Fplp Nov Dec 1999
Download original document:
Document text
Document text
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
FDOC HAZARDOUS TO PRISONERS HEALTH By Mark Shenvood and Bob Posey • Thirty percent of the 129 doctors who provide medical care to prison· ers incarcerated in the Florida Department of Corrections (FDOC) have marks on their records ranging from malpractice to fraud. The FDOC rarely fires or disciplines doctors it hires. even in cases where negligence causes prisoners to die. • Dozens of Florida prisoners have died since 1994 after receiving inadequate health care. • Recent Slate and federal legisla· tion have made it almost impossible for prisoners to successfully sue the Department of Corrections when subjected to medical malpractice, even when it results in disfigurement or life-threatening complications. Even if legal action was successful, prison doctors are shielded from personal liability and taxpayers are required to. cover any legal judgments against the doctors. PLP • At least one in every nine Florida prisoners suffers from severe mental illness which prison guards are not trained or equipped to deal with. The above are just a few of the findings of a special investigative repon conducted by the 81. Petersburg Times recently. In a three pan series lhat made headlines in that Centrol Florida newspaper during lhe month of September, facts and statistics were revealed about the Florida prison system that had been concealed from the public. While prisoners in Florida, and their families, have been very aware that die quality of medical care has been going downhill for several years, and while taxpayers have been paying more and more, the Depanment of Corrections has been able to keep lhe true state of affairs from public scrutiny. The special report by the Times, which ran from September 26lh INSIDE THIS ISSUE: GRAND JURY CONVENED IN VALDES' MURDER A SYSTEM OF JUSTICE AIDS, HIV RATES HIGHER IN PRISON FDOC SECRETARY MOVES TO RESTRICT MEDIA ACCESS NOTABLE CASES THE STATUS OF PAROLE IS A CONSTITUTIONAL QUAGMIRE FSP PRISON GUARD ARRESTED IN DRUG STING OPERATION through the 28th, shows that the DOC has been 8 dumping ground for troubled physicians. Doctors who have repeatedly losl malprac· tice claims, been found guihy of sexually abusing their patients, been found guihy of fraud, and who only have temporary or restricted licenses, or who have been disciplined by the State Board of Medicine, are a bargain for lhe DOC. And that appears to be the real incentive for the DOC, which is con~ stitutionally required to provide at least some health care for the 68,000 prisoners in its custody. Life and Death Cost-Cutting The average doctor straight out of medical school averages $120,000 a year. The DOC pays far less, with salaries for the doctors it hires to treat prisoners running from S72,OOO to 586,000 a year. \Vilh prison doctors being fully indemni· fied by tbe stale, lhe prison system FPLP offers a safe haven for troubled doctors by allowing them to avoid malpractice insurance Ihat increases when a doctor has problems. David Thomas, the DOC's chief doclor, admits that economics is a factor in the quality of doctors hired by the department. But that does nOI trouble him. "Clearly, you would prefer people that don't have any problems," Thomas said. "But I do think Ihere is a place for welltrained people who have made a mistake, and we may be wellplaced to do that because we have a degree of control over our doclors that the outside world does not." The Times reported in Ihe first of its investigative series that dozcns of prisoners had unnecessarily died aner receiving inadequate mcdical treatment since 1994. Some critics question the reasons why the DOC is so willing 10 hire dociors wilh questionable histories and put them in charge of a $225-million heallh care system, and the lives of prisoners. "Those numbers arc pretty atroCiOllS", said Randall Berg, a lav"'Yer with the Florida Justice Institute in Miami. "it shows they really don"t carc what level of care is provided they're operating on the cheap.'" Shady Physicians The Times investigation discovered tnat of the 129 doctors employed by the DCC sixteen have had 10 payoff previous medical malpraclice claims in Florida, some more than once. Fourteen prison doctors - or II percent - have disciplinary records with the state medical boards, a relatively rare distinction where last year less than half of 1 percent of the nation"s doctors were disciplined by a medical board. Seven of the DCC doctors have been disciplined more than once by medical boards and nine are listed in a book entitled Qucs- F.P.L.P. VOLUME 5, ISSUE 6 FLORIDA PRISON LEGAL PERSPECTIVES POBox 660-387 Chuluota, Florida 32766 tionable Doctors Ihat is put out by a national consumer group. Three of the DOC's doctors have a history of sexual misconduct with patients. Fifteen of the DOC's doctors nre practicing on temporary or restricted licenses. Because of an exception in Florida's law, doctors who have restricted licenses or have not passed either the Florida or national medical exam, but arc licensed in another stale, may work in Florida"s prisons. Overall, only one-third of all the DOC's doctors are certified in a specialty, a requirement generally necessary to work at a hospital or for an Publishing Division of: rI.ORJD~ 'IUlIO~ ..tS u:c.n ..ID O.c.u<l%Ano.... (407) 568-0200 Web: htlp:J/memberuol.com/fplplfplp.hlml FPLAO DIRECTORS TERESA BURNS BOB POSEY DARRYL McOLAMRY DAVID W. BAUER, Esq. FPLPSTAFF TERESA DURNS Publiwr Editor BOB POSEY Layout Editor JOliN OAKS Reselreh SHERRl JOHNSON HMO. Between 1996 and 1998 the DOC admits it only reported three doctors to the state medical board. Two of those doctors, Abigail Rosario~Rivern and Frederick Yontz, are still employed by the DOC even after being reported 10 the medical board for negligently allowing prison· ers in their care 10 die. The department is even willing to hire and place in positions of authority doctors who commit crimes. Dr. Robert Briggs, the chief medical executive at Charlotte Correctional Instilulion, plead guihy in federal court in 1981 to filing fraudulenl Medicare payment invoices. . Other examples of questionable doclors noted in Ihe Times report include Dr. Effong Andem. He was disciplined in 1994 by the army on charges that included "lack of attenrion lo.dctail, failure to assume responsibility for patients, failure 10 admit or recognize errors, and failure 10 learn from mistakes." The next year, he was hired by the DOC. Dr. Mireya Francis was disciplined by the Florida Board of Medicine in 1993 for dispensing drugs to mentally ill patienls without first perfonning psychiatric evaluations. In 1995 she was again disciplined for lying in her application about being de- l~C. A 50l(e)(J) Non Profil Organizalion BRIAN MORRIS Admin. Auil. LISA FAULKNER TRt\CIROSF. ······..········;:PLp·Aj)V·~s·oit;·, ..jjOARj)·_···..·_..· WILLIAM VAN I'OVCK PillLlP BAGLEV - SHARON SIMMONS TERRV VAUGHN. MICHAEL LAMBRIX AUN J. COlTON - JAMES QUIGLEV JAMES TA VLOR· JUDIE IlIGIlTOWER CARL WELLS -GLENN SMlTfl MARK SHERWooO· F.ARN HOWARD UNOA GOITUEB· SUSANNE M. MANNINO JANE PRATI· PAUL ADAMS KlM8ERL Y PEOPLES· OSCAR HANSON JAMES r-.wOR· ENRIQUE OIAl PR1SO~ LECiAL POOI'ECl1\'E$ 1. publ.o.o.d bomIInIIIly by FIarid.P>l........ l..<pIAid 0.......1-. r.... "2)2 E. C. . . .l 0. . o.I&f>Clo.. fl lllll. Maiti<ll Ad<!I.., FfL..D. , FLORID.. o f_"._ Do. 66O-ll1. a..1uCIt.o. FLJ1766 .1'"" Pfof. publk&, ... on ,lit f\ot>;!. ju"a i<b "'" ..,al of ~ , "..id. r", ,nf",...,.." .n<! ,.........., ,rr"''''1 prl.....' .. ",.. f.""ll Me.d, ond 1 01 _ .. "'" '1Ie.~ pubbc of Florida.nd "'" US Redun 0( ....... ond t«>Ii .... ...Ito or r"';;ly'i... ci';l nllll.. ilnp'cMns <OoId of FPLP ;, priooo <Ii .IId 'l".....' .. ,""r. uo:I ~ ~Ied ""'" " " " fOt 1"'""",",," 'nd P'_inlt<C.... "'ob,h'y of pr,"" "rr""I .. oppc!fl_.... ... M< olI ,"u.' I'PLP" d<upcd to..s.1rn> Th< lnr"'''''' in rrv <10<..... - . . I , "fI«l ,II< oP- of ,lie JJ PubloWloo Df F,U i. ...... ~"'bl. Y"". ,II< "odn ond ouppon... .--.. ...ocriplion .... 1......1............. R''1u..''d dooo<lom r", • .... ,. lIIboaiprioo $6-priM><ICI .. IIJ·~.......... no1•.lIi'yl FPU' ,<Idm ond "'I'PCJII'<' in""'" III ""","tNt•• nkle.. new, ;.for""' ooJ ....... lono rill I"""bl. pubI""';"'" s..bo<ripoioo dOIIollon ill b< K~ b,,lot ",bocriW. ,....1" or 'br ""'... Ii... of FPI., fl'U"o . ,. OI, "'tN,........ OI. _.......,.. ,,,Io"'tt' ",IT .'MOI '01fIO"'d '0 ' .Me. Duo: III ........ of "";1 • ..: ...IT ......>pond..... aMol bo,~ ......... _ .......u..,.;.,., P.. nuwo. i, .......«1 '" '<fin" rpu .oI>d any 11Id;ca1<d .<IIhof &I, Ol ,r ror ..... 1000> all ', 'D, .... ,II ,t ...... 1'. FI'LI' _ _ i. ,.. '<I"''" NOTICE The information In this pubtieauon proVides news ~nd opinion from various SQurtes and mlY .ot provide sun1eient mfDfIMtion 10 deal ""th a lepl problem. Neithel the publisher, nor SllllT, WIIrnlnll or represents the suitabIlity of the InfOflMUon in lhis publlcalion for ir\$lilUlin& any legal lelion An atlOlney or other knowledgeable person in ~ disputed Drea sliould be eomutlcd ror C.(pcricncc In legal areas Th,s publication should not be relied on lIS aUIMrIlllth'e cil,rion Page 2 nied from practlcmg medicine in Ohio. The DOC hired her despite those marks on her record. Dr. Arnold Azcuy is a medical executive al North Florida Reccption Centcr. He is in charge of reviewing prisoners' medical cases sllltewide and makes cost-control decisions about when to deny care. Dr. Azcuy paid out on three medical malpractice suits before coming to work for the DOC. Two of his claims, both in 1993, involved the deaths of his patients. Another DOC doctor. Stanley Dratler. lost his medical license for three years in 1986 for fondling female patients. Before coming to the DOC, Dr. Jose Gonzalez was disciplined by the medical board after giving the wrong medicine 10 a pregnant woman causing her uterus to rupture and the fetus to die. I)ying by the Dozens The DOC maintains that the medical care being provided (0 prisoners is as good as one can get on the olltside. But then they never thought anyone \\ould care enough to look closer. or that DOC SecretaI') Moore would uninlentionall) open up Pandora's box. Earlier this year Moore proposed to Gov. Jeb Bush that money could be saved if three oversight committees, the Florida Corrections COllllllission (FCC), the Correctional Medical Authority (CMA), and the Correctional Privatization Commission (CPC), were done away with. Moore told Bush that those entities (that provide n measure of oversight of the DOC's operations) are unnecessary, that the department can supervise itself. That proposal rumed a few feathers and focused altentian on just what those committees do, ironically Ihey are very seldom ever heard from or mentioned in the news. The members of the CMA, a group set up by the legislature to audit prison medical care in 1993. appar- F.P.L.P. VOLUME 5, ISSUE 6 endy did not appreciate Moore's proposal 10 do away with them and in September they struck back with a news release thut prompted widespread media coverage. According to the CMA, since January 1994 at least 56 Florida prisoners have died from inadequate medical treatment. Thnt's almost one in eight of the 463 deoth records that the eMA reviewed for that period. "These deaths could have been prevented," said Linda Keen. executh e director of the CMA. Instcad, for years, CMA records indicate, Florida prisoners hove been dying by the dozens as a result of substllndnrd or simply negligentlTlcdicol carc. The CMA has been doing the job it was authorized 10 do. It pays consulting fees to private doctors with no ties to the DOC to review a sampling of deaths at the state's prison hospitals. Every few weeks the CMA sends a report on the findings of Ihose doctors to the governor. the legislature. and the DOC. BlIt the CMA cannot tell the DCC to do anything. their power is strictly limited by law. Kay I-farris. who is in charge of preparing the Cr>.IA rcpons. said shc feels that despite the obvious prob· lems exampled in the repons that nothing ever changcs. '-The a\crage John Q. Cilizen doesn't care aboul inmate health care," Harris said. The chief administrator of the DOC's health care system, John Burke. disputes Ihat the depanment is at faull. Despite Ihe CMA's assertions. the depanmcnt's record is a good one, he claims. '-A perccntage of people are going to die no matter what you do, and I don't think our percentage is inordinately high considering the population we take care of:' Thomas said. Thomas also noted Ihat there arc an additional 820 prisoner dcaths since 199~ that the Cr>.IA hasn't reviewed. and knowing that they don't have the funds. he disingenuously asked why they didn't review them too. ;'Wc'rc not perfect," Thomas de- fensively said, "People make mistakcs, and other people suffer for it:' Bedfam in the Sun The 51. Pelershllrg Times report did not stop by just looking at the medical hell that Florida Prisoners are incre~lsingly being subjected 10. The third pan of the Times' series explored the care that the increasing number of mentally ill prisoners receive while in florida's prisons. According to a recent study by the U.S. Justice Department, an estimated 284,000 prisoners - 16 rercenl of Ihe U.S. prison and jail population - suffer from severe mental illness. (Sec: FPLP, Vol. 5, Iss. 5, "Mentally 111 Prisoners") Many experts sny that Ihe Justice Department's study confirms the belief that prisons have become the nation's new mental hospitals. With thc wholesale closings of public mental hospilals in the 1960's and the prison-building boom of the past two decades. prison oncll becomes the only option available to menially ill persons unable to cope with the pressures of society. From a high of 559.000 in 1955, the number of patients in state hospitals nationwide dropped to just 69,000 in 1995. At the same lime. the number of jail and prison beds has quadrupled in the last 25 years, with over 1.8 million Americans now behind bars. Florida is IlOt an exception. As noted in the Times repon, with the state prison population over 68.000, at least one of every nine prisoners in florida suffers from severe mental illness. For some of the incarcerated mentally ill, prison offers access to psychotropic drugs and Irc:Hment that they lIlight 1101 receive 011 the outside. But for others, prison orten cxacerbales their illnesses as they struggle to deal with officers unable or unwilling to distinguish between mental symptoms and willful unruliness. Punishment and discipline against mentally ill prisoners IS common and on averagc results ill considerably Page 3 longer rime behind bars, the Justice Department study found. ;;;\ prison is absolutely the worst place for somebody with severe mental illness. and absolutely ccrtain to exacerbate their symptoms," said Ron Honberg, legal director for the Na· tional Alliance for the Mentally III. John Burk, dcputy dircctor for the Florida DOC's health carc system, said, ;;Once these guys are put in prison they've gOI to function in a structured environment - a very structurcd cnvironment - and some of them can·t. But Ihat's not a correctional of· ficer's fault:· Many experts feci that without it being necessary to assign just who is at "fault;' it is obvious that the Flor· ida DOC is doing a poor job of deal· ing with a growing crisis within the prison system as concems the mentally ill. Mental health slaff in the prisons arc often ovcnvhelmed by their case loads and operate in an atmosphere wherc guards and adminis· tmtors view mental health staff as coddlers who nrc easily mllnipulated by prisoncrs. "Often its security who wants to make the call that inmates (fake men· tal heahh problems), so that it's okay not 10 provide treatmcnt for them. There's an attitude thm all inmales are (faking]," said Helen Cunningham, who quit the DOC in August as Baker Correctional Institution's senior psychologist. Cunningham said she often had 10 wait days before guards would bring prisoners rcquesting mental heallh care to her. She said she was treated worse by prison guards if she wrote up reports on allegations thm prisoners had bcen abused, as she was often required to do. The DOC spends ovcr S-l6 million a year on mental health. but still is falling behind. In the last two ycars at least 65 mental health stafT positions havc been cu!. Thc incrcflsing num· bers of mcntally ill entering the sys· tern and lhe rising costs of psychotropic drugs is growing fasler than Ihc' F.P.L.P. VOLUME 5. ISSUE 6 DOC budgct. "It's being tightened down as tight as we can gct it," said DOC's John Burke. ';(But) we think we're still providing care that meets the constitutional standard:' Not so, says others, even former DOC emplo)'ees. Destructivc Solution "As thc)' cut mcntal health scr· vices, which is whm thcy'rc doing, yOli arc going to have more and lllorc inmates who are unmanageable because of mental illness," said Connie Schenk, a fonner DOC psychologist who quit in frustration during August. (See: This issue, "Beatings, Corrup.tion, Cover·ups Detailed to Senate by Prison Psychologist.") "The way (thc DOC] deals with mcntally ill inmates who can be problematic is just to put them inlO close management (sensory depriving confinement]. where they don't get near the access to help thai they used to," said Schenk. According to Terry Kupers, a fo· rensic psychologist who wrotc a book about thc devastating impact thaI con· finemel1t can havc, prisoners left with little contaci with others often become psychotic and filled with rage. Social science and clinical literature have consistently reported that whcn cvcn mentally nonnal human beings arc subjccted to social isolation and reduced cnvironmental stimulation; they may deteriorate mentally and in cases actually de· velop psychialtic disorders. The cf· fects of such isolatcd confinement al· most certainly creates more problems for lhose already suffering from mental illncss. "It becomes a vicious circle especially if the mentfllly ill illl1lme hurts an officer." commented Kupers. ';Rather than providing any therapeutic treatment, Ihe guards can gct more and more brutal. and then the inmates become even more violent and disruptivc. It just escalates." Kay Jamison, II professor of psy· chiatry OIl the John Hopkins School of Medicine, notes that, "The incarcera· tion of the mentally ill is a disastrous, horrible social issue." Subjecting the mentally ill to isolated confinement situations "can exacerbnle thcir hallucinmions or delusions," Jamison said. Yet, despite the wcalth of evidence showing thc destructive and damag· ing effects of isolated confinement on the mentally ill, the Florida DOC has actually incrcased its usc, and plans to increase it even further without consideration of the long term effects or the eventual cost to society or tax· payers. (Sec: FPLP, /3 .. t iJ>suc, "The Return 10 Draconian Days in FDOC). Decndes of Neglect Allegations and cvidencc thm thc medical care available to Florida prisoners is far below recognizcd standllrds, and thaI unneccssary dcaths result from same, are nothing new. For 20 years. between 1973 and 1993, Florida's prison system was under the control of federal courts in a case that started oul challcnging the poor qualily of medical care provided to state prisoners. Throughout thai case courl· appointed mcdical teams found that prison officials were prO\'iding be· low·standard medical care time aftcr time. After COSily improvemcnts. and prcssure from thc federal COllrt. that casc was finally settled in 1993. wilh the state promising to provide medi· cal and menIal health treatment equivalent to the community's stan· dard of care. Bill Sheppard, the lawyer who reprcscnted prisoncrs in that federal case, said that the problcm today is the slime as il was two decades ago: Lack of money. "Every damn death I've seen is a sad story," Shcppard said. "And thc legislatutC is the ...damn cause of it." Another lawycr, RnndalJ Berg of the Florida Justice Institutc, said medical care did improve in thc prisons up through the lawsuit in 1993. Page 4 "Things gOI measurably better. But il didn't take long for it 10 gel back where it was.... And ii's getting pro· gressively worse." Berg commented. It has become so bad and prob· lems are so rampant that even Flor· ida's nonnally prison·myopic legisla· tors have had to take noticc. Accord· ing 10 Sen. Skip Campbell, D· TamMie, vice chainnan of the Senate Criminal Justice Committee, "I can assure you I get a leiter a month from inmates saying, 'Tm nOI gelling proper care.' I'm slarting 10 believe now Ihal maybe Ihey arcn'l gening the treatment [they need]:' reduce the exorbitant phone rates be· ing charged family members and friends of Florida prisoners. It is reality that it takes money for the organization to operate. Subscrip-tion donations cover the costs of pub. Ii cation and distribution of the news· leller, but leave lillie left over to finance the other efforts that are so necessary if change is to be had. As veteran supporters of FPLP know, during the last IwO legislative sessions in Tallahassee, FPLP has been one of the primary sponsors of d(ly~long rallies held in the Capitol Rotunda to educate lawmakers about problems wilhin the Department of lSource 51 Petersburg Times. 9126-28i99 Or- Corrections. Once again FPLP will be fandoStntlfU'f/III'99] in Tallahassee working for prisoners lind their families in April 2000, only FPLP NEEDS a few short months from now. Your YOUR SUPPORT donations arc needed 10 make this upTeresa 8I1m.f. Publislwr coming Rotunda Rally the biggest and Thc publicalion of this newslcner most successful ycl. Money is needed and Ihe projects takcn on to benefit for displays, brochures, rental of ta· Florida prisoners and their families is bles and chairs, rental ofa PA system, made possible through Ihose who and hopefully to allow some transpor· suppon tbis valuable resource by sub· tat ion 10 be rented so people can at· scription and supplemental donations. tcnd from Ihe middle and soulhern In the past year the organization portions of the state. Now is the lime your suppor1 is has worked hard to address the con· needed. If you have not made a donacerns of its members and has to FPLP recently, please show tion achieved numerous successes through SuppOr1 by making a donation, your those efforts. FPLJ> staff and menlbers successfully had the FDDC re· large or small· every lillIe bit will consider its plans to reSlrict mail to help to allow FPLP to continue being and from prisoners and prohibit effective in the coming months and stamps from coming Ihrough the mail. year. FPLP is your voice, speaking Olll FPLP slafT successfully assisted in and taking action. If you believe in having new visitation laws adopted Ihat will result in improved visitation the purpose and goals of FPLP then for families with an incarceraled don't delay ~ send in your contribuloved one. The staff has mel with and tion today. All donations are tax de· provided information to statc legisla· duclible. Togcther, we have made and will tors, news reporters and law cnforce· continue to make changes. _ ment agencies concerning the conditions of confinement that prisoners GRAND JURY CONVENED arc being subjected to. And FPLP has IN VALDES' MURDER worked by itself and with other or· ganizations 10 correct problems at GAINESVILLE Alachua several institutions ovcr the past year, County grand jurors convened and rccently FPLP staff have been working to have something done to 9/29/99 10 begin a review of the sus· pected beating murdcr of former F.P.L.P. VOLUME 5, ISSUE 6 death row prisoner Frank Valdes by prison guards at Florida Siale Prison (FSP) on July 17, 1999. The grand jury is expected to meet several times, up until January 10th, 10 examine the facts surrounding Valdes' death and to question witnesses. Eleven people were subpoenaed before the grand jury on the first day in what was described as a scene-setting meeting to familiarize the grand jury with this case that has rocked the Flor· ida Depanmenl of Corrections. Among those who appeared the tirst day were James Crosby, warden of FSP; William Hamilton, Alachua County Medical examiner; Jimmie Burger, a nurse who examined Valdes at the prison and who later resigned from the DOC; a prison medical re· cords employee and nursing supervisor for the DOC; lind, two Bradford Co. paramedics. Earlier in September, Chief Circuit Judge Robert Cmes granted State At· torney Rod Smith's motion to change venue of where Ihe grand jury would convene from Bradford Co., where FSP is located. to Alachua County. Smith had argued that a grand jury in Bradford Co., would be "improperly comprised" since FSP is the largest employer in the small rural county. Several prisoners who were in cells in the immediale vicinity of where Valdes was allegedly brutally beaten and stomped to death, resulting in cvery rib being broken and his testicles crushed with boot prints covering his body, are expected to be lestifying before the grand jury at some point. Nine officers are suspected of involvement in Valdes death. This scandal has opened the DOC up to intense media scrutiny in almost every area and lead to almost continuous revelolions of gross mismanagemem, abuse of prisoners and corruption in the DOC since Valdes denth. In a preliminary move, 011 October 29 Ihe grand jury issued a sealed indictment against one of the nine guards, Montrez Lucas, charging him Page 5 witll aggravalcd banery, battery on an rastly maintained lhat he did not pull inmate and coercion to aller reports. the lrigger, but he still ended up with Those charges stemmed from an inci- a death sentence in 1990. Under a deal made with Virginia dent the day before Fmnk Valdes was beat to death. According to authori- during A.uguSl, Bill was sell! to that ties, Lucns had beat Valdes on July state's death row early in October, 16, and then altered reports to hide his and a Virginia prisoner, probnbly not actions. Lucas lurned himself in 10 from death row, will be sent to Florpolice on Nov.] and was released on a ida in exchange. "To the best of our knowledge, $50,000 bond. we have never transferred a death row A prosecutor in Gaincsville said lhe 21 member grand jury will con- (prisoner) before, bill because of the tinuc its investigation and murder unique circumstances surrounding charges arc expected to be filed in the Van Poyck...we have decided he will be in lhe Virginia system inderi· Valdes' death. On NovA eight of the nine sus- nitely," said FDOC spokesman C.J. pended guards suspected in Valdcs' Drake. Bill is expected 10 be a willless as murder appeared .1t a 90-minute the invesligation continues into closed door meeting ill Gainesville called by SUite Attorney Rod Smith. Frank's death. In the two weeks beA source stated the meeting was fore Frank was killed, Bill had been callcd 10 discuss whelher the guards writing numerous letters, including will have anorneys represent lhem as one to a Federal judge and various reporters, warning that guards at FSP individuals or as a group. [Source: Gainesville SUII; 9/29-30/99; were "OUI of control" and routinely beating prisoners on the now infaFlorido Til1le.~ Vl/iOll, 11/3,4,5/99] • mous X-Wing. Arter Frank was killed he continued to write to whoever he VAN POYCK TRANSFERED thought might listen, detailing how TO VIRGINIA guard bem Frank to dealh and how One of Florida's most knowl- both he and Frank had been threatedgeable and effective prison litiga- ened by guards throughout their incarlors, William Van Poyck, 45, became cenl.lion at FSP. Prison officials claim lhey did nOl the first prisoner on Florida's <Ienth transfer Bill to keep him quite or 10 row to ever be trnnsferrcd to another censor him. state through the irllerstnte compacl Bill Van Poyck was nol just ansystem. olher condemned prisoner on FlorThe transfer allegedly stemmed from prison officials' concerns about ida'g dealh row. He was known Birl's (as he is known to his friends)- Ihroughout the prison system, by prissafety. and the safety of correctional oners and officinls, as one of Florida's officers, following the suspected beat- foremost jailhollse lawyers. From his ing-murder of Bill's co-defendant, dealh row cell, he legally challenged Frank Valdez, by guards at Florida his and other's orten inhumane or unconstitulional conditions of confineStale Prison (FSP) on July 17th. Bill and Frank were both on death ment. Bill's criminal attorney Gerald row for the killing of prison guard Bettman said he has a sharp legal Fred Griffis in 1987. Bill and Frank mind, a fnct the DOC well knows were allegedly allempting 10 free pris- where several cases riled by Bill, or oner James O'Brien as he was being on which he assisted, established sigtransported to an olltside doclOr, when nificant chnngcs throughout the de· Griffis refused to give up the transport partmenl. When requested" to sign the papervan's keys and subsequently was shot work for his transfer to Virginia, Bill three times in Ihe head. Bill has stead- F.P.L.P. VOLUME 5, ISSUE 6 reluctantly agreed because in his own words, "Nothing can be worse than Florida." (Source: .51 Pelersburg 7i'mes, IO/5f99; Ilill Van I'oyckj • A SYSTEM OF ,JUSTICE? Drew Hanson When ajl/sf calise reaches if:.'jlood fide... whale}.·er sfa!1(l~ in the way /flllst fall before il.\' overwhelming power. Carrie Chapman Cau [n the wake of new allegations of corruption within the Department of Corrections (DOC) following lhe dcath of an inmate al Florida State Prison (FSP), Ihere has been n Oood of questions regarding the competency of the majority of DOC's workforce. Following the murder of death row prisoner Frank Valdez, fellow correctional officers buill a nood gate to circumvent the Oood tide of inquiries ~rom law enforcement officers seeking IIlculpatory evidence against the officers involvcd. Not even the death of a human being could make a crack ill the floodgate that would create a break in lhis wall of silence. Even lhe Bradford COl/II'y Telegraph, which happens to be the local newspaper for Bradford County where FSP is located was indiffercnt to the lllurder thaI occurred in its coullly. The papcr' s c<lilor, John Miller was quoted as saying: "It's not a hot priority news issue to us " [Miami Herald. 7/23/99]. Mr. Miller 's comment said it all. Injustices to inmates are nOI II hot priority. This code of silence is indicative of the mentality of the correctional slafT, and there are two schools of thought as to why the correctional industry has produced this breed of officer. Firsl and foremos!. silence - as to injustices of inmates - is as old as the institution of penal systems itself. from Ihe inception of prisons, prison guards have established and maintained a unique idiosyncrasy. Usually officers of rank will indoctrinale subordinates as to how to conduct themselves in frOllt of olher staff as wcll as Page 6 the prisolipopulation. This indoctrination is broad in nature and requires strict compliance. Those who do not comply, find themselves out of a job. Second, the reason it's easy for the higher echelon to indoctrinate the subordinates is because of the caliber of individual the prison industry hires. DOC has always sought employees who can demonstrate "an indifferent attitude" towards prisoners. The ideal officer is one who is not prisoner friendly. A recent report has disclosed that more than 1 in 6 Florida guards have criminal records. A background check on Florida State Prison located at Starke revealed that out of the 5 II guards employed by FSP, 89 have arrest records. Out of the 89 guards with' ·arrest records, II faced courtordered punishment for violent crimes, and two are repeat offenders. [Source: St. Petersburg Times; Associated Press, The Times Union, 8/23/99]. Unlike" other law enforcement agencies, the DOC does not require psychological or polygraph tests to weed out undesirable applicants. Many experts question whether it is reasonable to expect guards who can't behave themselves on the outside to use force judiciously on the inside. Thomas J. Archambault, head of the TJA Training Resource Group, a Vermont company that trains prison guards, said, "if you have a person that has been convicted of assaultive behavior, obviously they are out of control": Archambault continued that it follows that we don't need out-of-control officers in a position ofcontrolling people. Corrections statistics show that 1,560 of Florida's nearly 16,000 guards have been charged with a crime in the past five years. Records from the state's Criminal Justice Standards and Training Commission Web Page Address: bttp:/Imemben.aol.com/rplplfplp.blml E-mail Address:fplp@aol.com Telephone: (407) 568·0200 F.P.L.P. VOLUME 5, ISSUE 6 show that Florida's state prison guards are more than twice as likely as police officers to violate state standards of conduct. From January 1998 to June 1999, over 750 officers were brought up on disciplinary charges ranging from sexual assault to shoplifting to use of excessive force on a prisoner. The Standards and Training Commission's 19-member panel suspended or revoked the certification of 263 guards and issued another 144 letters of reprimand. Standards and Training Commission 'Chairman Richard Coffey stated that DOC is more interested in getting a quantity of people rather than quality. Coffey went on to say that he has seen enough. He believes the problem stems from the lack of formal education that these officers bring when they entered the DOC workforce. Surveys conducted by the Commission show that correctional officers are much less likely to have attended college compared to more than 50% of the state's police force who have at least two years of college. This, according to Coffey is why a person with no college is five times more likely to end up with a disciplinary case. This discrepancy between correctional officers and the state's police force is very much known to David Murrell, executive director of the Florida Police Benevolent Association, the union that represents state corrections officers. Murrell said, "I don't know if corrections officials are. more vigilan"t or corrections officers just tend to get in more trouble, but we are .aware ~f it". . . .. An mterestmg twIst to the dlsclphnary pro.cess that Coffey finds problematlc IS that not all cases actually r:each the Commission. Coffey stated that the Commission is at a disadvantage because it hear~ only cases .that are referred" by a pollee or correctIons officers' agency. When allegations are made, the agency does the initial investi.gation and then passes it along. ObViously not all cases that should reach the Commission actually do. State Representative Allen Trovillion who is the chairman ofthe House Corrections Committee would like to see all law enforcement candidates face tougher education requirements. Rep. Trovillion recognized that with a higher standard comes a low candidate pool. While a low candidate pool may factor into the equation when raising the standards, this alone should not deter a higher standard. Higher education produces less disciplinary actions against correcti9nal officers and provides the DOC with competent, stable officers to manage the 63,000 plus state prisoners in Florida. A just cause has reached the flood tide, we need more accountability for the type of officer DOC hires to control the prison population; it's time for the bureaucratic wall to fall before the overwhelming tide of fair and equal justice. _ WORK RELEASE ELIGIBILITY ISSUE According to information received by FPLP staff, approximately five months ago prisoners at many institutions started being told by classification officers that a memo had been received from FDOC central office reducing the time frames for work release consideration. (See also: FPLP Vol. 5, Iss. 5, "Sound Off' letter fro~ TF). An inquiry to the Joint Administrative Procedures Committee (which oversees all state agencies' rule making in Florida) resulted in the following response from the Com~ittee's chief attorney William H. Harold: "1 have received your letter and the attachments provided regarding Rule 339.023 (6)(b), F.A.C. Based upon the information in your letter I contacted the Florida Department Of Corrections regarding 36 month versus 18 months. Based upon my research of the rule and statements in the letter Page 7 from Ihc Dcpartmcnt of Corrections (copy attached) the 36 month time frame is what the ':U1e provides for the specific circumstances listed in the rule, and it has not been changed to 18 mOrHhs." Thai response was dated September 9, 1999. In the "attached letter" referenced in that response, dated September 3, 1999, to Wm. Harold from Perri K. Dale oflhe FDOC, was stated: "Rule 33-601.602 (formerly 33-9.023) has nOi been amended to change Ihe time frames for eligibility for consideration for community release programs." Therefore, lhe FDOC central of· fice is denying thai there has been any change in the time frame eligibility requirements for work release. If any FPLP reader has a copy of the memo that was allegedly sent from Ihe central office directing such a time frame c1mnge, please send our slaff a copy of it. • FDOC SECRETARY MAY CUT ADMINISTRA TlVE POSITIONS SO MORE GUARDS CAN BE HIRED In September 1999. Department of Corrections Secretary Michael Moore announced that he is looking at ways to hire more prison guards by cutting a beneficial program designed to divert nonviolent offenders from the prison system and by reducing DOC administrative staff, including the elimination of all librarian positions al institutions statewide. These cuts will generate the money necessary to hire more prison guards. In response to Governor Bush's budget cuts, administrative agencies have been advised that if they wish 10 add something in the next fiscal year they will have to suggest ways to pay for it without state dollars. Moore made several suggestions. One suggestion was to cut the pretrial intervention program operated by the DOC and to usc that money to hire F.P.L.P. VOLUME 5, ISSUE 6 up to 567 new prison guards. Another suggestion made by Moore was to reduce the DOC's administrative staff by 287 positions. which would include all librarian posi· tions throughoLlt the state. Critics of Moore's proposals, including members of the Florida Correclions Commission, Public Defenders and State Attorneys, note that his suggestions would cost more in the long run because it would cost Illore to incarcerate a individual than to place him in a pretrial illlervention program. Stale legislatures will have the final say on thc prctrial program when the)' put the budget together during next spring's legislative session. [Source: Or/alldQ Semilltl. 9/23199] AIDS, HIV RATES HIGHER IN PRISON A report released during Sept. 1999, that was funded by the Centers for Disease Control and Prevention (CDC) and the National Commission on Correctional Health Care, shows that prisoners and those newly released from prison are much more likely to have AIDS and other infectious diseases than people in the general population. This study was the first national 'estimate of infectious disease rates among prisoners, and found, in parI, ihnt the prevalence of AIDS is five times higher among prisoners than in the general populmion. And significantly, the number of prisoners infected with HIV is eight to tell times Ihm of the general population. Lead researcher Theodore Hammell of Abt Associates, a Cambridge, Mass., think tank, said, "The vast majority of prisoners return to the community. Treatment (while incarcerated] will not only benefit prisoners. their families and their sex partners, but public health." Other findings of the report include: Up to 17 percellt of the 229.000 Americans with A[DS went through jailor prison during 1997; Up to 19 percent of the 700,000 people with HIV ill 1997 spent time behind bars; and, up to 32 percent of Ihe 300,000 Americans with hepatitis C went through a correctional facility in 1997. [Source: USA rODA )', 9/1/99] • BEATINGS, CORRUPTION, COVER UPS DETAILED TO SENATE BY PIUSON PSYCHOLOGIST In a leller to the Florida Senate Criminal Justice Committee. dated Sept. 13, " prison psychologist said she quit her job in frustration after trying for three years 10 warn prison administrators of abuse or prisoners by guards at two North Florida prisons. Connie Schenk 53. who holds a doctorate in forensic psychology, quit working for the Dcpanrnellt of Corrections Aug. 31, after. what she claims was retalialioll was taken against her for her repcated auempts to report prisoner abuse. Schenk told senators that prison administrators at both Taylor and Liberty Corr-ectional Institutions had met her alternpts with defcnsiveness. hostility and rcwliation. Offering dctails, Schenk said she had frequcntly saw injured prisoners at Ihe two prisons who claimed thcy had becn bcalen by guards. [11 1996. when she first started at Taylor el, Schenk said she routinely filed repons 011 suspected abuse of prisoners. She said omcers and supervisors either did nothing or became hostile towards her about the reports. "I wcnt to the warden, Greg Drake, and told him abuse was going on [in the confinement lin its]. He JUSt said. 'I don't think so. Dr. Schenk:' "Absolutely nothing would happen." she said. At Libeny Cl, Schenk said she trlcd to be more diplomatic in reporting the abuse she found. She reponed her concerns more inronnalJy until Page 8 last year when a prison guard came to her and told her he was being threat~ ened by fellow guards whom he had seen beating a prisoner. She and the guard then went to the state inspector general and Florida Depanment of Law Enforcement (FDLE) officers were sent to investigate. The inspec~ tor geneml's office said the case remained open almost a year later, and was still open as of Sept. 1999. Schenck said she had been told the FOLE had "referred" the case back to the DOC to handle as it saw fit. During July Schenk's boss at Liberty CI told her to clean out her desk, that she was being involuntarily transferred to the Corrections Mental Health Institution at Chatahoochee, Florida. She said that was in retalia~ tion for her attempts to report abuse of prisoners at the prison. "I can tell you firsthand that corruption is rampant, abuse of inmates and staff is routine and cover-up is an established practice (in the Florida Department of Corrections]," Schenk wrote to state senators. The DOC did not respond to reporters seeking comment on Connie Schenk's damaging allegations about the department. (Editor: Greg Drake, the former warden of Taylor CI has now been promoted 10 Regional Director over all prisons in the Northern part of Flor- ida.] [Source: Miami Herald, 9/161991 • FDOC SECRETARY MOVES TO RESTRICT MEDIA ACCESS The secretary of Ihe Florida Department of Corrections (FDOC), Michael Moore, announced during September, following a barrage of attention on the department by the main~ stream news media, that a formal review will be conducted of tile department's policies of media access to prisoners. The existing policy, that has been F.P.L.P. VOLUME 5, ISSUE 6 in effect since 1985, allows the media to interview specific prisoners by sub~ mitting a written request, and if the prisoners agree to be interviewed. Moore wants to change that. In a message posted on the department's Website during September, Moore indicated that prisoners' access to the me~ dia should be restricted, implying, without slating it outright, that the media is too sympathctic to the (deplorable) conditions of confinement in Florida's prisons and too eager to publicize negative aspects of the department. Using disingenuous spin control techniques to try to divert attention from the true purpose of the consideration to change current policies, Moore stated in the Website message that the department's job is to protect the public and crime victims, that, "with criminals committing notorious crimes, with the media eager to publicize them, and with more attention being given to the plight and rights of victims, we are obliged to review ~ur policies." Opponents of any change in the current media access policy note that the news media has not suddcnly focused on "crimes comrnincd by criminals" any more than it ever has been. Media reportage of crimes, even notorious crimes, occurs at the lime of the crime or during trials, and before convicted offenders ever enter the DOC's control. What Moore's true concern must be, concludes opponents, is the spotlight that the media has focused on the department in the past few months following the brutal murder of death row prisoner Frank Valdes in July,"in which a gang of historically abusive prison guards are suspects. Since then reporters have dug up, in some instances based on information supplied by pris~ oners or prison reform groups, several very serious problem areas in the department And Moore is 110 doubt concerned that even the FBI is conducting an investigation of the entire rDOC citing reports of system-wide abuse of prisoners. Moore knows the media will closely report any findings of Ihat investigation. The department in general, and Moore in particular, have been embarrassed and humiliated by the reports that have flowed from Ille me· dia recently. Back-to-back reports detailing abuse and corruption in the department have surfaced in print and on television and radio repons all over Florida. Recent news reports have detailed how -almost \0 percent of the department's employees have criminal records ihemselves, many Wilh violent criminal records. Other news reports have focused on how many DOC employees only have minimal education and are not properly trained. Moore waS apparently embarrassed when Republican lawmakers in the state Scnate rorced him to ap~ pear before them in early September where he was placed on the hot seat trying to explain what is going to be done 10 correct the problems that keep coming to light through the media's attention. And members of the House have stated that Moore will also be required to do some explaining to that political body. Michael Moore did not comment on what steps might be taken 10 re· strict reporters access to interview prisoners about their conditions or confinement. Nor was any mention made on the Website message of the fact that prisoners may contact reporters and other media representatives through confidential mail, although it is felt that this will be the real behind-the-door focus of the review of tile current policies. According to U.S. Supreme Court decisions, prison officials may restrict personal access of the media to prisoners, as long as prisoners have alternative means to communicate with the medin, a right protected by the First Amendment. The real threal to Moore and of any desire to continuc the historical and planned future Page 9 abuse of Florida prisoners is not personal media intervie\\ access, it is prisoners being able to communicate with the media period, especially confidentially. Any change in the current media policies of the FDOC will have to be done through the rulemaking process, affording revicw and prisoner and public comment, including a public hearing if rcquested. The last time the FDOC to change its rules, approxi· mmely two years ago. to restrict the media's 1lccess to death sentenced prisoners, the result was shock when several major news agencies challenged the proposed changes and the FDOC withdrew the proposal. It wi II be interesting to see what response Moore receives this time if the cur· rent policies'are proposed for change. • FDOC CLASSIFICATION OFFICER SUES FOR SEXUAL HARASSMENT During October last year Dannette Fasanella sucd the Florida Depanment of Corrections in federal coun claiming that she was sexually har· assed and then retaliated against after reponing the harassment to prison administrators. The lawsuit alleges Ihllt these incidents occurred at Char10llc Correclional Institution located IIcar Punta Gorda, Florida. Thc lawsuit is still pending in the Middlc District Fedeml Coun of Florida. Fasanella stated in the lawsuit that while employed at Charlone CI thAt FDOC employee Roben Hummer would come into her office and stand on the desk. pretend to be masturbating while saying things like, "I'm choking the chicken," and make com· ments likc, "You bull dike bitch." When Fnsanella reponed these acts to her supervisor, Lee Arnold, head of the Classification Depanmelll at Charlotte CI, Arnold did nothing to stop thc harassment. In fact, Fasanella claims in the suit that Ar· F.P.L.P. VOLUME 5, ISSUE 6 nold began a campaign of retaliation against her himself. including falsifying job evaluations and placing false disciplinary repons in Fasanella's files. Fasanella also claims that she reponed the sexual harassment to the Assistant Superintendent, Frank Youngblood, and to the Superintendent at that time, David Farcus, who also nevcr took any action to stop the harassment, while Youngblood aClUally began harassing her himself. She claims that after she infonned Youngblood of the problem on several occasions he came to her office and made comments like," You know how much I like pretty women," and "You have such beautiful skin." Despite her telling him these comments were unwelcome and inappro· priate he continued making them. When Fasanella refused to give in to Youngblood's attenlion she claims that he began retaliating against her. Fasanella also claimed in the suit that olher officials at the prison had sexually harassed her, including the prison investigator David Charlwood. Despite repeated complaints no action was taken by higher FooC officials to stop Ihe harassment or retaliation. Fasanella finally was transferred to work at the Charlotte CI Work Camp, a separate unit from the main prison. This case is numbered 98·412·CivFTM·17D, and is pending in the Fon Myers Division of the U.S. Middle District Coun of Florida. _ PREDICTING ilEATIl AT FSI' In a l\\enty page lawsuit filed by a prisoner at Florida State Prison to the Florida Supreme Court on June 1. 1999, only six \\ceks before death row prisoner Frank Valdes was beaten to dcath by suspected prison guards, was details of FSP prisoners being "routinely-·as recreationnl sport-systematically assaulted, battered, jumped on and beaten unprovoked." The lawsuit fired b)' Douglas Jackson. a prisoner sentenced to life in prison for murder. told the coun that, more lives need to be lost before corrective action from the court is granted. Whole lives and safety are in grave danger of being violcntly attacked at any moment, to be severely injured or, worse yel, killed by stafT." Jackson clnimed in lhe suit that beatings have been covered up for years at FSP rind lhat prisoners are not given medical care because "that creates a paper triaL" He also claimed that internal grievances are not inves= tigated by central office stafT and that a "good 01' boy ... code of silence" prevents complaints from reaching the oUlside the prison. Jackson's lawsuit was given shon shift by the Florida Supreme Court, which sent it to a lower coun to review, a lower coun that Jackson had been barred from filing lawsuits in previollsly. Jackson had earned a reputation for filing "frivolous law. suits" with the couns. having filed 143 according 10 a DOC spokesman, since his incarceration in 1990. Jack· son was number three on Fla. Attorney Gcneral Bob Butterworth's list of the 10 most frequcll! filers that he used to lobby Congress to pass the 1996 Prison Litigation Reform Act to almost totally obstnlcts prisoners' access to the couns. In an article by Miami Herald reporter, Lesley Clark. Oil Sepl. 12, 1999. detailing Jackson's IllOSI rccent lawsuit, it WllS commented that Jack· son's suit, though prophetic, was "a case of crying wolf once too often." ·~o • CIVIL DETAINMENT OR PRISON? by Drew Hamo" The Jimmy Rjce Act better known as the sexual predator law faces a judicial test in the state of Florida. Under this law those convicted of sexual offenses and who are designated a threat to society may be detained in II prison-like environment Page 10 following their release from prison. The state's answer to the question of what to do with dangerous sex offenders about to be released from prison is: keep them locked up indefinitely for treatment. The catchy phmse "civil commitment" as used by the state is anything but civil. The Jimmy Ryce Act, named for a 9-year-old Dade CounlY boy who was kidnapped, raped, murdered and dismembered in 1995, was crafted to protect society from dangerous sexual predators known for repeating their crimes. Under the current law, those designated to be a danger to society are delaincd following their rclease from prison and face a civil trial to determine if they should be locked up indefinitely for treatment. Since the law went into effect in January, it has prompted a nood of constitutional challenges. Most recently the law was held constilutional by a Palm Beach County coun.. However, the 4th District Coun. of Appeal has advised prosecutors that it would be a violation of due process to deny those individuals a probable cause hearing prior to detaining them pending a civil trial. This latest judicial decision has prosecutors statewide scrambling to comply with this order. Prosecutors must demonstrate to a judge that those designated a danger to society should be kept locked up. Pinellas Public Defender Bob Dillinger C'lnimed that this was a dramatic victory for those who his office had sought hearings for and filed an appeal with the 4th Districi Coun. to win them. Now prosecutors are working to meet the appeals coun. deadline: five days. The precedent-setting appeals court order on the Pinches cases could have statewide ramifications. Dillinger said that cases for the proseculors may look good on paper but may 110t appear so strong in an adversarial hearing where both sides can call witnesses. Dillinger believes that not all the men targeted are prone to re·offend F.P.L.P. VOLUME 5, ISSUE 6 and they should be freed. He argued that Florida is the only state with a law like Jimmy Ryce that didn't call for a probable cause hearing. Dillinger blames the Legislature for the immediate problem because they were the ones who drafted this law. This is only the beginning of the problems for the Jimmy Ryce Act. In late September, Palm Beach County Judge Virginia Gay Broome upheld the law as constitutional but noted the facility designed to hold the detainees is overcrowded and lacking in privacy. adequate treatment plans and activities. The first facility was a converted county jail located next to Martin Correctional Institution in Indiantown, Florida. The Martin Treatment Center is home to more than 100 convicted sex offenders brought there following the completion of their prison sen· tences. Instead of being free, these men now sleep on gray metal bunks and eat prison food. They remain at the Martin Center pending civil trials to determine whether they should be locked up indefinitely for treatment under the new law. Defense lawyers allege Ihat the prison-like conditions add fuel to their argument that the law, which is not suppose to be punishment, actually heaps more punishment on men who have already served their sentences. The men are under constant camera surveillance from a central control room staffed by Department of Correctiolls' prison guards. Toilet stalls arc in the open with no doors for privacy. If the men need medical treatment they are taken to Martin Correctional Institution for treatment by prison doctors. The Jimmy Ryce Act is supposed to be a civil, not criminal, action that holds the men for treatment, not pun· ishment. However, defense lawyers say the current living conditions is not civil and they want to show that the law is punitive in order to prove that it is dOllblejeopardy. Hillsborough Chief Judge F. Dennis Alvarez, who presided over several Ryce cases in Tampa, said .the Legislature clearly meant for treatment to occur outside a prison setting. A,h'arez plans to tour the Manin facility to determine whether it is as restrictive as a prison or if it is more close to a hospital setting. Another significant factor about the law is that only one-third or the men committed to the center have agreed to receive treatmenl. Many of the men have refused 011 the advice of their lawyers. who think that participating could be perceived as admit· ting to being a dangerolls sex offender. More than 20 or thc detainecs who have declined treatment have been scnt 10 South Bay Correctional Facility in Palm Beach County. While South Bay is privately operated. it is still a prison. So those men who have completed their prisons terms are still in prison albeit in a house of a different name. Assistant Public Defender ellie King said that this aClion is potenlially a life sentence for a lot of these men. The bottom line is the Legislature has set up a system to warehouse people they don't want on the streets. Ahhough Ihe Vni/cd States Supreme Court has upheld as constitutional a similar law enacted in Kansas, Public Defender Dillinger beliC\'es that the COlin. opinion left open the argument about whelher Ihe law was improperly used as punishmenl, an argumell( which may take years to • resolve. ISource' 51 I'I'I/?rsbllrg TIrII<'s. 1012.3991_ Page 11 October 1, 1999 SENATOR TON/JENNINGS P,,,.,d(!lnt Teresa A. Bums. Chairperson Florida Prisoners' Legal Aid Organization. Inc. 15232 East Colonial Drive Orlando. FL 32828 Dear Ms. Burns: Your recent correspondence outlining your concerns regarding Lhe Florida Deparcment of Corrections is greally appreciated. You raise some interesting points in your leller. I have taken the liberty of sending a copy 10 the Senate Criminal Justice Committee which has oversight of the reguhl.lion of the Department of Corrections (DOC). As you may be aware, ule Committee has requested. and will continue to receive, information from DOC concerning the recent events a Florida State Prison. I have asked the committee staff to keep your comments in mind as they review this infonnation. Again, thank you for taking the time to wrile and share your thoughts. You and the members of FPLAO are to be commended for your efforts on behalf of Plorida's prisoners . • To i Jennings rb 1032 Wilfred Drive Orlando, Fl 32803 F.P.L.P. VOLUME 5, ISSUE 6 Page12 . Erroneous Felony Reclassification Results in Illegal Sentences Pursuant to Florida Rule of Criminal Procedure 3.800(a}, Lenoris Drumwright, who is currently incarcerated at the Mayo Correctional Institution, moved the Circuit Court, in and for Orange County, Florida, to correct his habitual violent felony offender sentences. ' In 1993, Drumwright was convicted and sentenced on the following offenses: I) Aggravated assault with a fi~earm while wearing a mask (a third degree felony reclassified to a second-degree felony based on the use ofa firearm); 2) Aggravated battery with a firearm while wearing a 'mask (a second degree felony reclassified to a first degree felony based on the use of a firearm); and, 3) Aggravated assault on 'a law . enforcement officer with a firearm while wearing a mask (a seconddegree felony reclassified to a firstdegree felony based on the use of a firearm). In his Rule 3.800(a) motion Drumwright alleged that he was i1~ legally sentenced to concurrent 15year habitual violent felony offender sentences with a minimum ~andatory of 15 ye~rs. Not surprismgly, the Honorable R. James Stoker, Circuit Court Judge, denied the motion, which forced Drumwright to take an appeal to obtain his warranted relief. On appeal, the Fifth DCA found numerous sente~cing errors committed by the tnal court. ' First, the DCA found that it . . . . E 5, ISSUE 6 was error for the trial court to reclassify the third degree felony of aggravated assault with a firearm while wearing a mask to a second-degree felony because "the use of the firearm was an essential element of the aggravated assault." Thus "Drumwright's aggravated assaul~ conviction, ,a third degree felony ~ould not incur more than ten year~ Incarceration with a minimum mandatory term of five years as an habitual violent offender." Next, 'the DCA found that it was error for the trial court to reclassify the second-d~gree felony offense of aggravated battery with a firearm while wearing a mask to a felony of the first degree because use of the firearm was also an essential element of the aggravated battery. "Th[is] offense should ha.ve been classified as a s~cond deg~ee felony thereby incurrmg an habItual violent offender sentence of a term of incarceration not exceeding 30 years with a minimum mandatory term of 10 years." Finally, the DCA found that the trial court also erred when it reclassified the second-degree felony of aggravated assault with a firearm while wearing a mask to a felony of the first degree because use of the firearm is also an essential element of that offense. "Again the imposition of the IS year minimum mandatory term exceeded the 10 year maximum." Because the sentencing errors were apparent on the face of the record, the DCA remanded for resentencing consistent with its findings. ' See: Drumwright v. State, 24 FLW D21 0 I (Fla. 5th DCA, 9-10-99). . Resentencing From True Split Sentence Goes Awry! Michael James Baker was originally sentenced by the Eleventh Judicial Circuit Court, ir. and for Dade Co~nty, Florida, to a twenty year "true spht sentence." See Pool'e v. S',,'e, 531 So.2d 161 (Fla.1988). The sentencing scheme employed in Baker's case consisted of a twenty-year prison term suspended after the completion of ten years incarceration with the remaining balance of the sentence to be served on probation. Baker satisfied the service of the ten year incarceration portion of his split sentence and was release to begin service on the ten year period of probation. Subsequently, Baker violated the conditions of his probation and was resentenced to a prison term that exceeded the remaining balance of the w.it~held. or suspended portion of th~ orlgmal true split sentence. . Pursuant to Rule 3.800(a). Fla.R. Crlm.P., and under the authority of Poore, Baker moved the circuit court to correct his sentence. Baker's motion was denied and he appealed. Finding Baker's entitlement to relief apparent on the face of the record the Third DCA, reversed the circui; cou~'s or~er ~enyjng the Rule 3.800(a}, motion. Slglllficantly. citing Bryant v. State, 591 So.2d 1102 (Fla. 5th DCA' 1992); and, Ashe v, State, 548 So.2d 291 (Fla. 4th DCA 1989), the DCA ~ound that? in revoking Baker's probatIon, the clr~uit court illegally imposed a sentence In excess of the remaining bala~ce of the withheld or suspended portion of the original sentence. Page 13 Although the DCA correctly found lhal "Baker was entitled to be sentenced to the balance of the with· held ponion of the sentence." which appears to be ten }ears. the DCA nonetheless fCversed and remanded "with instructions to resentence Bakcr to twenty years imprisonment with credit for time served." Sec: Baker I'. State. 24 FLW 01691 (Fla. 3d DCA. 7·21·99). 'IComment: Although it 11\11)' :lppear that Baker pre\'niled, Ill)' review of other case law decisions pertaining to this mailer has I.ert me with a reason:lble doubt. That is, I have reason to believe that Baker did not actually get the relief th:lt he is entitled. ee Cook \'. Stille, 582 So.2d 90$ (Fla. 1st DCA 1991) (sentence imposed after probation revocation on originul true fifteen year split sentence, suspended after three years incllrcer:ltion, could not exceed twelve )'ear balt,"ce of with· held or suspended portion of origin:l! sentence); Solomflll v. Slate, 698 5•. 2d 909 (Fla. 2d DCA 1997) (ulJon revocation of probation from original ten )'ear tme split sentence wilh fi\'e of the len years SIlSpended, maximum senlence th:lt court could impose upon revocation \\as five )'curs); Chapmall I'. 51011:, 538 50.2d 965 (Fl•. 4th DCA 1989) (" upon II violation of the probation imposed in a 'true' split sentence, the length of sentence ma)' 1101 exceed the length of the term of the sllspended period, the limits of which were established in the initial sentence."); Towuer 1'. SUI/e, 594 50.2d 351 (Fla. 5th DCA 1992) ("Ihl aving received a true split sentence, Ihe maximum sentence a\'ailable upon \'iolalion of probation was the balance of the prohlltiolHlry pc~ riod."). In Poore ". 5wte, the Florid:l Supreme Court staled "if III true sillit sentence I is used I1S the origi~ nal sentence, the selltencing judge in no instance may order new in- F.P.L.P. VOLUME 5, ISSUE 6 carcerntion that exceeds the remaining balance of the withheld or suspended portion of the origirml sentence." 531 So.2d 161, at 160$ (Flu.1988) (emphasis added). Lonnie Poore was originally sentenced to four~and~Olle-haJr years incarceration. However, the sentencing court ordered Poore to spend two-and-one-half)'ears inC.:J.r~ cera led with the remainder of the sentence sllspended. Poore was to be on probation during the two )'ear suspended portion of the sentence. When Poore's probation was re\'oked, utilizing the sentencing guidelines, the trial court resen~ tellced him to four-and~one-half yellrs incnrceration wilh credit for timc sen'ed. On appeal to the Fifth DCA, the DCA held that Poore could only be incarcerated for the remainder of the original split sentence, which 'las two years. The Florida Supreme CO!Jrt granted re\'iew because of expressed :lIId direel connicts between the district courls of appeal. On review, noting that Poore was originally "sentenced to a true split senlence tot:lling four-and-one-half yellrs, with two ye:lrs of the total senlenee suspended," 531 50.2d, at 165, the Floridll Supreme Court agreed with the DCA's determination that Poore's four-alld~one~half yenr VOP sentence had to be vacated. The supreme COUl'l held Ihal, "(ulpon remand, the trial court sh:lIl not be permitted 10 order IPoore's} incarCeT:llion for any period exceeding either the guidelines recommendation or the remllinder of the original splil sentence, whiche\'er is less." !fl. (emphnsis added). Another case supporting Illy posilion that Baker did not get all the relief he is entitled is Ashe v. SUlle, 548 50.2d 291 (FlA. 4th DCA 1989), which is :1c(uall)' cited by the DCA in its decision entered in Baker's case. Christopher Ashe was originally sentenced to a term of six years with four years to be served in prison and the remnining two yea~ on probation. After Ashe vio~ lated his p...obation, the DCA found that "the trial cou ...t erred in sentencing him' 10 a prison sentence greater than Ihe suspended portion of his original split sentence, that is, greater thnn hvo years." Id., at 292 (emphasis added). In my opinion, Ihe other case cited by the Bilker Court, Bryalll.,. Slale, 591 So.2d 1102 (Fla. Sth DCA 1992), should nOI have e\'en been cited. Unlike Baker, Robert Bf)'ant's enti ...e sentence was sus· pended. Sec SlfIle 1'. Powell, 703 50.2d 444 (Fla.1997) (trial courl rna)' impose true splil sentence in which entire period of incarcern~ lion is suspent)ed); see also, Sconiers v. 51f1te, 651 So.2d 758 (Flu. 1st DCA 1995) (sentence im~ posed upon revocation could not exceed initial ten year sentence, all of which was suspended). My frustration wilh the B"ker case came from the DCA's instruction for tbe sentencing cou ...1 to impose a sentence of hventy years with credit for time sen'ed. (n Illy opinion, this conflicts with, among other things, the mandate entered in Poore. I firmly believe Baker should not be sentenced 10 a prison term Ihat exceeds the ten-yeilr remaining balance that WIIS inititllly withheld or suspended. Additionally, on the maximum ten yea ... VOP sentence thllt could be imposed, I believe thut Baker should be awarded c...edit for all time served and unforfeited gain time earned from the inca ...cerntion po...• tion of is original split sentence. This, in my opinion, would be COIlsistent with the spirit of the sen~ tencing guidelines. Unfo...tunatel)·, there is a case thai really muddies my opinion: Frazier v. Stale, 559 So.2d 1121 (Fla.1990). In 1980, ,Johnnie Fmzier was originally sentenced to ten Page 14 years in prison, to be suspended after the completion of the first five ye:lrs incarceration wilh the five}'ear balance to be served on probntion. Frazier was later convicted of DUI mnnsl:lughter, which was committed on November 6, 1986. PurSUllnt to a guidelines runge of seventeen to twenty-ovo }'ears' incarcenuion, Frazier was sentenced on the DUI manslaughter offense to the statutory' maximum of fifteen years in prison. The trial court also revoked the fi"e year probationary period in Frazier's 1980 ten yenr true split sentence and imposed a new ten year prison lerm with :111 award for the full five yellrs as credit for time sen'ed. The problem is, the Florida Supreme Court found' thnt U(hlis resentencing on the 1980 conviction (was) consistent with Poore because Ihe court did not 'order new incarceration that exceeded the remaining bl1lancc of the withheld or suspended porlion of the originlll sentence." Id.• at 1122; quoti"I: Poore. Through cxtensive rcsearch, I have found that Baker is just one of man}' whom Florid:. courts have allowed to be sentenced to prison terms exceeding the suspended portion of a true split sentence. For example, Herman Hobbs was origi1Il11l}' sentenced to concurrent twenty and fifteen year prison terms, suspended after the completion of five years incarcer:lIion. After Hobbs violated his probation, rather than sentencing him to concurrent fifteen and ten year terms with credit for time served, the trial court resentenced him to concurrent twenl)' and fifteen ye:lr prison terms with credit for tillle served. On llppeal. the Second DCA, citillg Frazier, held that "Itlhis is the proper method to impose the re· mainder of the true split sentence, so long as the defendant recei\'es credit for his prior time in prison." Hobbs v. State, 702 So.2d 560 (Fla. 2d DCA 1997). F.P.L.P. VOLUME 5,ISSUE 6 Finally, Henry F. Johnson was sentenced on December 12, 1988, to six concurrent six-year prison terms, suspended after scrvice of threc years incarceration. However, rather than placing .JohnSOIl on probation for the remaining thrce yean, the trial court illegally placed him on communit)' conlrol for one year, followed by a five year period of probation. After Johnson violated his probation, the trial court im· posed six concurrent si:t:-year prison terms. The court awarded 350 du)'s tlS jail credit, hut no credit fOI' the time Johnson prc,'iously spent in prison. The Second DCA found lh:lt the maximum prison term that could be imposed upon Johnson's revocation of probation was Ihe three years initiall}' suspended. In· tercslingly, natwithslanding the fact that Frazier's offenscs were committed in 1980 and 1986, Ihe DCA noted: For ca.fes prior to tlte effective date of section 948.06(6), Floridtl Statlltes (/989), tltere appear to be two correct metltoll\' of imposi"G the remt,;nillg sentence after a vio/atioll of probatiotl Otl It Irlle split selltellce. First the remllillilll: sentellce clm he imposed witlt II{) credit for time previow;/y sen'ed. imlicllting tltat tlte selltellce is tlte remai"der of II true split selltellCI!. See OIllI!IIS v. State, 557 So.2t1199 (Fla. 2d DCA 1990). IlItlte altertwtb'e, lite emire sentellce clm be imposed willt filII credit [or Ihe lellgth of the illitial sell/ence. Fmzier v. S1tIte, 559 SO.2t1 II 21 (Fla.), cerro deified, 498 U.S. 834, I II S.C!. 101, 1/2 L.EtI.2fl73 (/990). Jo/tII!W" 1'. State. 641 So.2d 970, aI971-72 n.2 (Fin. 2d oCr\ 199",). Over the I:lst several yenrs. I hnve seen numerous prisoners convince the circuit courts thnt nn~' sentence thai exceeds the remaining balance of the suspended portion of what was initially a true split sen· tence is iIIeglil. III each of those instllJlCeS, the circuit COIII·tS :llso awarded credit for lime served :md unforfeiled gain time pursuant to the decision entered in Sit/Ie v. Greet/, 547 So.2d 925 (Fla.1989). I believe lhe majority, if not all, of lhosc successes callie from 1I0t only arguing what Ihe Supreme Court snid in Poorc, but .'1150 what the Supreme Court did (it agreed with the DCA that Poore could not be selltenced to a term exceeding the two years initinlJ)' suspended). Iti· IIHllely. for ench of the prisoners who rellllv prevailed, I believe that eITective writing contributed hea'· i1y toward their succcss.-bmj Criminal Defense Center 908 Thomas\ iIIe Road T:allahasst'e:. Florid:a 32303 • • • • • We: pro\ide:: Re:prescntation in all Slate and Fcdcml COUrlS Tril1lle:\cl and Appcllnlc Ie\'cl POSI Conviction Relief Clemcncy/Parole Rcvjc\\ Frec initial consultalion We lire IIl're 10 dl'ftllli )'1111 III Ihe [rdles/llnd IIlmrl' /lim J/l51/("(' IS dIm!" Lynn Allin Thompson. Esquirt. Robtrt A. Rand. Esquirt Annetlt Colkmirt. Pan legal 20 rEARS £XPERJE.N(ElFORMER PROSECUTOR call850-984-HElP NOW! Page 15 TRIAL COURT MUST PROVIDE A LITIGANT NOTICE AND A REASONABLE OPPORTUNITY TO RESPOND BEFORE PROHIBITING FURTHER PRO SE AITACKS pretation of 28 U.S,C. section 1915 (g), which provides that a prisoner who has had three or more previous lawsuits dismissed as frivolous, malicious or for failure to state a claim upon which relief may be granted. In order to proceed with a new action in fonna pauperis the litigam must allege that he/she is in imminent danThe Florida Supreme Court on ger of serious physical danger. certified conniet review has held that Florida prisoner Daniel Medberry court's must first provide a pro se filed a 42 U.S.C. section 1983 civil liligant notice and reasonable oppor· rights action claiming that when he [unity 10 respond before prohibiling arrived at Everglades Correctional further pro se attacks on his or her Institution in 1996, he informed sentence as a sanction for prior re· prison officials that because of his pealed ond frivolous motions. sexual battery offense he was in fear The Court recognized the impor- for his safety should he be placed in tant constitutional right of access to open population. Prison officials ig~ the court but detennincd that a bal· nored his plea and placed Medherry ance was needed to curb the abuse of in open population. Medberry a select few. The Court achieved claimed in his petition that his fear what it delennined 10 be the best bal· became reality and that he was both anee by directing the lower courts to verbally and physically assaulted by firsl provide litigants nOlice and an other prisoners. Medberry infonned opportunity to respond through the prison officials of the assaults one of issuance of an order 10 show cause. which included a "blade". Medberry The Court staled Ihal Ihis method was placed in administrative confinewould generate a more complete re- ment. Medberry exhausted available cord for appellate courts'. If the liti- administrative remedies prior to filgant is denied further pro se access to ing his 1983 suit in federal court althe courts, the appellate courts will leging an 8th amendment violation have an enhanced ability 10 determine for the prison officials deliberate inwhether the denial of access is an ap- difference to his safety. propriate sanction under the circumMedberry filed to proceed in stances, In reaching this opinion the forma pauperis, which the district Supreme Court approved Spencer \'. court denied because Medberry had State, 717 So.2d 9S (Fla, Ist DCA three previous suits dismissed as 1998); and disapproved Huffman \I frivolous or malicious and because he SIO/e, 693 So.2d 570 (Fla.2d DCA failed to allege that he was in immi1996). State \t, Spencer, 24 Fla, L. nent danger of serious physical inWeekly (S)433 (Fla, S.Ct. September jury. 23, 1999). Medberry appealed to the 11th Circuit and raised two issues: (I) ELEVENTH CIRCUIT whether the "three strikes" in forma NARROWLY DEFINES pauperis provision of 28 U.S.C. sec· IMMINENT DANGER OF tion 1915 (g) violates ex post facto SERIOUS PHYSICAL I JURY prohibitions; and (2) what showing must be made to allow a prisoner PROVISION OF PLRA with three strikes to proceed in forma On an issue of first impression, the pauperis because he is in imminent 11th Circuit Court of Appeals has danger of serious physical injury - a adopted the strictest possible inter- question of first impression for {he F.P.L.P. VOLUME 5, ISSUE 6 II th Circuit Court of Appeals. On the first issue, the Court rejected Medbcrry's ex post facto argu· ment. The Court noted that it had previously addressed this issue and thai the language of 28 U.S.C. section 1915 (g) makes it clear that the three strikes rule applies to claims dismissed prior 10 (hat section being adopted as part of the Prison Litiga· tion Reform Act (PLRA) of 1996. On the second issue, the Court rejected Medberry's claim that be is in imminent danger of serious physical injury because he is not presently in open population where he claimed the threat existed at the time he filed the complaint. The Court sided with two other circuits on this issue which had held that Ihe "imminent danger" must exist at the time the suit is filed or the application is made to proceed in fonna pauperis in the case. The Court also noted that Medberry could not amend his complaint to correct the "imminent danger" deficiency as he has since been tmns· ferred from Everglades C.I. Based on these facts the 11th Circuit Court AFFIRMED the district court's denial of Medberry's in forma pauperis (indigency) status pursuant 10 28 U.S. C.1915(g). See: Medherry v. BUller, et nl .• F_Jd-> 12 Fla.L. Weekly Federal (C)1226 (11th Cir.8/23/99). FOURTH DCA HOLDS THAT SECTION 947.1745 FLA.STAT. IS CONSTITUTIONAL BUT POSES A QUESTION OF WHE IS A JUDGE A JUDGE? Prisoner Jerry Gaines petitioned the Fourth District Court of Appeal for a writ of certiorari seeking review of the trial court's order dismissing his petition for writ of mandamus. Gaines filed a petition for writ (COf1flnutd 0f1 pogt 2n) Page 16 Dcar Edllor. 'Ille prison system in Florida is at the leaSI corrupt and a money laundering opcration. The focus by the big Iligs oflhe D.O.C. is so much on "process"' lhlllihey disregard Ihe ··outcomc". Whm is lhe oUlcomc you ask? Well. 10 subjecl inmates 10 scvcre punishment. bad e,(lll1lples, un, reachable lalls. and conslan, bribery. exlortion and even sla\'er)·... Theil the oulcome is Ihat Ihe "SYSTE:-'oj" is churning out monslers bacl mlo soclel~ Ibesc people don', elcn knoll h011 10 ~pell rehabilitation. let alonc being Ihal And Ihen as the cahin n.'aclion proceeds. thesc hmefilled rebellious IX'Ople lentlhcir frustration on non·aulhoritatilc people; the Ilorkcrs and builders of SOCiClY. So that means more \ ictims of crime. innocenl people hun. some killed. and Ihese snme people end up back insidc the "SYSTEt-,,!·. And nlong Ihe I\'a),lhc~ hale influenced othcrs Such as their suns. daughters or jusl neighburhood kids II'hu look up 10 them. So no\\'. 1\ hat docs lhe polilici:lns do II hen sociely cries OUI about crime? They give lhem a big la.~ bill and build more prisons. It's bc)ond me or an) nonnllilhinking.. cllring human heing lh:llihe nnS\lers to crimc is to create sliffer sentences nnd build morc prisons: all this do<:s is males the mass ofpeopk pa) more ta:\es.. and gi\cs other potential crime offenders more opportuniw:s 10 step up and take o\er II here Ihc ones Ilho :m: lod.ed up len on' Siudy shulls el'idence lhat;1 higher inellrcer<lliun rale ereales 1L slend) crime rate. II isn'l higher. ur lOller. According to NCPA Po1ic~ report No 1/9. Sept. 1998". Ime enough. crime rale is on the decline. Whtltthe)' fllillO (ell )OU is lhat Florida and California accounl for one in four mrnalcs in the Ilhole counl!') And each state spcnds billions of dollars to contend Ililh lhis each year Is this the ansllcr? Yeah righl l Take the rnone~ OUI of the criminal's hands and place ~our mom:) in the hands oflhe polilicians. and big Iligs Ilho run the shOll! I challenge ~ou people to male dem:lOds to ~ollr polilicians. lfth\.') \13nl ~our \Ole.lhen gl:l some solulions. Instead of building Ihese massile nHtlle)-uperating IlarehOllses. \Ie eull prisons und instilutions, m~ke Ihem olerhuullhe criminal juslice syslem. The legal proc\."Ss is in Icrrible shnpe and needs :111 nell syslems 10 bring fresh idculs and Solulions aboard. Focus more on hl\1 and nOl procedure or COSIS. Inslead of sa)'ing "Whm kind of hl\ls can lIe create 10 gain relribution and ones to hun himl her. LeIS male a more rcslOratil e process of lall. Where the I ictim and the ollender can gain in a bad situation. We need educati(Jt\ emphasis. 110\1 can a smart l\elL \."ducaled person full pr\.') 10 crime whcn ahem:ni\es arc there to preH:nt that? The Ill\\ lIe Ihe under since Ihe 1701J"s. brnught o\er here by people Ihlll eamc olcr frum England and therc·abouts. hns 10 be changed and modified in ordcr for a more grounded. "l'iclim-oITender" type of operative. Untillhis happens. the prison expansion will rench lhe highest highs, and our income will rcnch Ihc 100Iest 1001s. and the big-wigs will gel morc and mOl\: corrupl and Ihe institutions will gct richer. Lea\'ing c\'cry one from I'ictim 10 offcnder 10 the hard Ilorlers of our socicl~ Ilith a had f~"eling lind no I\here 10 tum. Wh)' are nOI the lawyers nod/or Inll professionals. judges. legislature. ctc.. chllmpioning Ihcsc 1l11\led lalls. )OU asl? I asl ~ou. hale ~ou eler seen a I2Qilllaw\er. or poor judge or pOor senator, etc... " j think you lnoll Ilh~ nOlI I challenge each and C\'ery one who rends lhis to spread the \\ord. and leI'S instililhoughis 10 olhers to seck a resloflllil'ejuslice syslem and 10 do away \\ith Ihe nOlI money-mongling-relribuli\'e lalls. And I encourage all of you 10 loice this to Ihe ones II hom you l'Ole for. After alt. II hy would you vOle inlO office 1I person Ilho will not walll 10 belh:r our laws and help light crime II more ProdUCli\e lind fl."Slomli\e way? You have to get in\olled and make )our IIOrd count The prison s~stem is io stalC ofehllos and needs help_ Iflle don'l Ilant 10 create monsters. tum lhem loose to our societies. and want a beller moreeduca· tionaltype of system. to cnnble lhose b..:ing released 10 lit baek inlo our communilies and be an asS..:l and not a detriment. Then I\C all beller Ilale up and slarl voicing your upinions IU the Bigwigs before il is too laIc! lbank-~ ou lor prinling this artic1cl DN.lSI' Dear FPLP. GI'I.'\.'llng:>. 1do hope Ihis letter lind~ ~ou in Ihe best ofheililh. nOlI lirst and foremost I must exprcss 10 ~ou hO\l IlonderfulI lhml your publication is. I ~rlI presenlly incarceraled iri Ihe Fluridn prison syslem. and a fricnd lei me read n few of his FI'I.P·s. lul)'/Augusl"99" issue. regarding Tercsa Burns article and 1 muSI sa) rou did:l \Ionderfuljob. Wc are nOlI cntering lhe 21st cenlur)' and I lim grmcfullhlll FPI.P and Ihe stllffarc slanding in lhe gap. I for one do not hilI c an~ outside help. I hal'e been \lanting 10 subscribe 10 FPI.P for )cats I now linally ha\'e the funds 10 subscribe I dun't hlllc much bUI mornl support so thanks for standing strong so in closing thank rou in adl'anee for all you are doing keep up lhc struggle Al Bel Dear FI'U'. I Ilritc 10 oITer my highl:sl praise for ~our publiclltion. Yours is hands down lhc Iinest sllLte prison publicmion I hale eler seen. I mail my eupy each monlh to prison aelilists in othl:r states or 10 the fell other l1edgling rag-tag nellslcners Ilith a nOle to the effect: "check oUlthis FI'LP and sec Ilhal is possible. lbL'y'rc doing Ihis in Fl. Why not in )our Slate? You can do it-iflhese people cun, then )"ou can. 100.I honestly wish there was an '"FPll''' in all 50 stllles. By Ihe I\'n) y'nl1 keep gelling better too. Keep up Ihe - work! In the Slrugglc. Dan Pens. News Edilor.l'LN Dear Fricnds, lust a nOle to give you an updale on E\crgludcs CI in Miami. I don't knOll II h:ll ~ou knOll aboul Eel and Ilhllt you don't knOll. so in thaI light I will jusllouch on thc important issues \\hich seem 10 things addressed in my FPI.P ncws paper. First in response to lhe new visiting law, lhere is no whcre for our families 10 gel away from foul wcnlher out front on visiling days here. Nothing fer the children and we cnt out of lhe vending mnchines herc. The canteen which is in lhe VP is for lhe slaff only. Also, we arc paying /lib.lcr prices /A1I/~/urs "alO"td Ctlnnot Ix prlnttd /weollSi.' ofspoIX rumC:IIO/lS UflSlg,"d Itlt~rs ",II '101 II;,> prlnt~d Or Itl/US Ihol obl'/ousfytl" not tnurllkdfor ublle:tlllQn Pltau ",dlrot.. In your f~lIers If 'Ou do nof ".ant 1/ rmted. Qlhtn.·,u FPLP "un"ts I~" ht to rlnl oil kllers rer~/I"f!dand fO edlt Itflers or F.P.L.P. VOLUME 5, ISSUE 6 Page 17 in our Cllll1een on the compound then the staff pay in theirs, Example, energizer batteries AA, advenised out in the VP for staff 50 cents a piece, we pay 94 cents II piece for ours. Same vendor, same battery! We are only allowed to get visits here every other week, 2 times a month and month's with a fifth weekend, menn no visit's. We have to alternate holidays, example· last year A-L gets Christmas visits lind M-Z do not! So the special visiting days lire granted IIccording to whose leiter it falls on. They claim this is due to space yet there arc now) full dorms closed down here out of8, for CM and confinement They could tun the visits considering max capacily for the vr llnd then allow pcople in as people leave once the max capacity is reached but the)' won 'I, Grievances arc systematically denied or go unans\~ered here. Then ifyoll take lhe nexI step which )"ou Clm ifstaffdoesn'C answer, yOIl get a DR for lying to staff and lhey will say ),ou never filed an informal and lhllt }Iou arc lying and trying 10 abuse the grievance procedurc. A bcller system is needed for filing, logging in informal grievances. As it is, Ihey do nOllog in informal grievances and the chances of your grievance never coming back arc greal, cspeciall) if )·ou hll\e a" real issue", Well,that's il for no\\. Thank you so much for all )'OU do and I surely appredllte all )'ou have done in helping with the new visiting la\\ I'\C been ill for 19 )tlIrs and its only lhrough visits thai I still have strong family ties. I write, call etc.. but the contactlhat comes from a visits arc a part of some ofm) most meaningful memories that arc alii have to sustain me from day to day as I slowly have lost so many family mem~rs throughout the ycars duc to dcath. Its just my Dad and me now, but God bless him he still comes every other \\ed. and J am just as much suppon for him, as he is for me. WN ECI Dear FPLP, I'm currentl)' fighting my Ct-.I placement. Although the rules are e1eat, I'm getting next to no relief. I was put on CM) al Mayo CIon )-20-98. In May '98', I received 2 DR's, I saw lhe Board in Sept. '98", and was put ofT until MIlICh '99'. In Dec. '98', I was wrinen II lhird DR for having 5 stamps in my pocket while on "runaround" stalUS. When I saw the Board again in l\'larch '99'. it WIlS delemlinecllhlll lowed 65 days of DC time (plus, they could tack 0/1 30 more dllyS 10 make me complete 13 "full" months on CM stalus), and lhat I would be continued on eM 3 until June '99', Two weeks aftcr that hearing, I was lransferred to Okeechobee lind my CM) placement was follo\\cd. BUl, in ~lay'99' ,I was ine:<plicnbly taken in fronl of the Board here at Okeechobee and upgraded to CM 2. Chapter ))·38.006(7) specifically states thaI an institution recei\iing a CM inmate can review th.:!t inmlltes CM placement but 9!!: !!Q! -upgrade" him "until continuing ~ha\'ior dictales an increase in the level ofCM," This connotes that Ill)' level ofCM should have been determined solely on my behavior !!!kr I was transferred, Okeecho~e's administralion argues that my "serious disciplinary histOf)" "''as grounds to upgrnde me. The E!!!!£ disciplinal)' histof)' that was in evidence for the Board at ~Iayo CI to consider in March'99' just prior to the transfer. What changed, other than Ute institution? I ha\e had no DR's at Okeechobee. and all my monthly evaluations hn\'e been "abo"e satiSfactory", 5, \\ here is the" continued behllvior" p.1ttem required by the rules to justify this upgrade? ~line is just one example of\\idespread disregan:l for rules when it comes to placing or keeping inmates in CM I'm fighling this placement tooth and nail, I encouragc e\el)'one to document cve/) legitimate \\Tong incurred them on C~'l. Uniled we stand Divided \Ie fall (and fllil).1\ITOCI Dear Friends, YOur legal infomllltion is the life blood to thc judicial s)"slem. Our access to Ihe couns through lhe law libraries arc a big joke. The onl)' lhing is, we're nOllaughing. Keep up the good work. Those of us on CM 2 rcally appreciatc your hard work. The stnfflll FPLP arc in our thoughls and prayers. RTBCI Dear FPLP, I'm on CM at Washington CI and it is pure hell. We are treated very badly in every aspect. Every time we leave our cells for rec~:ltion, showers, anything, Ihe)" lear our room apart 1\ledical is almost non-existent, We never sec a doctor. I cut myself and nC\er C\en sa\\ all)' kind ofdoctor period. We really need help here. This is an 50S to anyone Ihat can give assistance. There are people here \\ho have ~en on Ct-.I I for 2-) years without DR's They juslify it by so called "wrile ups" on a contact card. The captains threaten to gas people al e\ef)' lum. This place is tonure. The) put me on C1\1 I for n urine lest and said because I "''as on C\I ~fore ilS okay. On canlttn \Ie can'l order a comb or Q·tips. From stan to finish this place is a \\aste camp. 1I's hard to even care here because lhey subjecl you 10 so much persecution, This has to stop. Thcsc officers arc crazy and really believe that lheir job is to punish us. We need help Bad!! AF wei Dear Friends: Ilmve told people and I will continue 10 say it, "If a pCrsOIl does not have a lovcd one, family mcmbcr or fricnd in lhc prison system, THEY HA VE ABSOLUTELY NO IDEA-NONE AT ALL. Thcy arc truly 'clueless'. Your publication helps to open our eyes. "Thank you" is nOI enough. AP F.P.L.P. VOLUME 5, ISSUE 6 Page 18 ~POST CONVICTION ATTORNEYS~ J ~OREN I I D. RHOTON , M1CRAEL V. GIORDANO Attorney At Law Attorney At Law (813) 226-3138 (813) 695-2612 _(813) 228-0070 • • APPEALS (;) STATE POST CONVICTION (f) SENTENCE CORRECTIONS $ FEDERAL PETITIONS FOR WRIT OF HABEAS CORPUS (~ NEW TRIALS $ • I 412 East Madison Street Suite 1111 Tampa Florida 33602 (813) 228-0070 (813) 221-2182 fax he biring of II lawyer is aD important decision Ihne should not be bu.'Ced soleI)' on IIdvcrtisemenls. Before ),ou decide, ask us 10 send you free written in(ormnlion about our qUlIlificatiODS. F.P.L.P. VOLUME 5, ISSUE 6 Page 19 F_ PNon LBlt StfJSCRJITfJON FORJI X P.O. 801 66G-387 ChWuata. FL 32766 H so. please COOIplclC lhe below infonnitOJ and send i1 to fPLP 10 Perspeetives lhal !he mlilinillist can be updated and 10 you doo't miu III iasue. om A'IliDiR·....'1: P1eue check type subscripl:ial. desired: N~, 0 0 0 lnsti:u.timI8U1~ ReoC'lial S30IJr (OJeck Type) lndiviWaJ $12/yr N~, b,,, .. -. C;,y s"" Zip DC' .0><" """ City SIBte Zip (Plew Prinr Clearly) Unused U.S. postale atamps are accq:J(cd for 5ubscripioru in the amount indicated. Mate check! or mcney o:ders payable to Florida Prison Leul Ptl'$pectivea. Pub\iVJ.ed hi·monthly. .\;O\ 99 of mandamus against the Florida Parole Commission concerning his eligibility for parole release. Gaines was sentenced in 1977 to life in prison. Under the statutory parole system in cffect at the lime of sentencing a trial judge could rClain jurisdiction over a defendant so lhal the judge's approval in connection with the parole commis- sion's approval was necessary for the prisoner's release. Cf. 947.16 (3), Fla. SI31.(Supp.1978). It is significant to note that Gaines' judge did not rctain jurisdiction ovcr him. Aftcr many years in prison, Gaincs bccamc cligible for parolc consideration. Several presumptive parole releasc dates (PPRD) were set for Gaines. The Parole Commission set a presumptive parole date of September 7,1992. On October 1. 1986. the Florida Legislature amended section 947.1745 (4), Fla. Stat., to require the Commis· sion to notify and seek comments from thc sentencing court when an inmate was within 90 days of his or her effective parole release date (EPRD) interview. The statute was further amended and codified as section 947.1745(6). An added caveat required notice to the chief judge in the evcnt the sentencing judge was no longer serving. The chief judge was then permitted to designate , F.P.L.P. VOLUME 5, ISSUE 6 Daled:,·,==",;;;-;,"n-= Mail To: FPLP, P.O. &1 660-387, ChuluOIa, FL 32766 any circuit judge within the circuit to act in the place of the sentencing judge. Pursuant to the 1986 statutc, the Commission notified Chief Judge Leonard Ri"kind of Gaines' parole release because the sentcnc· ingjudge had retired in 1991. Chief Judge Rivkind obviously designated himself to act in thc place of Gaines' sentencing judge and objected to the release. Based on the comments of the judge. the Commission extended Gaines' PPRD to September 7.1997. On May 12, 1997.' Judge Alex: Ferrer was designated to act ill place of Gaines' sentencing judge and he too objected to Gaines' release. Based on Judge Ferrer's objection, the Commission extended Gaines' PPRD to September 2002. Gaines sought and was denied administrative review ofthc Commission's decision. In July 1998, Gaines filed a pctition for \Hit of mandamus alleging that section 947.1745 was unconstitutionally applied to him. His argument \\as predicated on an ex: post facto application. He also argued that the Commission failed to comply with the statute bccause his sentencing judge. Judge Morpho- nios. still serves as a judge. Gaines contcnded that the Commission should have solicited comments from his sentencing judge. Ironically. Gaines' daughter contacted Judge Morphonios about the prospective parolc and Judge Morphonios responded by stating "it is my position to remain silent on this issue.. ,'. The trial coun dismissed the petition without obtaining a response from the Commission. Citing a rim Districl Coun case. Gallis \I. Florida I>arole Commission. 535 So.2d 640 (Fla. 1st DCA 1988). lhe trilll COllrt determined that the Sliltute did 110t constillltc all ex: post facto law. The order funhcr noted Ihm Judgc Morphonios was retired and that the Commission actcd ill lIccor· dance with the statute by sending notice to the chiefjudge. Gaines sought certiorari revic\\ in the Fourth District Court of Appeal. The Fourth Districl Court rca· Joseph R. Truitt Paralegal Services P. O. Box 834 Stuart, FL 34995 (561) 219-7367 Specializing in Post Conviction Assistance Page 20 soned that although 947.1745 are penal in nature and that it was applied retroactive\y to Gaines it did not disadvantage Gaines. The Court reasoned that although the sentencing judge or a designated substitute judge can negatively influence Gaines' chance for parole, the Commission retains the ultimate discretion 10 grant parole despite a judge's objection. The Court found the statute to be procedural instead of punitive. Thus, the ex post facto claim failed. The Court did find some merit to Gaines' contention that his sentencing judge continues to "serve" as a judge, despite her official retirement. The Court noted that several recenl cases show that Judge Morphonios is actively serving as a judge. The Coun stated that if the sentencing judge is still available for comment because she is still "serving", albeit as a senior judge, then it is appropriate to obtain her input, as opposed to that of a judge who did not participate in the original case. While the Court did not decide whether Judge Morphonios was "serving" or not, the Court did quash the order dismissing the complaint and remanded for the trial coun to issue an order requiring the Commission to respond to the petition on the claim that it failed to secure comment from the sentencing judge. Gaines v. Florida Parole Commission, 24 Fla. L. Weekly (D) 2210 (Fla.4lh DCA September 22, 1999). (Comment: It is axiomatic that retired judges often go in and out of retirement as needed by either the circuit they operate from or the district One day a judge may be retired, one day he may not. There does not appear to be a semi-retired status as compared to a actual retired slat us. To eliminate Ihis type of scenario from occurring again perhaps more Ihought should be given to the term relired and il5 meaning with respect to the above statute. It is disadvantageous for a prisoner to place his fate F.P.L.P. VOLUME 5, ISSUE 6 into the hands of a judge who has no knowledge of the original case. The su~slitute judge will not be able to recall the facts of the ease. Those facts mAy have left some doubt as to the defendant's guilt which could be n factor in considering parole.-ohl RULE 1.070(j), F.R.CIV.P., DOES NOT APPLY TO PETITIONS FILED PURSUANT TO RULE 9.100 (c)(4), F.R. APP.P. Prisoner James Frnnkenberry filed a Petition for Writ of Mandamus pursuant to Rule 9.100(cX4), F.R.App.P., in the 17th Jud. Circuit Court challenging a DOC disciplinary proceeding. The circuit coun sent a notice to someone other than Frankenberry, but intended for Frankenberry, instrucling the filing of a statement of good cause" why a copy of the petition had not bee!) served on the respondent. Since Frankenberry never received the notice he did not respond 10 il. After 120 days had expired the circuit coun dismissed the action pursuant to a rule governing the service of initial pleadings in regular civil aclions, i.e. 1.070m, F.R.Civ.P. Frankenberry appealed and the appeal court found that he "was de· prived of his due process rights 10 notice and opportunity to be heard prior to dismissal of his petition be· cause the circuit coun mailed the notice to the wrong person." Additionally, the appeal coun clarified that the 120·day service requirement of Rule 1.0700) does not apply to mandamus petitions filed pursuant to 9. I OO(c)(4). The appeal coun QUASHED the circuit court's dismissal and returned the case to the lower court for further proceedings. See: Frat/kenberry \I. Moore, _So.2d _ 24 FLIV 01970 (Fla. 4th DCA 8125199). (Comment: Normally, pro se prisoner pelitioners do not serve the respondent with 3 copy of the petition. Usually. once the perifion is filed with the court the court will review the petition and if it stales n prima facie case (cause of action on its face), then the court will issue a show cause order that eiIher incorporates the faclS slated in Ihe petition or accompanies a copy of the petition directed to the respondent. The court usually serves the respondent with a copy of the petition with the show cause order, not the petitioner. A court may direct a petitioner to serve a copy of the petition on the respondent, but only after a show cause order has been issued. For further understanding of Ibis subject, see: PIa. Jur. 2d, Mandamus, sections 162-17I-sj) FIRST DCA REVISES OPINION REMOVING RECOGNITION OF "MAIU FILED WITH AGENCY CLERK'" PROVISION OF RULE 33-29.009(8)(a), F.A.C. In the last issue of FPLP, in the Notable Cases section, the case of Ortiz v. JHoore, 24 FLW 01497 (Fla. 1st DCA 6/22199), was noted. The DCA has now revised lhal opinion following a morion for rehearing/clarification filed by the FDOC, to completely remove the AITENTION FLORIDA INMATES ONLY 52.50!! Gel Your Inlernel Rap Sheet Now!! ALONG WITH YOUR FRAMABLE COl.OR D.O.C. PHOTOGRAPH The photo is great for loved ones or friends!! Order two copies and gel the 3rd FREE! Send 52.50 M/O·CHK+SASE or 10/.32 Siamps 10: Photograph, 761 NW Kingston 51., PSl, Fl34983 Page 21 • recognition of Rule )3-29.009 (8) (a) which provides that responses to grievances or administrative appeals to the DOC centrol ortice arc "deemed filed with the agency clerk" as reflected by a stamp on the grievance stating "mailed/filed with agency clerk" along with the date. This revised opinion completely eviscerates the first decision and Icaves the DOC with wide latitude to argue "when" a final response has actually been given to a grievance for purposes of computing when the time began to run to file judicial challenges to denials of administrative grievances or appeals. That dale is 1110st crucial when challenging denial of disciplinary appeals whcre judicial remcdics must be sought within 30 days of the response denying the administrativc appeal, per 9. I 00(c)(4), F.R.App.P. See revised opinion: Orri= II. IHoore, 24 Fla. L. Weekly (D) 1997 (Fla.!st DCA 8/25/99). DENIAL OF ADMINISTRATIVE GRIEVANCES NOT APPEALABLE DIRECTLY TO THE DCA Prisoner Anthony Whitehurst filed an appeal directly to the DCA following the denial of an administrative grievance by DOC officials. The DCA noled thnt Whitchurst has done this before and that dcnial of prisoncr administrative grievances is not appealablc to thc DCA pursunnl to section 120.68, Fla. Stat. The only appeals that may be filed directly to the DCA by prisoncrs are those stated in section 120.81 (3) (a), Fla. Slat. The DCA DlSMISSE.D Whitehurst's latest appeal and advised him if he continucs to institute such appeals thc court will consider sanctions to ensure his frivolous filings do not further disrupt the court. See: Whirehurst v. DOC, et aI., _So.2d__. 24 Fla. L.Weckll' (D) F.P.L.P. VOLUME 5, ISSUE 6 2048 (Fla. lSI DCA 9/1/99). [Comment: In practicc, only denials of petitions to initiate rulemaking filed by prisoners to the DOC pursuant to section 120.54 (7), Fla. Stat., are directly appealable to the DCA per the provisions of section 120.68,Fla. Stat. -sj] PRISONERS MUST FULLY EXHAUST ADMINISTRATIVE REMEDIES UNDER PLRA Georgia prisoner Charles Harper filed a section 1983 civil rights complaint alleging cruel and unusual punishment for prison officials' refusal to provide medical treatment. The district COllrt dismissed the case without prejudice because Harper had not fully cxhausted the available inlernal administrative grievance process of the GA prison system. Harper appealed to the 11 th Circuit COlirt of A"ppeals. The II th Circuit determined that Harper had filed a grievnnce, but that it was denied as untimely. Harper did not appeal thai denial as he could have done according to GA prison regulations. Harper claimed on appeal that such an administrative appeal on the untimely issue would have been futile. and because of that he exhausted all the administrntive remedies Ihnt were available, and thus, satisfied the requirements of the Prison Litigation Reform Act of 1996, 4~ U.S.C. sec. I 997e(a). The appeal court disagreed with Harper's argument The court noted that Harper could have admi.nistratively appealed the "untimely" grievance denial, and if he could show "good cause" for filing the grievance untimely, then he would have been allowed to file an oUI-of-time grievance (and presumably exhaust the denial of medical treatment issue). Therefore, the appeal court AFFIRMED the district COlirt'S dismissal of the complaint without prejudice for failure to exhaust administrative remedies. Sec Harper 1'. Dr. .Ienkin, el al., 179 F.3d 1311 (11th Cir. 1999). THE STATUS OF PAROLE IS A CONSTITUTIONAL QUAGMIRE Recently, I learned that Virginia At 4 torney Thomas E. Smolka of Richmond, Virginia has filed a petition for writ of habeas corpus he has filed 011 behalf of a Virginia inrn<lle. who has demonstrated proof of psychological stability and concrete evidence of rehabilitation. It is my understanding thm Mr. Smolka believes his client has been unfairly denied parole without having been afforded a fair determination of his eligibility for parole by a neutral and unbiased tribunal. The petition alleges as one of its' grounds for relief, that the refusal of the Virginia Parole Board to exercise its discretion to grant parole pursuant to Va. Code Ann. Section 53.1-134 et seq., has effectively abolished parole even for all eligible prisoller who has exhibited genuine signs of rehabilitation. Smolka claims his client has becn denied protection from retrospective ex post facIo legislation. in that, the 1997 enactment of Va. Code Ann. Section 53.1-134 placed an insurmountable hurdle before his client in seeking parole. and resulted in punishment more severe than reasonably contemplated by statute at the time Smolka's client commilled the offcnse. Smolka argues that whcn the Virginia Gencral Assembly amended Section 53.14134 , it placed on the Parole Board a person (a victim advocate) who invariably possessed an in4 terest diametrically opposed 10 his client. an obstacle nOI present when his client was sClHcllced. Page 22 Smolka claims that when the Virginia State Prison in Starke was arrested Genera' Assembly amended Section September 23rd as he anempted to 53.1·134 to provide that one member leave the prison with 5300 in of the Parole Board shall be a repre· marked bills that had been gi\'en to sentative of a crime victim's organi· him by a prisoner to allegedly purzation or a victim of crime, the Gen· chase marijuana. eral Assembly effectively altered the Prison officials said Manning's arpossibility of his client 10 attain pa· rest was not connected with thc inrole. Smolka argues that the victim vcstigation into the beating dcath of advocale most certainly harbors a prisoner Frank Valdez at the sallle slrong bias against persons who have prison on July 17th. commined a crime and may wholly Officials Slate Manning had come ignore recommendations from institu- under suspicion back in March tional staff and independent evalua· when Fla. Depanment of Law En· tors (psychologists, sociologists, etc.) forcemenl and FDOC began inves· that the inmate be granted parole. tigaling an escape pIal. Prison Smolka argues that an impartial deci· guard uniforms, weapons, duci lape sian-maker is crucial 10 fundamental and ether escape items were found fairness, and that the placement of the and three prisoners were identified victim's advocate on Ihe Parole as plolting to escape. Board has yielded signilicant changes One of those prisoners, whose iden· in the parole system. Mr. Smolka hos tity was withheld by prison offi· alleged that parole has evolved from cinls, participated in setting up a a consistem 'incentive for individual sting operation by giving Manning rehabilitation to a mere illusion of marked money to purchase mari· compliance to statutory authority by juana and return it to the unidentithe Parole Board. As a result, Smolka lied prisoner. argues that the punishment for his Manning was charged with possess· client has been rendered more oner- ing contraband in a correctional faous that the punishment contemplated cility and violating prison rules that at the time of the offense, which has prohibit officers from accepting resulted in impermissible ex post anything from prisoners. facto legislation. Manning was immediately lircd by Ihe FDOe when arrcsted. Prison Additionally, Mr. Smolka has alleged oflicials once ngain claim this was a number of other grounds for relief, an isolated incident lind llot part of including a claim that his client has a widespread problem. been denied due process - in that, the (Source: Or/aI/do Selllinel. Parole Board's actions have been ar· 9/25/99]. bitrary. abusive and contrary to slatu· tory authority. GOVERNOR BUSJ-I AD~IITS FPLP will be following the progress of this action. FSP PRISON GUARD ARRESTED IN DRUG STING OPERATION teven R. Manning, 52, a prison guard with the Florida Department of Corrections (FOGC) for 10 years. and who worked at Florida F.P.L.P. VOLUME 5, ISSUE 5 TO NEGLECT IN I'RlSO 'S Governor Jeb Bush has openly admitted Ihat the sHlle's prison systcm suffers from years of neglect and that the Dcpartment of Corrcctions "erred" in failing to provide adequale medical hClllth care to a SI. Petersburg woman who died in a prison last year. In a wrillen response to a series of anicles published in the Sf. Pc- /ersbllrg Times, Bush pledged that improvemellls are coming 10 the I .7 billion dollar a year prison system. Bush provided no details as to what would be done to improve the system. Bush requested Corrections Secretary Michael Moore to recom· mend a plan of action that will ensure a change in the culture of a depanment that has sllffered from years of neglect and lack of leadership. (Source: Sf Petersburg Times. October 2,1999] • PRISON LEGAL NEWS -Perhaps lhe mosl dmiled journal describing the devc10pmenl of ['rison 101\ is I'rison Legal NeIlS,· -- Marti Ihlen. Director Prison LllII Projccl of thc National U\I)Crs Guild. PLN is B 24 page. monthly magazine. publish~d sinc~ 1990. ediled by Washington stutc prisoners l'nul Wright and Dan Pcns, Each issue is packed Ilith summnries and nnlllysis 0 recent court rulings dealing with prison rights, wrinen from a prisoner perspecli\c. Also included in each iSSue 3fC ne\\'s articles deoling \\ ith prison-related snuggle and aeli\ ism from the U.S. and around lhe Ilorld I\nnual Suhscriplion rates 3fe 515 for prisonen;. If )ou ean'l alford 10 send 515 01 once. scnd llt least 57.50 llnd ....e .... ill pro-mte )our subscription llt 51 2S per issue. Please send no tess than 57.50 per donation. Ne\\ (Unused) U.S. postage stamps may be used as pa)menL For non·incarcerated indil'iduals.. Ihe subscriplion ratt is 52SJ)r. Institutional subscriptions (for llllOme)s. libraries. government agencies. non-governmentnl organizations. etc,) arc S60/yr Snmplc copies arc available for 51 Contact: Prison Legal News PMB 14& 2400N.W.801hSL Se:11I11: WA 98117 ATTENTION LAW CLERKS If you have suffered relalialion at the hands of FDOC officials as a result of the performance of your law clerk duties or in response to your personal grievances or litigation actiVities. send the details to: Jurislic Legal Aid Org. POSt Office Box 24923 Oakhmd Park. FL 33307 Include copies ofany grievances. Page 23 Florida Depanment of Corrections 260 I Blair Stone Rd. Tallahas ee FL 32399-2500 (850) 488-5021 Web ite: www.dc.stale.O.us moe FAMILY O~lBUD MA "he FJXX.' has nlll:8-cdl)' crealcd a nc\\ poSlllon in the centrol onice 10 addre~\ comphunts and pro\'lde asSIS- lance 10 pu\{mer's ftumhes and friends $)1\'13 \VIIham~ ''0 Ihc FIX>C cmplo)cc nppolOltd llS the "hmll} Omhudsman . According to Is Williams. fhe Ombud m:lJ\ \\01..... 3S %1 medUllar bet"«rl (anllh~. IOmal and the department to rench the most clll:cll\C re.-",:llutlon·· The F(X)C Fanlli)' Services 1ll)Ihnc is loll·free I-8QO-S58..fH88 moc SPA The FD<X. ha nlso crc:lIed a help Ime to :lS.$ISI governor to oversee the rJorida J)cpanmenl Office of the Governor PL 05 The Capilol Tallahassee FL 32399-000 I (850) -188-2272 Chief Inspector General Cltucn's Assistnnce Admin of Corrections. advise the governor and legislature on corrccllomll i- ucs. and promote public education about the Florida. The correctional S) stem In ommission holds regulnf meetings around the sUUe \\hich the public rna) Bncnd to input on issues Span- and problems plOblmtS "lth Tallahassee FL 32399·2450 (850)-188·2952 Coordinator Janet Kecl~ Florida ParoleIProbation Commission 2601 Blair Stone Rd .. Bldg C Tallahassee FL 32399-2450 (850) 488·1655 Prisoners families and friends are encouraged to cOlllnc:llhc Commission 10 adVise them of problem areas. fhe ommission 922-1637 .&88·71.&6 CommissiOn/Government Acc()umablilly 10 Ihe People.. 922-6907 Office or EXCCUlhc Clemelle) 2601 Blair StOlle Rd I3Idg. C. Room 229 3fTccting the correctional :-oystcm in Florida I. h·.. pcnkllll:! Clllleno; obmm mforrnatlon from Ihe depnnmellt I Ina IllnlOll IS lIle I'DOC employee III Ihl position ("onlacl I·SOO-Sl0-4:!-I8 tUI} 1'lC Florida arrections COlllmission i composed of eight CltllCnS appointed by the provide I III1ELPLINE IPh::ue mrllll1\ FPIJ) of ~ou hnH lile al\(I\C 'iCrvICes) Florida Correction, Commission 2601 Illmr lone Rd TalJahasec Fl 32399·2500 (850)-113-9330 FiLq850)-li -9141 EMail: fcorcom"i11111Iil.dc.SltlIC.n.U5 Web Slie w,",,,,, do-. ~Int; 11 uslrgllvngencll:s/fcc is independent of the FDOC .md is interested in public particlpnuon .tnd commenlS concerning the O\crsight 01 Ihe FDOC Depanmcnl of Law Enrorc~ncnt 1'.0. Box 1489 Tallahass<:c FI 32302 (850)-188-7880 Web Silc: ww\\fdlc.. lalc n u... Florida Resource OrganiLations Florida Institutional Legal ef"\ ices IIIO-C W 8th A\c Gainesville FL 32601 (352)955·2260 FiL" (352)955-2189 EMail: liIs@afn.org Web itc: w\\ \\ .afn.orgifilsJ Families wilh Loved ones In Prison 710 Flanders A \C. Daylona Bch FL 32114 (904)254-8453 E~lail: Oip'aafn.org Web Site: \\\\\\.afn.org/ nip Restomthc Justice Ministr)' Nel\\ork 1'.0. Box 819 Ocala. FL 34478 (352) 369-5055 Web: \\ \\\\ .rjmn.ncl Email: BCn1ic~rJmn.m:t II '"~ FLORIDA sun CRIPTIO PRISON EXPIRATIO ?? Please check ),our mailing label for the date that )'our subscription to FI)LP "ill eXI)ire. On the top line \\ill be reOected a date such as • ... 1\13r 00... •. That date indicates the last month of your current subscription to FPLP. 'Vhen )OU receive the FPLP issue for that month. ple.ase rene" your ubscription immediately so that lOU do not miss an bsue of FPLP. Your support through subscription donations make5 publication possible and i greatly appreci:ued. Please take Ihe time to complete the enclosed subscription form 10 subscribe 10 or renew )'our subscriplion to FPLP. If the subscription form is missing, you may write directly. enclost the requesled donation, to subscribe. Moving'! Transferred? Please complete Ihe enclosed Address hangr 'olice so that the mailing lisl cDn be upduted. l"justiL'e unywhere is n threat 10 justice e,'er)'where. - Martin Luther Killg, Jr. F.P.L.p. VOLUME 5, ISSUE 6 LEGAL FLORIDA PERSPECTIVES ,I PHI ON NON-PROFIT U. . POSTAGE LEGAL PER PECTIVE 1'.0. BOX 660-387 CH LaTA, FL 32766 OVIEDO, FL PERMITNO.6S PAID I Page 24