of four seriousor violent felonies. In sentencingEwing to 25 years to life, the court .refused to exercise its discretion toreduce the conviction to amisdemeanor - under a state law thatpermits certain' offenses,known as"wobblers," to be classified as eithermisdemeanors of felonies - or todismiss the allegations of some or allof his prior relevant convictions.The State Court of Appeal affirmedhis conviction. The State SupremeCourt denied review.

On certiorari the U.S.Supreme Court held that Ewing'ssentjmce was not grossly

disproportionate and therefore doesnot violate the Eight Amendment'sprohibition on cruel and unusualpunishments.

Lockyer v. Andrade,' 16 Fla. L.Weekly Fed. SI35 (U.S. S.Ct.3/5/03)

In a second case involvingthe constitution~lity of California'sthree strikes law, the United StatesSupreme Court not only rejected anEight Amendment challenge asdiscussed in Ewing v. California, butalso rejected a challenge premised onan u~easonable application ofclearly established federal law.

California prisoner LeandroAndrade's argument to the SupremeCourt was thai his two consecutiveterms of 25 years to life for stealingapproximately $150 in videotapes isgrossly disproportionate in violationof the Eight Amendment. Andradesimilarly maintained that the statecourt decision affirming his sentenceis "contrary to, or involved anunreasonable application of. clearlyestablished Federal law, asdetermined by the Supreme Court."

Andrade relied upon a seriesof precedents from the U.S. SupremeCourt, i.e., Rummel v. Estelle, 445U.S. 263 (1980); Solem v. Helm, 463U.S. 277 (l983); and Harmelin v.Michigan, 501 U.S. 957 (1991), thathe claimed clearly established aprinciple that his sentence is sogrossly disproportionate that itviolates the Eight Amendment.

The Supreme Court statedthat section 2254(d)(l)'s "clearlyestablished" phrase "refers to theholdings, as opposed to the dicta,' of

the Supreme Court's decisions as ofthe time of the relevant state-courtdecision." In other words, "clearlyestablished Federal law" undersection 2254 (d)(l) is the governinglegal principle or principles set forthby the Supreme court at the time thestate court renders its decision. see:Williams v. Taylor, 529 U.S. 362(2000).

The Supreme Court admittedthat their precedents in this area havenot been a model of clarity, nor hasthe Court established a clear orconsistent path for courts to follow.

In sum, the Court held thatthe gross disproportionality principlereserves a constitutional violation foronly the extraordinary case. Inapplying this principle for 2254(d)(I)purposes, the Court held it was notan unreasonable application of theirclearly established law for theCalifornia Court of Appeal to affirmAndrade's sentence.

[Editor's Note: Each of the two casesabove was rendered by a 5-4 split of .the Court].

Connecticut Department of PublicSafety v. Doe, 16 Fla. L. Weekly Fed.SI40 (U.S. S.Ct. 3/5/03)

In a case involving sexoffender registration, the U.S.Supreme Court held COMecticut'sstatute requiring persons convicted ofsexual offenses to register withDepartment of Public Safety upontheir release into the cornmunity.andrequiring DPS to post a sex offenderregistry containing registrants'names, addresses, photographs, anddescriptions, does not deprive.

----------------14----------,....-------

---------------- FLORIDA PRISON LEGAL Perspecttves --------------

registered sex offenders of a "libertyinterest" and does not violate DueProcess Clause because officials donot afford registrants apredeprivation hearing to detenninewhether they are likely to be"currently dangerous." Further, the .Court held that Due Process does notrequire an opportunity to prove a factthat is not material to state's statutoryscheme.

Smith \I. Doe, 16 Fla. L. Weekly Fed.SI42 (U.S. S.CL 3/5/03)

In a second case regardingsex offender registration, the U.S.Supreme Court held that Alaska'sSex Offender Registration Act,which requires any sex offender orchild kidnapper incarcerated in stateto register with Department within30 days before his release providingvital information such as futureaddress and other specifiedinformation, is not punitive.Accordingly, retroactive applicationdoes not violate ex post facto clause.

u.s. COURT OF APPEALS

Smith \I. Siegelman, 16 Fla. L.Weekly Fed. C36S (I1 d1 Cir. 2/28/03)

The sole issue ip thisinterlocutory appeal is whether ninepublic servants, who are being suedfor money damages in theirindividual capacitites under 42U.S.C. section 1983, are entitled toqualified immunity with respect tothe claim that they violatedplaintiff's Fourteenth Amendmentrights by designating him a childabuser without· first affording him adue process hearing. The defendantsraised their qualified immunitydefense in a joint motion to dismissthe plaintiff's complaint. The districtcourt denied their motion; however,the circuit court reversed.

Smith claims that thedefendants violated his FourteenthAmendment right to due processwhen the public servants, whoworked at the Department of HumanResources (DHR), placed his nameand the DHR report on DHR's

Central Registry without providinghim the opportunity to presenttestimony and examine witnesses.Because Smith could not providesufficient facts that six of the ninedefendants partic:ipated in, or evenwhere aware of, child abuseinvestigation of plaintiff or placinghis name on sexual abuse registry,there, is no constitutional violation,and without a constitutionalviolation, there can be no violation ofa clearly established right to justifythe denial ofqualified immunity. .

Further, assuming that theremaining three defendants played asignificant role in decision to denySmith the sort of due process hearingplaintiff sought, these defendants, thecourt held, are entitled to qualifiedimmunity on due process claimwhere the plaintiff has notsufficiently alleged depriviation ofprotected liberty interest in not beingdesignated as a child sexual abuse.In other words, plaintiff had notestablished a liberty interestsufficient to implicate FourteenthAmendment . safeguards whereplaintiff had not alleged that, due tothe information on the registry, hehas suffered loss of employment,diminution of salary, or anything elsethat would qualify as some moretangible interest. Even if Smith'semployment and custody rights inthe future could be affectedadversely due to information onregistry, reputational damage alone is

.insufficient to constitution protectedliberty interest. Plaintiff must showthat defendant's conduct deprivedhim of previously recognizedproperty or liberty interest inaddition to damaging plaintiff'sreputation.

FLORIDA SUPREME COURT

Stale \I. Abreu, 28 Fla. L. WeeklyS16 (Fla. 119/03)

Section 90.803 (22), FloridaStatutes (1999) has been declaredunconstitutional by the FloridaSupreme Court to the extent that itallows the proseCutor to use at trial a

witness's testimony from a previousjudicial proceeding without ashowing by the prosecutor that thewitness is unavailable.

This section was heldunconstitutional on the ground that itviolates the Confrontation Clause ofthe Sixth Amendment to the UnitedStates Constitution.

Ashley \I. Slale, 28 Fla. L. WeeklyS18 (Fla. 1/9/03)

The Florida Supreme Court,in a revised opinion, has held that atrial court cannot bring a defendantback to court, vacate a sentenceimposed, and resentence him to whatamounts to a more onerous sentencewithout violating double jeopardy.In sum, once a "legal" sentence isimposed, jeopardy attaches and thedefendant cannot be resentenced to agreater tenn of imprisonmenL

[Editor's.Note: An additional caveatto the above decision needs to beexplored. The Supreme Courtindicated that once a sentence hasbeen imposed "and the person beginsto serve the sentence," that sentencemay not be increased withoutrunning afoul of double jeopardyprinciples. The term, "and theperson begins to serve the sentencc,"is problematic. There are conflictingopinions of when that event takesplace.]

Gethers \I. Slate, 28 Fla. L. WeeklyS44 (Fla. 1/16/03)

The Florida Supreme Courtaccepted conflict jurisdiction andheld that absent the execution of anarrest warrant, a defendant who is injail in a specific county pursuant toarrest on one or more charges neednot be given credit for time served inthat county on charges in anothercounty when the sentence county hasonly lodged a detainer against thedefendant. The filing of a detainer orhold does not have the same effect asexecuting or transmitting an arrestwarrant. A detainer is merely arequest to hold the defendant for thesecond·county or to notify the second

---------~------15----------- _

--------------- FLORIDA PRISON LEGAL Perspectives ---------------

county when the defendant's releaseis imminent so the second county canact.

BUller v. Slale, 28 Fla. L. WeeklyS90 (Fla. 1/30/03)

The Florida Supreme Courtanswered a question certified by theFifth DCA and held that a trial courtmay sentence a defendant to a prisonterm in excess of the statutorymaximum for an offense committedafter October I, 1998, where thelowest pennissible sentence underthe Criminal Punishment Codeexceeds the statutory maximum. Thecourt held there is no conflictbetween section. 921.002( I )(g),Florida Statutes (Supp. 1998), whichdoes not authorize, the trial court toimpose a sentence in excess of thestatutory maximum, and section921.0024(2), Florida Statutes (Supp.1998), which directs that where thelowest permissible sentence underthe Code excess the statutorymaximum, the sentence required bythe Code must be imposed. Thelowest permissible sentence underthe Code becomes the maximumsentence allowable.

Goad v. FDOC, 28 Fla. L. WeeklySI76 (Fla. 2127/03)

Florida prisoner Ollie Goadinitiated a civil action against theDOC in 1995, for injuries hesustained when he was attacked byanother inmate. In response to thisclaim, the DOC filed a motion forsummary judgment and a counter­claim under sections 960.293 and960.297, Fla. Stat. (Supp. 1994) torecover the costs of Goad'sincarceration.

Section 960.293 providesthat a defendant who is incarceratedfor an offense that is neither a capitaloffense nor a life felony o~ense isliable to the state in the amount of$50 per day for the costs ofincarceration. By the terms ofsection 960.297, the state mayrecover these. costs for the portion ofthe offender's remaining sentence'

after July I, 1994, the effect date ofthe law.

The question presented inthis case is whether 960.297 could beapplied retroactively because thestatute was not in effect at the timeGoad committed the criminaloffenses resulting in hisincarceration.

On appeal the First DCAconcluded that sections 960.293 and960.297 afford civil remedies that arenot the equivalent of criminalpunishment, and therefore do notviolate the ex post facto clauses ofthe state and federal constitutions.Conflict was certified with theSecond and Fourth DCA's.

The Florida Supreme courtresolved the conflict siding with theFirst DCA and held the CivilRestitution Lien and Crime Victims'Remedy Act did not .violate the expost facto clause nor did it violatesubstantive due process under either,the state or federal constitutions. '

DISTRICT COURT OF APPEAL

Rial v. Slale, 28 Fla. L. Weekly D7(Fla. 3d DCA 12/18/02)

Christina Rial appealed thecircuit court's order of revocation ofprobation and community controland sentence. Rial entered into aplea agreement where she pled guiltyto the charges against her inexchange for two years communitycontrol followed by 10 years

. probation, with a special conditionthat she complete the Start programand then enter the Passagewaysprogram.

Rial completed the Startprogram then entered thePassageways program. Shortlythereafter, she asked to leave theprogram. (Both Start andPassageWays programs are non­secure mental health facilities.)Rial's probation officer advised hershe was in violation of hercommunity control, and a revocationand a revocation hearing soonfollowed. Rial was found inviolation of her conditions' of

community control and sentenced to30 years in prison.

On 'appeal, the DCA heldthat the trial court erred in findingthat Rial violated probation andcommunity control by abscondingfrom the Passageways programwhere the condition did not requireRial to complete the program, butonly, that she enter it. The DCAreversed the order of revocationsince the condition that Rial enter aprogram was without a requirementofcompletion or a fixed time limit.

Amos v. Slale, 28 Fla. L. Weekly049 (Fla. 4th DCA 12/18/02)

Florida prisoner Tyra Amosappealed the denial of her Rule 3.800motion that alleged her sentence wasillegal because the jury did not makespecific findmgs that (I) shedischarged a weapon, and (2) suchdischarge caused great bodily harm,which findings are necessary totrigger an enhancement under section775.087(2)(a) 3. Amos was chargedwith aggravated battery with afirearm.

The DCA held that wherethe jury did not find great' bodilyharm, enhancement of sentencebeyond ,statutory maximum foraggravated battery based on thedischarge of firearm causing greatbodily harm violated U.S. SupremeCourt's holding in Apprendi v. NewJersey. The DCA reversed forresentencing in light ofApprendi.

Plule v. Slale,. 28 Fla. L. Weekly0308 (Fla. 2d DCA 1124/03)

The Second DCA held whena defendant has been granted relieffrom initial sentence imposed underunconstitutional 1995 guidelines, thatupon resentencing the trial courtcould impose a habitual offendersentence notwithstanding the fact aguideline sentence was originallyimposed.

NOTABLE CASES continued ...

---_---------__._--16----------------

------------- FLORIDA PRISON LEGAL Perspechves -------------

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Johnson v. Siale, 28 Fla. L. Weekly0116 (Fla. 4th DCA 12126/02)

. The Fourth District Court ofAppeal has analyzed the question ofwhether fundamental error Can alsobe harmless error. The DCAreasoned that an error which is so .significant as to be fundamentalunder Maddox v. State, 760 So.2d 89(Fla. 2000) cannot also be harmless.

fmding .that the defendant was inpossession of a firearm. Further, theDCA held a conviction does notrequire a showing that the ftiearm isloaded or operational.

[Editor's Note: This writer has notfound a Florida Supreme Court casethat has found an error to befundamental, but harmless. The,DCA referenced a sister district'sdecision that concluded that theFlorida Supreme Court foundfundament;al error to be subject to ,harmless error review. In Reed v.State, 783, So.2d 1192 (Fla. 151 DCA2001), the First DCA cited State v.Clark, 614 So.2d 453 (Fla. 1992) forthe proposition that the high courtconsidered the error at issue to beboth fundamental and. harmless.However, just as the Fourth DCArecognized, footnote 1 in Clarksuggeststhat the court considered theerror to be a "constitutional" errorrather than a fundamental one. Theassumption that fundamental errorscan be harmless may have arisenfrom the fact that constitutionalerrors, which are' not necessarilyfundamental errors, can be harmless.State v. DiGuilio, 491 So.2d 1129(Fla. 1986).]

'Hastings v. Krischer, 28 Fla. L.Weekly DI56 (Fla. 4tIJ DCA 1/2/03)

A petition for writ ofmandamus seeking to compel stateattorney and circuit court to "obeythe law" citing failure to comply withprocedural requirements of habitualoffender statute is not av~ilable toremedy' alleged errors in criminalcase where avenues of direct appealand post conviction relief 'provideadequate remedy. •

18 ----,--.,..-----------

[Editor's Note: It is noted here thatChapter 99-188, Laws of Florida,was declared unconstitutional inviolation of the single subjectrequirement of Art~ III, section 6 ofthe Florida Constitution by theSecond DCA in Taylor v..Slale, 818So.2d 544 (Fla. 2d DCA 2002).Subsequently, the Legislature passedChapter 02-210, Laws of Florida, inan attempt to cure the defect,. and tocircumvent the Taylor decision.Recently, the Second DCA'declaredthat legislative actionunconstitutional in Green v. Siale, 28Fla. L. Weekly 0343 (Fla. 2d DCA1/31'/03)

Akins v. Slate,' 28 Fla. L. Weekly0594 (Fla. 5th DCA 2/28/03)

Florida prisoner AnthonyAkins appealed his conyiction' forarmed robbery with a firearm ordeadly weapon. Akins argued that.his conviction should be reversedbecause the state failed to presentany evidence that the item he carried"was designed or may readily beconverted to expel a projectile by theaction ~f an explosive." Akinsfurther argued that because there wasno evidence to establish that hepossessed a firearm, he could not beconvicted as charges. The DCA didnot agree.

The DCA found that thedirect evidence and thecircumstantial evidence in the casesupported the conviction. The DCA

noted that it is not fatal to theprosecution if the state does notintroduce the weapon into evidence.Eyewitness testimony that thedefendant ·possessed a firearm is

. sufficient evidence to support a

sentenced on the robbery chargebecause the habitual violent offenderstatute is tinconstitu~ional. The DCArejected this issue because theunconstitutionality of the habitualviolent offender statute was curedretroactively. However, the. DCAdid certifY the question of whether

, the curative statute passed in 2002should be applied retroactively.

Fusion v. Siale, 28 Fla. L. WeeklyD572 (Fla. 2d DCA 2/28/03)

Florida prisoner CharlesFuston appealed the denial of hisRule 3.800(a) motion to correct anillegal sentence. The State concedederror that the minimum mandatoryterms imposed at a secondsentencing' hearing were illegal, .andthe DCA reversed. Yet, there ,ismore to this case that needs to bediscussed.

While, Fuston's case waspending on appeal. the Departmentof Corrections (DOC) sent a letter tothe trial court claiming that the trialcourt had failed to impose minimum,mandatory terms and that it wasrequired to do so. The DOC took theposition that the trial court had nodiscretion but to impose ten-yearminimum mandatory terms for thefirst two of Fuston's offenses and afivl?year minimum mandatory termfor the third offense. This positioncontradicts the Supreme Court'sdecisions in Burdick v. Slate, 594So.2d 267 (Fla. 1992) and State v.Eason, 592 So.2d 676 (Fla. 1992).

The DCA recognized that theDOC regularly sends letters to thetrial courts. The DOC, however, hasno power to reverse a sentence, or todisobey' a sentence, when it is Jiotambiguous. The DOC has noauthority to impose a more oneroussentence upon a'prisonet than thesentence actually imposed by thetrial court, said DCA C~ef JudgeChris Altenbemd. If the Statebelieves a sentence is erroneous, it isobligated to preserve this issue andappeal it to 'an appropriate appellatecourt. Otherwise, the sentenceimposed by the court stands, and theDepartment must comply with thatsentence.

Oliver v. Slate, 28 Fla. L. WeeklyD585 (Fla. 51b DCA 2/28/03)

. Florida prisoner Tony Oliverappealed his judgment and sentencearguing that he should be rl?

NOTABLE CASES continued ...

------------- FLORIDA PRISON LEGAL Perspectives -------------

I....NE_W_S_B_RIE_F_S INATIONAL - A new study releasedby Amnesty International USAshows that while blacks and whitesare murdered in roughly equalnumbers in the U.S., those whomurder white people are six times aslikely to be executed. The statisticalanalysis found that of 845 peopleexecuted since states resumed capitalpunishment in 1977, 80% were put todeath for killing whites, compared to'only 13% who were executed forkilling blacks. Similarly, severalstate-Ievel studies done in the pastyear have like results. In Illinois,juries have been three times as likelyto sentence someone to death if thevictim is white rather than black. InMaryland, a study showed that the

.death penalty is four times as likelyto be imposed when the victim iswhite rather than black. Otherstudies in New Jersey, NorthCarolina, Pennsylvania, Texas, andVirginia have also shown that therace of the victim is a factor inwhether the death penalty isimposed.[Source: USA TODAY, 4/29/03]

NATIONAL - On Jan. 25. at aconference for prison medicalofficials in San Antonia, TX, theCeriters for Disease Control andPrevention (CDC) released a studythat bad been commissioned byCongress that shows prisons havebecome a primary incubator for someof the nation's worst diseases. The"report, Morbidity and MortalityWeekly Report, shows that in 1996at least 1.3 million prisoners werereleased from jailor prison who wereinfected with the deadly diseaseHepatitis C. That number accountedfor 29% of all cases estimatednationwide. Additionally, in 1996released prisoners accounted for 35%of the 34,000 Americans withtuberculosis. The CDC called on all

states to test their prisonerpopulations completely.[Source: New York Times, 1128/03]

NATIONAL - According to reports.a new virulent antibiotic-resistantform of staph infection appears to berapidly spreading through jails andprisons. In Los Angeles Countymore than 1,000 jail prisoners havecontracted the painful, aggressive,and highly contagious skin infectionmimed methicillin-resistantstaphylococcus aureus, or MRSA. In2002, 57 L.A jail prisoners bad tohave surgery· to remove .MRSAdiseased tissue. The infection canspread into bones and blood vessels.Other states have also reported casesof the disease among their prisonerslast year. Over 200 prisoners inTexas, 90 in Georgia, 60 inMississippi, 20 in Pennsylvania, and9 in.Tennessee.tested positive for th~

infection.[New York Times, 2/4/03]

NATIONAL - In a bitterly split 5 ­4 decision the U.S. Supreme Courtruled on Apr. 29 that legalimmigrants who face deportation forpast criminal convictions can bejailed and denied bail while awaitingthe deportation decision by theInunigration and NaturalizationService (INS). The ruling by theS.C1. applies to foreigners who are"permanent residents" often knowJasgreen-eard holders, and who havebeen convicted of a crime that canresult in deportation. Under a 1996law, when green-card holders arereleased from prison they can betaken into custody by the INS whileofficials decide whether to deportthem. The high Court's rulingupheld that law and establishes thatsuch .immigrants can be detainedwithout a hearing ·to determinewhether they are dangerous or aflight risk. Four ofthe Court's

justices joined in a·caustic dissent tothe majority. ruling in the caseDemore v. Kim.[Source: AP, 4130/03]

AL - A medical consulting firmhired to review and report on thequality of medical care provided toprisoners at the LimestoneCorrectional Facility, found"dangerous and extremely poorquality health care" being provided.Medical services at the facility arecontracted out to .NaphCare, aBirmingham-based private company.NaphCare disputed the findings ofthe consulting firm, which alsodocumented that the death rate fromAIDS at Limestone is more thantwice the national average in prisons.[Source: USA TODAY, 2/14/03]

AZ - The U.S. District Court inPhoenix struck down an Arizona lawthat made it a crime for prisoners tomake even indirect use of materialsgenerated off Internet websites. Thelaw bad prohibited mailcorrespondence with websites. TheCourt was not persuaded that the lawwas constitutional by the AZ DOC'sargument that even indiiect contactwith the Internet by prisoners couldresult in fraud of the public,prisoners contacting minors, ormaking escape plans. '[Source: New York Times, 12/17/02]

CA - The U.S. District Court forNorthern California bas issued apermanent injunction against the CADOC's enforcement of a policy thatprohibited prisoners from receivingmail that contained materialgenerated from Internet websites.The Court found that the policy, asapplied. could not pass any prong ofa four-prong test established by theSupreme Court to determine thereasonableness of prison reguJationstbatrestrict First Amendment rights.

----------------19----------------

--------------- FLORIDA PRISON LEGAL PerspectIves ---------------

[Source: Clement v. Calif. Dept. ofCorrections, 220 F. Supp.2d 1098(ND CA 2002]

CA - In January California prisonofficials held a public hearing on aproposal that would allow the prisonsystem to take 55 % of all stateprisoners' income, whether suchincome is earned ·in prison or sent toprisoners by their families. The CADOC already takes 22% of prisoners'income. The money, claims DOCofficials, would go to victimcompensation funds. Since 1992 $59minion has been taken fromprisoners for such funds. Only one­third of prisoners' income comesfrom prison jobs that pay 15 cents anhour, the rest comes from theirfamilies or friends.[Source: L.A. Times, 1/15/03]

CA - Two Pelican Bay State Prisonguards were sentenced to federalprison on Feb. 6 for conspiracy toviolate. prisoners' civil rights.Former guard Edward Powers wassentenced to 7 years in prison,followed by 3 yrs. unsupervisedrelease, and fined $25,000. JoseRamon Garcia received 6 years and 4months in prison to be followed by 3yrs. unsupervised release. Bothguards were convicted of havingprisoners a~ck child molesters, sexoffenders, and other prisoners whohad problems with the guardsbetween 1992 and 1996. One formerprisoner testified that Powers hadoffered to give him a half-ounce ofheroin and half-ounce of crystal methto stab another prisoner and evenfurnished a knife for the job. PelicanBay has a history of corrupt prisonguards abusing and even killingprisoners for sport.[Source: L.A. Times, 217/03]

CT - In Feb. the Peanut ButterBandit was sentenced to 14 moreyears in prison following a guiltyplea for escaping from Connecticut'shighest security prison in 1987.Fredrick· Merril~ 56, got' his nuttynickname for an escape attempt in

1968 when his mother brought him agun, money, and a handcuff key in ajar of peanut butter. It's not knownwhether the PB was Jiffy, or smoothand creamy or crunchy style.[Source: USA TODAY, 2/8/03]

FL - On Jan.25 Rudolph Holton wasreleased from prison after spending16 years on Florida's death rowwhen it was finally determinedthrough DNA testing that theevidence against him didn't hold up.Holton was the IOJId person who hasbeen exonerated and freed from thenation's death rows since 1973. Hewas the 25th Florida death rowprisoner to have been exoneratedduring the same period. Holton'srelease was the result of his legalrepresentatives from the tax-payer­funded Capital Collateral RegionalCounsel, who represent indigentdeath-sentenced defendants inFlorida. With Holton's releaseassured, Fla. Gov. Jeb Bush, as partof his state budget proposal this year,called on the legislature to eliminatethe Capital Collateral RegionalCounsel offices and attorneys. Bushclaimed this would save the state$3.8 million a year.[Source: Lakeland The Ledger,2/8/03]

FL - During April argument washeard before the I Ith Circuit Court ofAppeals in the case Johnson v. Bushwhich is challenging the validity of aFlorida law that permanentlyprohibits citizens with a felonyconviction from voting even afterthey have served their sentence. Thelawsuit, brought by the BrennanCenter for Justice at New YorkUniversity School of Law, assertsthat Florida's felondisenfranchisement law violates theU.S. Constitution and the VotingRights Act. An· amicus brief hasbeen filed in the case by 14 people,including numerous former U.S.attorneys, who argue the law isunconstitutional and raciallydiscriminatory. Originally enacted inI868 and re-enacted in 1968, the

amIcI brief argues that thedisenfranchisement law was adoptedto provide a means of excludingblacks from the voting booth. Oneproponent of the law· in 1'868 notedthat the purpose of adopting it was tokeep Florida from becoming"niggerized." Today, almost one infive black males in Florida aredenied the right to vote because offelony convictions and thedisenfranchisement law.[Source: St. Petersburg Times,4/6/03] .

FL - According to a report releasedby the Florida Department of LawEnforcement in April, last year wasthe 1I~ straight year that crime hasdropped in the state. There was a 1.2percent drop in crime last year fromthe year before. .The I-eport showsthat Florida has the lowest crime ratesince 1972. Crime rates arecalculated on the number of crimescommitted per 100,000 people.[Source: Fort Myers, The NewsPress, 4117/03]

FL - A bill that will allow an.increase in basic phone rates passedin both the Florida House and Senateand Gov. Jeb Bush stated he wouldsign it into law following the regular2003 Legislative session. Leadingtelecommunication firms hired atleast 150 lobbyists to push forpassage of the law and contnbutedmore than $5 million to politicalcampaigns and parties before thesession started. Under the new law,monthly basic phone rates forFloridians could jump statewide frombetween $3 to $7.50 during the nextfour years and then increase as muchas 20 percent per year after that.[Source: AP,4/27/03]

IL - Illinois Gov. Rod Blagojevichstated in April that he will not lift athree-year moratorium on stateexecutions even if the Legislaturepasses bills intended to correct thesystem. He said the changes stillwould not ensure that an innocent·person won't be executed. Former

20-- _

PAPILLON FloridaP.O. Box 14984

Gainesville, FL 32604-4984If you want tl! send the pieceS themselves, you

must send a description and media, name andinstitution along with a SASE FIRST·so we can do 11

notariUd receipt form to send to you. We wanteverybody secure in the knowledge their work will ..be safe in our care. YOU WILL HAVE TO HAVEA PLACE FOR US TO SEND THE WORK .AFTER THE SHOW OUTSIDE THE PRISONS.THE DOC WILL NOT ALLOW US TO SENDTHE PIECES BACK IN...unless they ate simplepen and ink drawings or water colors that meet thesize restrictions for mailing.

Families can call me at (352) 466·3706 or FAX(352) 4660705 or email Kathleen @KATHl.EEN PAPILLON@hotmail,com

, Three professional Florida artists will judge theshow and give ribbons for top three in each mediaand a best in show! Good Luck and please spreadthis information around

Prisoner Art .Exhibit

For the first time in the state of Florida therewill be an Art Exhibit exclusively for prisoners. Theshow will be from December 12,2003 until March7, 2004 in the historic Gov. John Martin houselocated at 1001 DeSoto Park Dr., Tallahassee FL.

We ate asking for photos ofwork or slides, so wecan select the best representative work to show. Weneed,these mailed to us by July 30. 2003. They haVerestrictions: no nudity, 'no violent themeS, and no

'" religious iconography. We expect to haVe paintings,drawings, wood sculpture. collages, pen and inksketches. Of course no sales are allowed. You cansend photos, slides, or the pieces themselves, to usat:

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PrisOners: If you would like your family toreceive Information about the FAIRCampaign and an Action Packet. sendtheir name and address to the above.

Are you tired of the high cost, ofthe collect-call phone rates beingcharged the families and friendsof Florida state prisoners?FPLAO intends to do somethingabout those exorbitant rates, butyour help is needed. If you haveaccess to the Internet, log on toww.fplao.org to participate in theFAIR Campaign online. You canalso write and receive a FAIRCampaign Action Packet, toparticipate in the effort to achievelower rates. Together, we canmake a difference. Write for yourAction Packet today and visitwww.fDlao.org to get'lnvolved.

VA - Virginia haS started collectingthe DNA of all persons who arecharged with a violent. felony in thestate. If the person is acquitted attrial or the charge is later dropped,the DNA data will be expunged from

. the state's database. Currently,Virgima has over 200,000 DNAsamples on file.[Source: AP, 1/1103] •

Gov. George Ryan halted executionsin that state after several death­sentenced prisoners were found tohave been wrongly convicted. At theend of his tenn as governpr in J~.,

Ryan commuted the sentenced of all167 death-row prisoners; most nowface lifewithout parole.[Source: USA TODAY, 4/25/03]

IL - The llIinois Supreme Courtruled in Feb.' that sex offenders asyoung as 12 years old can be labeled"sexual predators'"and be required toregister as same the rest of their livesunder IL law. Three of the fivejustices on' the Court, however,called on the legislative to rewritethe law saying it is inconsistent w~ .reason, logic and common sense.[Source:· Washington PotU, 2123/03]

MD - There are currently over23,000 prisoners incarcerated in theMaryland prison system and thesystem requires a $1 billion y~ly

budget. In Jan. Gov. Robert Ehlichappointed Mary Ann Saar, a fonnerprobation officer, as head of theprison system'in ~at state.[Source: Washington Post, 1/23/03]

PA -The Pennsylvania state prison. system population recently topped

40,000 for the first time. The state's26 prisons are now operating at115% of capacity. The PADOCSecretary, Jeff Beard. said hisdepartment would be asking theLegislature to reduce sentences for'drug and alcohol offenders this year.[Source: Philadelphia Inquirer,1/27/03]

_______________ 21 _

FLORIDA PRISON LEGAL Perspectives --------.....,.------

(Soun:es: AudilorOCllCllll Reports tl13539l11ld 02.095: FPC reconIs: AP arnela. 5112103)•

FPC Chairman Resigns asFDLE Launches Criminal

Investigationby Bob Posey

police, may be investigation concerning Henry and theCommission, some facts have been discovered by staff of FloridaPrisoners' Legal Aid Organization (FPLAO). FPLAO has been conducting its own investigation of FPC activities for the past twoyears as part of a -project launched May 1a to increase the numberof parole releases and decrease the number of parole revocationsfor technical violation in Florida, while focusing public attention onFPC'activities.

An examination of FPC records after Henry took .over asChairman reveals that little changed under his watch, and somethings may have got worse. A review. of FPC financial recordsbetween Jan. 1998 and May 1999 revealed purchase.requests hadnot been. properly completed,purchase order dates not precedingthe dates goods or services were received, transaction records notbeing kept as required by state law, and amounts being paid forgoods or services in amounts greater than agreed upon.

Further investigation of records up to 2002 found Commissionemployees receiving pay raises with no justification of the raisesbeing docum'ented as required by state rules, and some employeeswho left the Commission were overpaid for unused leave time. Astime went on the problems got worse. FPC records showed thatsome employees were being paid travel expenses for. travelbetween their homes and office, others received travel expenses fortravel between home and other locations. Instances were foundwhere· employees. were using .state - owned cell phones to makepersonal calls and not reimbursing the cost of the calls. Evidencewas .found. where state - purchased property was being declared"surplus" and disposed of by a single FPC employee, contrary tostate law, and Commission property not being properly accountedfor or insured for loss, damage, or theft.

Perhaps the most damaging discov.ery was the fact that in June2000, the last month of the fiscal year, instead of reporting and •

.turning bac.k over to the state treasury unspent money from theFPC's budget, Henry approved "merit awards" of between S200 toSI,OOO for 144 of the Commission's 159 employees. Six monthslater he approved 15 more "merit awards" totaiingSI5,223 to theremaining 15 employees who didn't get an award in June of thatyear. The total amount of the "awards," which are only suppose tobe given for outstanding performance and achievements above andbeyond normal job expectations, was more that SI05,OOO.. Againcontrary to state rules and laws those awards were not reported tothe state Department of Management Services, which reports suchawards to the Legisiature each year. Nor was a S8,364 alleged costsaving suggestion award given to one employee in Dec. 2000reported to OMS. A later calculation of that aware, after it wasbrought to the attention of the Auditor General's Office, showedthat the suggestion was woith a maximum award of$446.

Additional problems concerning Henry and Commissionemployees have been brought to the Auditor General's attention·now that cannot be discussed at this time considering the pendinginvestigation by the FDLE. As the FPLAO Parole Projectcontinues, further information concerning the FPC will bedisClosed. Henry's resignation and the FDLE investigationpromises to be just the first ripple in a wave of change bearingdown on the Commission. .

On May 12, 2003, mainstream media sour~es briefly reported theresignation of Florida Parole Commission (FPC) Chairman JimmieL. Henry. According to those sources, Henry's resignation,effective on May 9, only three days before the Florida Departmentof Law Enforcement confirmed it had initiated an investigationinvolving the Commission and Henry based on information relayedto law enforcement officials by the state Auditor General's Office.

Media inquiries to the Governor's Office were ~tymied by Bushpress secretary Alia Faraj saying only that the governor. hadaccepted Henry's resignation, and that she had no furtherinformation about the decision. FDLE spokesman Al Denniswould only comment that the FDLE is investigating a "matter"concerning the Commission and Henry. Dennis declined to be morespecific. The sparse media reports concluded for the public that it"wasn't clear" that Henry's resignation was related to the FDLE'scriminal investigation.

Henry began his career in state government in 1979. He startedout with the Florida Commission on Human Relations and movedon to work with the state Comptroller as a financial investigatordealing with cases involving theft and abuse of state funds. In 1987Henry was promoted to the position of Senior Cabinet level mattersrelated to executive clemency, he later became Chief Cabinet Aide.In 1997 he was appointed to the Florida Parole Commission and in1998 became the Chairman of the Commission. In that positionHenry had statutory authority and full responsibility overadministrative functions, including finances, of the Commission.

Although attempts were made to cover it up, Henry took overthe top position In the Commission following a string of scandalsthat exhibited an ingrained core of corruption within the agency...For the past two decades, ever since guideline sentencing policiesreplaced indeterminate parole-eligible sentencing for most crimesIn 1983, the FPC has struggled to maintain its existence. Faced witha diminishing parole-eligible prisoner population of approximately5,600 people, and with Commission activities increasingly being·duplicative of functions also being performed'by the Department ofCorrections, the Commission, according to its many critics, hasbecome a waste of taxpayers' money as an agency that has outlivedits purpose and usefulness.

Henry was. appointed to the Commission at a time when it hadbecome obvious the agency was long overdue a completereorganization, if not outright elimination. In 1996 and 1997 theCommission was forced to tight tooth-and·nail to counter badpublicity generated·by revelations· of political favoritism in paroledecisions, the mistaken release of prisoners, sexual harassmentcharges against a parole commissioner, and Commission employeesbeing paid large slliaries for work never done. Legislative attemptsto abolish the anachronistic agency were unsuccessful, with· oneformer legislator, Rep. Robert Sindler, commenting in 1996 that,"They have. a lot of politiCal connections and they call them in.They are a master at surviving." With Investigations b~ing

conducted by the state ComplCOlIer's Office Into mismanagementand misappropriation oftaxpayer money by the Commission, Henrybeing appointed an FPC Commissioner at that time from his topposition at the Comptroller's Office was either an ideal choice or anodd decision in light ofdeveloping events.

While the mainstream media appears to have been stonewalled.or silenced about what exactly the FDLE, Florida's version of state

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Mr. Hansch isspecifically looking for ,persons that remember alarge support column .which obstructed theirview during their trialproceedings.

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'Moving?: Trans{erred7,_I~' ~QtI' pI6~~,tA-;":C~hj~!~f~!.tlttji;:elit~b$e,d 'al;fdre~S' chal1g~,' :fo!'m'.sQ ,tljat,Stfi~~ i~~'§r;~h.{pl'­~rQlIs-:and mailin 'list'cali be,a -aated:'Tl1anR--'" oult;':,,:,:Y~;lo' ; " .~'

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All inmates that wereconvicted in OrangeCounty, FL, after a jurytrial during the timeframe of January 1991­December 1996 in CourtRoom P, Room 215, All correspondence will(Alice Blackwell White's be kept confidential, andCOllrt Room) are ' all inmates that respondelicouraged to write Mr. will be kept informed ofPeter K. H. Hansch" P.O. any possible futureRox 76249, Ocala,FL litigation regarding this3448t-0249. matter.

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