Vol. 11, Nos. 29 & 30
Covering Cases Published in the Advance Sheets through July 26, 2004

Blakely - The Lionhearted versus the Chickenhearted

Prisoners' Rights - Some Significant New Rulings

U.S. v. Hammoud, No. 03-4253 (4th Cir. 08/02/2004) (Per Curiam)
U.S. v. Koch, No. 02-6278 (6th Cir. 08/13/2004) (Per Curiam)
U.S. v. Mooney, No. 02-3388 (8th Cir. 08/06/2004) (Per Curiam)

In these three cases, the Fourth, Sixth and Eighth Circuits, sitting en banc, issued brief orders, effectively holding that the Supreme Court's recent ruling in Blakely v. Washington had no impact on the validity of the Federal Sentencing Guidelines and that the district courts should continue to use the Guidelines for all Federal sentences - at least until the Supreme Court clarifies its position. In so ruling, the Sixth and Eighth Circuit broadly retreated from earlier decisions by three-judge panels which had held that Blakely invalidated the Guidelines.

The facts behind the Hammoud decision are particularly revealing because they starkly capture much of what the Blakely debate is all about. In that case, the defendant’s sentence was increased from a Guideline sentencing range of 46-to-57 months up to 1,860 months (155 years!!!) based on facts relied upon by the district court that were neither charged in the indictment nor proven to a jury beyond a reasonable doubt. A majority of the en banc court affirmed that sentence, after concluding that Blakely did not invalidate the defendant’s sentence under the Guidelines. In its brief order, the Court also stated:

“[D]istrict courts within the Fourth Circuit are hereby instructed to continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely. In the interest of judicial economy, however, and pending a definitive ruling by the Supreme Court, we recommend that district courts within the Fourth Circuit announce, at the time of sentencing, a sentence pursuant to 18 U.S.C. § 3553(a), treating the guidelines as advisory only.”

The Court’s order also noted that majority and dissenting opinions would follow - an approach also promised by the Sixth and Eighth Circuits - although so far no published decisions have been released in any of these cases.

Kane v. Winn, 319 F.Supp.2d 162 (D.Mass. 05/27/2004) (Judge Young)

Every so often, a decision addressing barbaric prison conditions and prisoners’ rights stands out as beacon of light that jolts our sensibilities. In recent years, two decisions by Judge Justice of the S.D.Tex. stand out as examples of that genre: his 125-page decision in Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex. 1980) (Ruiz I) and his follow-up decision 21 years later, Ruiz v. Johnson, 154 F.Supp.2d 975 (S.D.Tex. 2001) (Ruiz II). Those two cases addressed the “rampant overcrowding, inadequate security, substandard health care, inappropriate disciplinary practices, and substantially impeded access to the courts” in the Texas prison system. (Ruiz I, id., at 1384).

Equally significant was Judge Henderson’s epic study of the horrific and unconstitutional conditions that he found at the Pelican Bay State Prison in California (a supermax facility); and which he reported on in depth in his classic decision in Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Calif. 1995). In the instant case, Judge Young referred to Madrid decision with these chilling words:

“The Madrid opinion is one of the longest this Court has ever encountered, so rather than summarizing it, the Court simply recounts a typical incident in the Madrid court's description of ‘a conspicuous pattern of excessive force. A diminutive, nonviolent, and nonthreatening inmate refused to return his food tray after a correctional officer insulted him. In response, several officers fired two rounds from a 38 millimeter gas gun into the cell; fired a taser gun, hitting the inmate in the chest and stomach; hit him on the head with the butt of the gas gun and knocked him unconscious; stepped on his hands and beat him on the calves with a baton while he was unconscious; again beat him into unconsciousness when he came to; and dragged him out of the cell face-down, at which point his head was bleeding and a piece of his scalp had been detached or peeled back. (Kane, id., at 192-93) (Internal citations omitted).

The instant case is the latest of that long line of eye-opening and noteworthy decisions that summarizes the state of prisoners’ rights in America. Judge Young wrote this lengthy decision in the context of a suit filed by Michael Kane, a plaintiff inmate housed at the Federal Medical Center-Devens in Ayer, Mass (FMC), seeking better medical care. Specifically, Kane sought habeas relief under 28 U.S.C. § 2241, seeking to compel the BOP to give him proper medical treatment for his chronic hepatitis C condition and a number of other ailments. Alternatively, Kane sought his transfer to another facility, or his outright release from the FMC; and he moved for appointment of counsel and requested a jury trial.

Ultimately, Kane’s motion for the appointment of counsel, for a jury trial, and for summary judgment were denied; and the Warden’s motion for summary judgment was granted. But the significance of this decision is its timely and detailed study of the law relating to such inmate claims.

Judge Young started his treatise by noting that, if current incarceration rates remain unchanged, “6.6% of U.S. residents in 2001 will go to prison as some time during their lifetime.” (Id., at 166). He wrote:

“The sheer number of incarcerated people in the United States means that any human rights problems in our prisons, particularly if they are at all systemic, will impact a great many of our citizens. At the end of 2002, 2,166,260 persons were incarcerated in the United States (1,361,258 in federal and state prisons, 665,475 in jails, and 6.5% in private prisons.” (Id., at 181).

Of even greater significance was Judge Young’s analysis of the high representation of what he called “marginalized groups” in the incarcerated population. He cited a number of revealing examples, including the following:

In his decision, Judge Young surveyed and reviewed the various types of deprivations that prisoners in America still face in our prisons and jails. He detailed (and documented, by reference to cases and independent studies) problems such as torture and ill-treatment by the police and prison guards; the rampant sexual abuse of female prisoners by male guards; prisoner chain gangs; and the “excessively harsh regime[s]” of America’s growing reliance on the debilitating supermax prisons where inmates (many of whom are not even considered dangerous) are locked away “in small, sometimes windowless, cells sealed with solid steel doors” for 23 hours a day. (Id., at 192).

Judge Young also documented some of the most chronic conditions affecting prisons, such as overcrowding, “degrading, unhealthy and unsafe conditions,” and the notoriously poor and inadequate medical and mental health care provided to the ever expanding prison population.

In short, this decision is an extremely valuable resource for anyone seeking to understand the state of the law governing the rights and remedies of prisoners in America today.

U.S. v. Rios-Flores, 318 F.Supp.2d 452 (W.D.Tex. 01/21/2003) (Judge Justice)

We have no idea why this decision, which is dated more than 18 months ago, took so long to be published; but we are relatively certain that some heads will role now that Judge Justice’s ruling has finally leaked out. Both the facts and the ruling in this case are quite unusual - almost to the point of being amusing.

Julio Rios-Flores is a Federal inmate who was serving time at the Val Verde Correctional Facility in Texas. That facility is owned and operated by the Wackenhut Corporation; but it is subcontracted to Val Verde County as a county jail. The County in turn has contracted with the Federal Government to house federal inmates in that facility; and most of the inmates (at least in January, 2003) were Federal prisoners and detainees.

Julio was indicted, under 18 U.S.C. § 1791(a)(2), for possession of heroin while he was an inmate at Val Verde. He defense was both creative and novel: he argued that Val Verde was not a “federal penal facility” within the meaning of § 1791(a)(2); and accordingly he moved to dismiss the indictment against him.

To the Government’s chagrin, Judge Justice granted the motion and dismissed the indictment. He agreed with Julio that the term “prison,” as used in § 1791(d)(4) means only “a federal correctional, detention or penal facility”; and that “the ownership of the facility rather than the nature of the inmates controls the nature of the institution.” (Id., at 453).

Thus, at least until the statute is changed or this decision is overruled (and as of August 24, 2004 this ruling had not been challenged or overruled), Federal inmates in Texas who use drugs in private prisons will have to be prosecuted under applicable state laws rather than Federal laws.

Ramirez v. Pugh, No. 02-2101 (3rd Cir. 08/12/04) (Judge Cowen)

In 1996, Congress enacted a law that bars the BOP from distributing to inmates materials that are "sexually explicit or feature[ ] nudity." That law, which became known as the Ensign Amendment after its sponsor, is now codified at 28 U.S.C. § 530C(b)(6). As with many such posturing “feel-good” laws, the Ensign Amendment was enacted as a last-minute add-on to a comprehensive budgetary bill.

In a previous case that challenged the broad sweep of the Ensign Amendment, District Judge Sporkin observed:"No hearings were held by Congress in enacting the Ensign Amendments and no committee report was issued. No discussion of the statute appears in any Conference Report." (Amatel v. Reno, 975 F.Supp. 365, 367 (D.D.C. 1997) Amatel I)).

In fact, the one floor statement cited by Judge Sporkin was the following statement made by the appropriately named Representative Christiansen who barked: "It is deplorable . . . to think that America's Federal prisoners are granted access to vulgar, sexually explicit materials while serving time in our Federal prisons. . . . It is time to stop this ridiculous cycle of hypocrisy and end prisoner's (sic!) access to sexually explicit materials. I believe that this bill will make sure prisons are punishment, not playgrounds." (Amatel I, id.)

The D.C. Circuit upheld the constitutionality of the Ensign Amendment in Amatel v. Reno, 156 F.3d 192 (D.C.Cir. 1998) (Amatel II); and the BOP then implemented that law by publishing a series of sweeping interpretative regulations (available at 28 C.F.R. § 540.72(b)), which assigned exceedingly narrow, subjective meanings to some of the words contained in the Ensign Amendment. (E.g., "nudity" means "a pictorial depiction where . . . female breasts are exposed."). There, the matter has quietly rested since 1998 - until the Third Circuit rendered its decision in the instant case.

Now, in response to a pro se challenge by inmate Marc Ramirez, the Third Circuit has found that Judge McClure acted too quickly in upholding the facial validity of the Ensign Amendment solely on the basis of he BOP’s naked assertion that the law is necessary to promote prison rehabilitation. Instead, the panel concluded, the district court should have conducted hearings to determine whether imposing such a ban on all inmates - and not just sex offenders - meets the Supreme Court’s requirement in Turner v. Safley, 482 U.S. 78 (1987) that prison rules must be “reasonably related to legitimate penological interests.”

In remanding the case back to the district court, the Court wrote: “We do not find the connection between the Ensign Amendment and the government’s rehabilitative interest to remain obvious upon consideration of the entire federal inmate population, including those not incarcerated for sex-related crimes.” In short, the Court told Judge McClure at least to question the BOP’s assertions rather than blindly accepting whatever it said.

We assume that someone in Congress will now propose impeaching - if not beheading - the three judges who joined in this decision.

In Brief

Challenges to BOP Sentence Calculations: U.S. v. Smith, 318 F.Supp.2d 875 (C.D.Cal. 03/18/2004) - This is a rare case in which the Court acknowledged that, while district courts “do not have the authority to compute sentence credits for the time a defendant is detained prior to sentencing . . . once administrative remedies are exhausted . . ., prisoners may then seek judicial review of any pre-sentence custody credit determination by the BOP.” (Id., at 877). Accordingly, the Court construed the defendant’s motion pursuant to 28 U.S.C. § 2255 as being a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and directed the BOP to recalculate the length of his prison term to reflect a pre-sentence custody credit for the period from December 16, 1999 through June 25, 2001, which the BOP had previously denied.

Punishment and Humiliation: U.S. v. Gementera, No. 03-10103 (9th Cir. 08/09/04) - In this case, a divided panel from the Ninth Circuit affirmed a special condition of supervised release that required the defendant, who was convicted of stealing mail, to stand outside a local post office wearing a sandwich board that said: “I stole mail. This is my punishment.” In a strong dissent, Judge Hawkins protested, stating: “Conditions of supervised release must be reasonably related to and ‘involve no greater deprivation of liberty than is reasonably necessary’ to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553(a)(1)-(2); 3583(d)(2); United States v. Williams, 356 F.3d 1045, 1056 (9th Cir. 2004). Clearly, the shaming punishment at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous. Because humiliation is not one of the three proper goals under the Sentencing Reform Act, I would hold that the district court abused its discretion in imposing the condition.”

He then concluded: “A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. ‘When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him.’ . . . To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill ‘a sense of disrespect for the criminal justice system’ itself.” (Internal citations omitted).

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