Portfolio Assessment Narrative_1

THOMAS EDISON STATE COLLEGE

PORTFOLIO ASSESSMENT NARRATIVE on

PRISONERS' RIGHTS LAW & POLICY [ FROM A JA I LHOUSE LAWYER' S PERSPECTIVE]

13 y-

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Student No. 139-40-6069

BACHELOR OF SCIENCE/HUMAN SERVICES

LEGAL SERVICES SPECIALIZATION

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TABLE OF CONTENTS

BRIEF PROCEDURAL HISTORY 1

LEGAL CONTRAST BETWEEN

PRO SE LITIGANT & JAILHOUSE LAWYER 2

NONTRADITIONAL LEARNING EXPERIENCE

IN PRISONER'S RIGHTS LAW & POLICY 15

SELECTED BIBLIOGRAPHY 30

TABLE OF CASES 32

INDEX 34

A

PENNSYLVANIA INSTITUTIONAL LAW PROJECT

924 CHERRY STREET, SUITE 523

PHILADELPHIA, PENNSYLVANIA 19107

ANGUS R. LOVE PHONE . (215) 925-2966 EXECUTIVE DIRECTOR

FAX: (215) 925-5337

December 19, 1996

Thomas A. Edison State College Trenton, New Jersey 08625

RE: Hiram R. Johnston, Jr.

Dear Sir/Madam:

I am writing a letter of verification per the request of the above-referenced individual. I am the Executive Director of the Pennsylvania Institutional Law Project. We are a legal aid organization that provides free legal services of a civil nature to the over 60,000 institutionalized persons in the Commonwealth of Pennsylvania. Prior to holding this position, I was a staff attorney for Montgomery County Legal Aid.

I first met Hiram Johnston. around 1980, when he was housed in the Delaware County Jail. I found him to be a bright, articulate and well-intentioned individual. I have kept in touch with him over the years, comparing legal notes, case reviews and strategies. His work product is thorough, well researched and articulate. He has been a tremendous benefit to our office on a number of occasions.

The plight of the jailhouse lawyer is not an easy one. Needless to say, the jailers have little appreciation for the efforts of individuals such as Hiram. Thus the working environment is not of the highest caliber. Despite these obstacles, Hiram has made a conscientious effort to move forward and advances the causes that he believes in. I have taken the time to review his portfolio assessment narrative on prisoners' rights law and policy. I find it to be of the highest caliber. He has hit all the key points and mentioned the key cases. His analysis of those cases in the prison context is done in a very professional manner. He is up-to-date on the latest developments, including the recent passage of the Prisoners Rights Litigation Act, This guide can be quite useful to less experienced jailhouse lawyers and novices in the areas of prisoners' rights. This work is consistent with past efforts of Hiram's that I have reviewed over the years.

Siy,

g us Love

ALJral cc: File

December 19, 1996 Page Two

I hope this information is helpful. Please feel free to follow up on any and all issues raised or any additional concerns you may have.

1

2

MESSAGE FROM THE PRESIDENT Pennsylvania Moves to Tighten Commutation Process

by Angus R. Love, Esq.

The new administration in Harrisburg has taken several

steps to reform the commutation process Immediately upon tak-

ing office, Governor Tom Ridge made good on his campaign

promises by calling the legislature into a special session on

crime. Included in the session were several bills aimed at

changing the procedures of the Pennsylvania Board of Pardons,

which governs the commutation process. The proposed legisla-

tion would require a unanimous vote of the five-member board,

prior to sending a recommendation for commutation to the gov-

ernor.

Angus R. Love, President

Other proposals which have been enacted give

victims greater input into the process, recommend

variations in the board's composition, and change requirements

for a public hearing. The unanimity bill was passed and signed

by Governor Ridge. However, it does not yet become law, since

these changes involve the Pennsylvania Constitution. The bill

must be passed in two consecutive legislative sessions and be

approved by a voter referendum before the changes can be

implemented.

Governor Ridge made the commutation process a

central issue in his campaign last fall. After the arrest of com-

muted lifer Reginald McFadden on a murder charge, Ridge

blasted his opponent, who had voted for McFadden's release.

He promised changes, if elected, and has delivered on that

promise. Unfortunately, many important facts about the process were lost in the public debate.

Pennsylvania already has one of the strictest policies in the

country regarding release of those serving life sentences. All but

a few states have a set term of years for a life sentence, followed

by eligibility for parole release. Generally, the minimum num-

ber of years served is from 15 to 30 in most states. However, the only release mechanism available in Pennsylvania for those

serving a life term is through the commutation process.

Pennsylvania also utilizes a broad set of parameters in

determining who is given a life sentence. Individuals

sentenced to first or second degree murder receive life.

Pennsylvania's felony murder rule also allows for individuals

not directly involved in a murder to be sentenced to life.

Juveniles certified as adults can also receive a life term. All these

unique sentencing provisions have resulted in one of the largest

lifer populations behind bars in our country.

Historically, the commutation process has worked as a safety

valve for lifers who have no chance of parole. Until 1980, gov-

ernors routinely commuted a few dozen sentences each year.

Prosecutors were aware of the process and took that into con-

sideration when seeking a second degree murder conviction.

Such sentences were usually commuted after 10 to 15 years had

been served. Around 1978, with the election of Governor

Richard Thornburgh, the commutation process was sharply

curtailed in response to the new governor's tough law and order

stance. Only seven people were commuted during his eight

years in office; a judge's son and a police officer's son were

among those commuted. Governor Casey continued this trend;

though he did commute 25 sentences in eight years, many dur-

ing his last years in office. The Pennsylvania Prison Society supports a viable release

mechanism for individuals serving a life sentence. We believe

that it is important to keep hope alive for those who are serving life. Additionally, the benefits of such a policy extend to prison

officials, who then have an additional management tool

available to them in addressing the burgeoning lifer population.

Governor Ridge indicated that he will only consider

recommendations for commutation if innocence is at issue, or if

the person is near death. We urge the governor to reevaluate his

position, as there are already adequate judicial mechanisms in

place for such cases. We believe that many other cases are

worthy of consideration, such as second degree convictions,

women suffering from battered women syndrome, juveniles

sentenced as adults, accomplices, and those whose sentences

were disproportionate to others involved in the same crime.

Our criminal justice system is not foolproof. We need mech-

anisms like the commutation process so that injustices can be

remedied. But only a viable process that is not subject to shifting

political winds can provide this safety valve against injustice. It

is important to maintain such a system, so that compassion and

redemption remain constitutive elements of our system of

criminal justice.

DOI§OR.OPTION PLAN -400094

(0.x.199§ifall,CaMpaign,iS poclerta)yPlease

remember: the Prison Society through the Donor Option Plan.

PPS's"donor I.D. is # 00094.

PENNSYLVANIA INSTITUTIONAL LAW PROJECT

924 CHERRY STREET, SUITE 523

PHILADELPHIA, PENNSYLVANIA 19107

46* \OV

cl4S 1<C

Hiram Johnston AM3014 R.D. 3, Box 500 Hunlock Creek, PA 18621-9580

1111111111111111111111111111111111111111111111111111

1 I 1 1 I I 1 I I 1 1 1 1 1 111,111„11,11"111„1111.1„ ,1,1.14,1.11. fillml

PRISONERS' RIGHTS LAW & POLICY PORTFOLIO ASSESSMENT N AR RAT IVE

By

HIRAM R. JOHNSTON, JR./Student No. 139-40-6069

(BRIEF PROCEDURAL HISTORY]

My pito 6e experience in the field of law encompasses two decades of seA-

Flap atigation experience. This experience began shortly following my

arrest on June 11, 1976 in New Brunswick, NJ by the FBI on charges of

unlawful flight to avoid prosecution. I was subsequently charged on

criminal indictments in the jurisdictions of Camden, NJ and Chester, PA.

I was initially lodged in the Camden County Jail in lieu of one million

dollars cash bail on charges of felony homicide stemming from a 1974

armed robbery of a supermarket where a bystander was killed during an

exchange of gunfire between escaping bandits and police. A detainer was

lodged against my liberty by the Delaware County District Attorney,

Media, PA charging me with being a fugitive stemming from a 1974 armed

robbery of a supermarket in Chester, PA where an off-duty police

detective moonlighting as a security guard was shot in the arm during an

unsuccessful attempt to apprehend two bandits in the course of the

theft.

On August 25, 1976 I was extradited to PA to stand trial on the PA

indictments prior to the commencement of the Camden, NJ trial

procedures. Unable to afford paid counsel and unsatisfied with court

appointed counsel I proceeded under the legal authority of Faretta -vs.-

Califorina, 422 U.S. 806 (1975) to waive the appointment of court

appointed counsel and act as my own attorney. Trial and extradition

procedures spanned a period exceeding five years and resulted in a

conviction on the PA indictments [following seven months of pre-trial

proceedings and an eleven day trial] and an acquittal on the NJ

indictments [following nine months of pre-trial proceedings and an eight

day trial].

During this period I acquired a vast amount of theoretical and applied

traditional legal expertise in the field of criminal and civil law

through nontraditional means of pu) 6,e litigation and icatitowe taullgA

PORTFOLIO ASSESSMENT NARRATIVE PAGE NO. 2

related activities. Specifically as this applies to the areas of legal writing and research, criminal law and procedure, constitutional law and issues, civil litigation and practice, evidence, trial advocacy, prisoners' rights and self-help litigation, administrative law, torts, iAqteA cilia. This includes but is not limited to hundreds of hours of in-court pto 5e litigation during criminal trials and related procedures, federal civil rights actions, habeas corpus procedures, evidentiary hearings, depositions, pre-trial conferences, settlement negotiations, etc. My plo 6e activities on my own behalf eventually resulted in my providing mutual -legal aisoi/sta,ncz to other prisoners and acquiring a reputation as a jaithage lotuyeA. I have also worked in conjunction with scores of attorneys, paralegals, law professors, law students, legal programs and prisoners' rights agencies.

[LEGAL CONTRAST BETWEEN PRO SE LITIGANT & JAILHOUSE LAWYER]

Although the terms pto ae 4/ litigant and faUhoude lawyer t are frequently used interchangably to imply the same mode of activity or function there is, in fact, a marked distinction between the definition of the two terms. It is essential to delineate this distinction in order to parallel the types of legal experience akin to each mode of activity which corresponds with their historical backgrounds in the field of law.

The term jai/thou/se iampA is defined by Black's Law Dictionary, 6th Edition as:

"An inmate of a penal institution who spends his time reading the law and giving legal assistance and advise to inmates, especially those who are illiterate." Citing; Johnson -vs.- Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).

According to Black's Law Dictionary, Id. the term pto 'Se means:


"For one's own behalf; in person. Appearing for oneself; as in the case of one who does not retain a lawyer and appears for himself in court."

The distinction between the two terms is quite clear. In the first

instance the term faithowse lawyer is described as an inmate of a penal

in/stitution ... who ptouides teooa co,siotance and advice to (other) inmate's. In the

second instance a pto oe litigant is ostensibly one who litigates j01 OMeO

own delta44; in pen/son, appearing X01 oneseM4.

In the former case one acts on behalf of another while in the latter one

acts as an advocate on one's own behalf (which no doubt gave birth to

the expression that: "an individual who has himself for a client has a

fool for an attorney.") Another observation between this distinction is

that in the case of the self-advocate or plo 6e tikigant, this individual

is not necessarily an inmate of a pima institution, while in the latter

instance a jail/Lowe tawym is only authorized or empowered to dispense

such legal services while under conditions of incarceration. Otherwise,

a laymen who provides such 4.e401,1 amsi/stame and adoi/se to other laymen may be subject to a charge of unauthorized practice of law.

Thus, it appear that inmates are the only class of individuals who are

not members of the legal profession who are legally authorized to

dispense iegat aMiStatice and aMMe to other laymen. Such legal

authorization derives directly from the U.S. Supreme Court ruling in

Johnson -vs. - Avery, supra. However, in Johnson, Id. the Supreme Court

referred to inmates who provide legal assistance and advise as w't

wliten/s instead of foalltowe tawyem. Accordingly, it would appear that (vat

WPAite4 is the original generic term for this class of individuals which has subsequently come to be referred to as jailhowse

Despite the general acceptance of the term faiihmve iatlyytA by most

judicial authorities, the term continues to remain subject to individual


interpretation by the various courts. One federal court maintained that

the term icalhmoe i4141/WA enjoys no definition. The federal district court

in Tillery -vs.- Owens, 719 F.Supp. 1256 (W.D.Pa. 1989), while

acknowledging the right of iaiUNI/Se Lawyeo to exist in the absence of

other sufficient alternative sources of legal assistance provided by

prison officials, stated:

"We also appreciate that a 'jailhouse lawyer' enjoys no definition. Any inmate can claim to be one. SCIP authorities may define the term 'jailhouse lawyer' and maintain an approved list of inmates with that designation."

Regardless of what specific term is applied to prisoners with knowledge

of law who assist other less knowledgable prisoners, whether the term is

(vat w/mRet, jaithowe tauvelc, inmate pautega, taw clerk, etc., since Johnson, Id.

was decided by the U.S. Supreme Court in 1969, inmate who are unable to

perform their own legal research and case preparation have a

constitutional right to legal assistance from other inmates capable of

performing such legal functions, absent sufficient alternative means of

legal assistance provided by prison officials.

The central issue in determining whether a prison rule, regulation or

policy prohibiting inmates from giving or receiving legal assistance is

valid is whether prison officials have provided a reasonable alternative

to such mutual inmate assistance. Corpus -vs.- Estelle, 551 F.2d 68 (5t

Cir. 1977). Five days following the Appeal Court's decision in Corpus,

Id. the U.S. Supreme Court decided Bounds -vs.- Smith, 97 S.Ct. 1491

(1977) reaffirming its previous decision in Johnson, supra. and required

additional measures to assure rnzaningi,ut access to inmates able to present

their own causes, Id. at 1492. The Court further held that prisoners,

pen, 'se, have a fundamental constitutional right to meaningful access to

the courts and that this right requires prison authorities to assist


inmates in preparation and filing of meaningful legal papers by

providing adequate law libraries or adequate assistance from persons

trained in the law, or some combination of the two measures.

Federal courts have often enjoined prison authorities from arbitrarily

interfering with established inmate legal organizations which provide

legal assistance and advise to the prison populations. In Wade -vs.-

Kane, 448 F.Supp. 678 (E.D.Pa. 1978) the district court granted a

prisoner's motion for a preliminary injunction enjoining Graterford

prison officials from closing an in-prison law clinic (Paraprofessional

Law Clinic) operated by inmates. Nine years later the same federal

court granted a permanent injunction against Graterford prison officials

enjoining them from colosing the Paraprofessional Law Clinic. See: U.S.

Ex Rel. Paraprofessional Law Clinic -vs.- Kane, 656 F.Supp. 1099

(E.D.Pa. 1987). In Valentine -vs.- Beyer, 850 F.2d 951 (3d Cir. 1988)

the U.S. District Court for the District of NJ held that inmates at

Trenton State Prison were entitled to preliminary injunction against

implementation of changes to prison's legal assistance program and the

Third Circuit Court of Appeals affirmed the decision of the district

court on appeal of the issue.

The law is also well established that ical4mge lativem have a right not to

be harassed or retaliated against by prison officials for rendering

legal assistance, filing law suits against prison officials, or being

otherwise engaged in constitutionally protected activity. In Buise -

vs.- Hudkins, 584 F.2d 223 (7th Cir. 1978) the Court of Appeals held that

because a transfer of a jailhouse lawyer from state farm to state prison

violated rights of other farm inmates, jailhouse lawyer was entitled to

declaratory and injunctive relief that his transfer was improper. The

U.S. District Court, M.D. Alabama in McCray -vs.- Bennett, 467 F.Supp.

187 (1978) held that sentencing jailhouse lawyers to disciplinary

confinement for assisting other inmates to file complaints in court is

unlawful. In Vaughn -vs.- Trotter, 516 F.Supp. 886 (M.D.Tenn. 1980) the

411 PORTFOLIO ASSESSMENT NARRATIVE PAGE NO. 6

court held that in guaranteeing the right of mutual assistance in order

to insure access to the courts, the U.S. Supreme Court has created a

derivative right, vested in jailhouse lawyers, to provide legal

assistance to other prisoners, and thus punishment or harassment of

jailhouse lawyers aimed at deterring their work is not constitutionally

permitted. Cubing; McCrav -vs. - Bennett, Supra. In Nickl -vs. - Schmidt,

351 F.Supp. 385 (W.D.Wisc. 1972) the district court held:

"It is clear that the right to receive legal aid would be empty if correctional authorities were free to punish its donation. Thus in order to protect the right of the donee to legal help, the donor threatened with punishment for providing legal assistance must be permitted to assert the donee's right."

It should be quite clear at this point that despite the negative image

often associated with the term icalitove (awye't, the U.S. Supreme Court has

recognized the function of jailhouse lawyers as a valuable check and

balance within the scheme of the criminal justice system. For the past

twenty seven years courts have mandated constitutional protections must

be afforded to those functioning in such capacity (although this right

is enforced increasingly more reluctantly). The right of pito ,se atigants

(self-representation) have endured for a substantially longer period.

The U.S. Supreme Court in Faretta -vs. - California, 422 U.S. 806 (1975)

stated:

....In the federal courts, the right of self-representation has been protected by statute since the beginning of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat., 73, 92, enacted by out First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead, and manage their own causes personally or by the assistance of ... counsel....' The


right is currently codified in 28 U.S.C. § 1654."

Thus, the right of the pto oe 1A.tigant has been codified (protected by

statute) "since the beginning of our Nation" (1789). Yet, it was not

until Faretta, supra. was decided by the U.S. Supreme Court in 1975, 186

years later, that criminal courts were forced to recognize the right of

criminal defendants to waive the appointment of court appointed counsel

and act as their own attorney. By contrast, the right of mutual

assistance among inmates is still in its infant state of existence being

only twenty seven years old and not codified under any statute.

The right to proceed pto ,se as one's own attorney during a criminal

trial, however, is not absolute in all circumstances, U.S. -vs.-

Purnett, 910 F.2d 51, 55 (2W Cir. 1990) 1-ftiat judge moto4tigedto accept every

de4endant'6 invocation of bight to 6e4H4eptesentationl; U.S. -vs.- Watson, 1 F.3d

733, 735 (8th Cir. 1993) Ni,ght 6e44--/ept&setvtation not denied (phew ommt iwAieved

that deknciala did not wmiemtamd Of1410ge6 and could not corNoaentty 0°c:zed pro 6e].

Nor may a pto :%e defendant claim her own ineffectiveness as a ground for

appeal. Faretta, 422 U.S. at 834 n. 46; U.S. -vs.- Chapman, 954 F.2d

1352, 1363 (72 Cir. 1991); Menefield -vs.- Borg, 881 F.2d 696, 700 (9th

Cir. 1989) (dictum) rthe accLe■ed hco Utile utc.cume against the jai tilso cawsed ty his

own indAtiAcine4,5."]; See: U.S. -vs.- Smith, 907 F.2d 42, 45 (6th Cir.)

Ide4emolant, not enUtied to imp tibtaty &Num, may not argue ineihectioe am44tance on

appeal in tegaui to hies own pto 6e proceeding dosed on Limited 44vseatch wioulicw], cert

denied, 498 U.S. 986 (1990).

Accordingly, the bare right under Faretta, supra. to waive the

appointment of court appointed counsel and act as one's own attorney by

no means includes constitutional protections to insure that such

representation is meaningful. As it applies to mutual assistance, while

illiterate and uneducated prisoners have a constitutionally protected

right to receive legal assistance from jailhowe Lomoyem, this right does

not include in-court representation by jailhouse lawyers. Thus, once a


jailhouse lawyer has performed the required legal research, document

preparation, etc. necessary to state a cognizant cause of action sufficient to require a hearing in court on the issues presented, there is no further right to in-court representation at evidentiary and other

hearings integral in obtaining ultimate relief. Thus, the right of

mutual assistance (like pew ,se te0e4entation) by no means insures that such

representation is meaningful.

The Sixth Amendment to the U.S. Constitution, which guarantees verbatum

the right to the assistance of counsel, inteA a, a., in criminal cases, was

ratified in 1791. However, it was not until 1963, 172 years later, when

the U.S. Supreme Court in Gideon -vs.- Wainwright, 83 S.Ct. 792 (1963)

held that indigent criminal defendants were entitled to assistance from appointed counsel. [Ironically, the initial petition submitted in the

Gideon, supra. case was filed by a jailhouse lawyer] Prior to Gideon,

Id. thousands of indigent, illiterate, uneducated and mentally ill

persons were convicted and sent to prison without the benefit of counsel for their defense or having knowingly and intetiAgemtty waived their right to counsel.

Accordingly, throughout the history of the country the enforcement of

existing laws or enactment of new laws, whether statutory [taw neated wits tegiaation] or common law Haw geneitated ty coat dimizioms] is frequently

a matter of bipartisan political expediency, i.e., whatever is most

expedient in manipulating the political climate of the time (and, of

course, the popular vote). The enforcement of law (or lack thereof) is

often a reflection of social sentiments and public apathy, inter alia.

["GET TOUGH ON CRIME- POLITICAL AGENDA -V6.- PRISONERS' RIGHTS]

In the current "get-tough-on-crime" political climate existing Prisoners' Rights pet 'se are under constant assault. Over the last two decades the rights of prisoners have been consistently reversed,


revised, restricted and undermined by the U.S. Supreme Court, federal

district and Appeal Courts around the country, and by State and Federal

Legislation. For the most part only an empty eggshell remains of the

substantive rights retained by prisoners which existed twenty years ago

in many important areas of consideration.

In 1981 the U.S. Supreme Court opened the door for prison officials

throughout the country to double the capacity of their prisons through a

process of doate ceAling prisoners in cells previously considered too

small for double occupancy. In Rhodes -vs.- Chapman, 101 S.Ct. 2392

(1981) the Supreme Court held that despite the findings that (1) inmates

under consideration were serving long terms of confinement, (2) the

prison under consideration housed 38% more inmates than its design

capacity, (3) the results of several scientific studies recommended that

each inmate should have at least 50-55 square feet of living quarters as

opposed to 63 square feet shared by double-celled inmates, (4) that

double-celled inmates are required to spend most of their time in the

cell with their cellmates, and (5) that double-ceiling was not a

temporary condition, these considerations fell far short of the mark of

proving an Eighth Amendment claim of cruel and unusual punishment.

Justice Marshall, in his dissenting opinion in Rhodes, supra. at 2411-12

stated:

"In a double cell, each inmate has only

some 30-35 square feet of floor space...

Most of the windows in the Supreme Court

building are larger than that."

Presently, the practice of ,otced double-(2,afing in tiny cell with no regard

for length of sentences and other considerations have resulted in

cellmates murdering and seriously injuring each other with no Eighth

Amendment implications.


In Hewitt -vs.- Helms, 103 S.Ct. 864 (1983) the U.S. Supreme Court

severely restricted prisoners' rights to pumedwua due ',woe's's in

connection with administrative segregation. The Court held that there was no constitutionally based liberty interest in remaining in general

population and out of administrative segregation, even though it assumed

that conditions were the same as punitive segregation. The Court

further held that prison officials could base their decision to confine

prisoners in administrative custody on mere rumor, subjective

evaluations, and intuitive judgments rather than concrete, objective

evidence. Under Hewitt, supra. an informal, nonadversary evidentiary

review is sufficient to support the decision that a prisoner represents a security threat and the decision to confine the prisoner in

administrative segregation indefinitely.

In 1984 the U.S. Supreme Court greatly increased the standard of proof

required for criminal defendants to prove allegations of ineffective

assistance of counsel (which is the most widespread ground for appellate

relief raised throughout the criminal justice system). Strickland -vs.-

Washington, 104 S.Ct. 2052 (1984). The Strickland, supra. Court

established a two prong test to evaluate claims of ineffective assistance of counsel. To obtain a reversal of a conviction, the

criminal defendant must prove: (1) that counsel's performance fell below

an objective standard of reasonableness, and (2) that counsel's

deficient performance prejudiced defendant resulting in an unreliable or

fundamentally unfair outcome of the proceedings. The Court held that

the second prong of the test requires more than a showing that the

outcome of the proceeding would have been different but for counsel's

error. Additionally, if a defendant fails to satisfy one prong of the test the court need not consider the other, and under the performance

prong of the test there is a strong presumption that counsel's

strategies and tactics fall "within a wide range of reasonable professional assistance."


Prior to Strickland, supra. criminal defendants did not have to show how

counsel's ineffective assistance prejudiced them, rather, once it was

established that counsel was ineffective the conviction would be

reversed. The increased standard of proof has significantly reduced the

number of successful ineffective assistance of counsel claims throughout

the country.

More recently the U.S. Supreme Court in Wilson -vs. - Seiter, 111 S.Ct.

2321 (1991) increased the standard of proof necessary to prove

conditions of confinement constitute cruel and unusual punishment by

requiring a showing of detikitate indifyieteztce, i.e., a state of mind

possessing actual knowledge of impending harm, easily preventable, so

that a conscious, culpable refusal to prevent harm could be inferred

from a failure to prevent it. Wilson, supra. requires prisoners to

prove both and objective element - that the deprivation was sufficiently

serious, and a subjective element - that a prison official acted with a

sufficiently culpable state of mind. Young -vs.- Quinlan, 960 F.2d 351,

359-60 (3d Cir. 1992); See also: Hudson -vs.- McMillian, 112 S.Ct. 995

(1992); Farmer -vs.- Brennan, 114 S.Ct. 1970 (1994).

Due to the heightened proof requirements set forth by the Wilson, Id.

Court many more Eighth Amendment claims brought by prisoners are

dismissed on summary judgment in favor of prison officials because of

the extreme difficulty in proving the ouipieotive state of mind prong of the test.

Congress has recently accelerated the systematic assault upon Pli/so► et SeA -Help Litigation by passing the Prison Litigation Reform Act of 1995

[PLRA] (which became effective April 26, 1996), which in effect,

substantially modified the In Forma Pauperis statute, 28 U.S.C. §1915,

et seq. as it applies to civil actions filed by prisoners. Essentially, the PLRA tends to discourage prisoners from pursuing any form of civil

action (habeas corpus, mandamus, civil rights actions, etc.) by


requiring them to pay mandatory costs and fees regardless of how

destitute an individual may be.

If a prisoner has no funds in his prison account the PLRA requires that

prison officials garnish his account and remove percentages of any funds

which become available in the account (regardless of how meager the

amount). This is the current status of the law. Not only are insolvent

prisoners now required to spend half of their last dollar on litigation

costs and fees (if they are to have their legal issues heard), if their

funds are insufficient they are further required to go into retroactive

debt by having their accounts garnished or their meager prison wages

held in escrow until the costs and fees of the litigation have been

satisfied (which could take years).

More likely than not this will cause a chilling effect on indigent

prisoner litigation throughout the country and create a tremendous

disparity between the rights of indigent and affluent classes of

persons, which heretofore was considered to be an unequivocal, flagrant

denial of equal protection of the law. The U.S. Supreme Court has

previously stated that "to impose any financial consideration between an

indigent prisoner of the State and his exercise of a state right to sue

for his liberty is to deny that prisoner the equal protection of the

laws." Smith -vs. - Bennett, 81 S.Ct. 895, 896 (1961).

Today it is politically expedient for Congress to pass new legislation

deliberately intended to curb the flood of prisoner litigation now in

the federal courts (rather than address the widespread inhumane

conditions of confinement brought about by extremely overcrowded

conditions of confinement, warehousing, etc. which are the actual cause

of the flood of litigation pending in the courts). Federal Appeal Court

began chipping away at prisoners' equal protection rights prior to the

passage of the PLRA in a syncronized effort to discourage in &Yana 12au appeals of pto 6e civil rights suits by taxing costs in substantial

amounts against prisoner litigants (whether or not such appeals were


considered f/tivotows). See for example: Weaver -vs.- Toombs, 948 F.2d

1004 (64 Cir. 1991); Freeze -vs.- Griffith, 849 F.2d 172 (50 Cir. 1988),

and James -vs.- Quinlan, 886 F.2d 37, 40 n. 5 (3d Cir. 1989) where the

Court of Appeals for the Third Circuit stated:

"There is a genuine judicial concern about

the preceived recent surge in ptooe civil rights

suits by in ‘olinta paupeta/s state prisoners."

These Bills of Costs are now routinely ranging hundreds of dollars. In

PA the maximum prison wage is $0.41 per hour. At that rate paying off a

Bill of Costs ranging hundreds of dollars could take years. The actual

intent, pwtpme and leisuitt is to discourage many prisoners from pursuing

appeals of adverse decisions in civil rights cases. However, judicial

rationale is allegedly to force prisoners "to confront the initial

dilemma which faces most other civil litigants: is the merit of the

claim worth the cost of pursuing it?" Braden -vs.- Estelle, 428 F.Supp.

595, 596 (S.D.Tex. 1977). However, the fact is that most prisoners

(unlike "most other civil litigants") are destitute and, therefore, the

actual question is: "whether the merit of the claim is worth going into

debt for the next several years?", which, is not "the dilemma which

faces most other civil litigants."

In the present fervent "get-tough-on-crime" atmosphere politicians have

taken full advantage of public apathy created by election campaign

rhetoric and the like to pass omnibus crime bills and other legislation which discontinued higher educational funding for prisoners throughout

the country, i.e., Pell Grants and Incarcerated Veteran's Benefits under

the GI Bill, etc. State agencies for higher education have followed the

federal example and discontinued providing any educational funding for

incarcerated persons. Thus, modem political agenda to "get-tough-on-crime" apparently includes retracting educational opportunity and

systematically obstructing equal access to the courts by destitute


prisoners (perhaps as a form of izgri/qatioeteivaititation).

Many state legislators are currently contemplating a return to the

eighteenth century archaic "chain gang" form of prison system previously

disregarded by Modern Correctional Standards as an affront to human

dignity pet e and most legal authorities previously viewed as "violating

standards of decency which mark the progress of a maturing society."

Trop -vs. - Dulles, 78 S.Ct. 590, 598 (1958).

Under perceived unconstitutional conditions of confinement the most

cherished and important right prisoners have is their First Amendment

right to "petition the government for a redress of grievances." More

often than not imprisoned persons are unable to obtain assistance of lawyers (whether privately retained or court appointed) and, thus, must represent their own causes pto 6e. It would appear that the ongoing

judicial and legislative efforts to undermine prisoners' right to

meaningful, unfettered access to the courts will eventually return

prisoners to the mentality level which perpetuated the chain reaction of

prison riots throughout the country during the 60s and 70s.

Increasingly, prisoners are beginning to realize that their right to

"petition the government for a redress of grievances" is little more

than a farce. Undue political obstruction of this right by legislative

measures such as the PLRA constitutes an assault upon the very

foundation of checks and balances without which the First Amendment right to "pe47,44u14 petition the government for a redress of grievances"

will, for the most part, become an illusion for imprisoned persons and

be replaced by more dramatic forms of protest like the insurrections at

Attica, New Mexico and more recently Camp Hill.

On April 24, 1996 the Antiterrorism and Effective Death Penalty Act of

1996, Pub.L.No. 104 -132 became law. This Act further regresses the rights of prisoners in the area of criminal litigation and expedites the

demise of condemned prisoners by further constricting procedural due


process rights of appeal, 'WW1. aUa. Current legislation aimed at

keeping prisoners out of court and college appears to be consistent with

a systematic plan to return them to the chain gangs of yesteryear (some

states have already begun this process) and expedite the process of wide

scale execution of condemned convicts. Under the old system of liberal

procedural due process and appellate review procedures there were,

nevertheless, instances of innocent persons being executed. The

question which materializes here is: Knowing that the liberal system of

appellate review failed to prevent the execution of some innocent

individuals, why has Congress further limited the appellate review

process for condemned convicts?

Even in the face of this syncronized onslaught against prisoners'

litigation rights "the pen vs (still) migiaim than the NAyoul." The most

effective strategy to counteract the current backslide of existing

rights is effective communication with potential outside sources of ass-

istance, i.e., attorneys, prisoners' rights groups, local and national

legal organizations and law schools, news media, members of Congress and

State Legislators, etc. The more efficiently prisoners are able to

communicate their issues to society, the more likely they are to

eventually replace the present medieval system of criminal justice with

more sophisticated concepts of Modern Correctional Goals befitting

twenty first century knowledge in all areas of scientific and moral

advancements.

[NONTRADITIONAL LEARNING EXPERIENCE IN PRISONERS' RIGHTS LAW & POLICY]

I have spent the last twenty years of imprisonment in practically every

conceivable condition of confinement possible in numerous state and

federal prisons and county jails. For the most part prison officials

have viewed me as a threat to the security of the prison system and

negative influence upon other prisoners. This perception has resulted

in my having spent nearly twelve years in "the hole" [various states of


disciplinary and administrative custody statuses in Behavior Adjustment

Units, Maximum Security Units, Segregated Housing Units, Restricted

Housing Units, etc.] Translated in terms of reality, however, their

actual motive for isolating me was their perception of me as a

prisoners' rights activist and jailhouse lawyer with a propensity for

filing suits against prison officials on behalf of myself and other

prisoners and general threat to the status quo of overt official

oppression pervading the prison bureaucracy.

To greater and lesser degrees isolated housing units are specifically

designed to modify and control behavior patterns through various types

of neo-Pavlovian and Skinnerian techniques of Behavior Modification &

Mind Control. My years of confinement in these units, coupled with my

college background in psychology and various technical books I have read

on the subject of Behavior Modification have provided me with an

extensive insight into the nature of this subject from a personal

experience point of perspective.

When an individual has been labeled by prison officials as a "security

risk" or "behavioral problem" (particularly those with a history of

filing suits against officials) it is practically a foregone conclusion

that one will become the target of a syncronized form of systematic

harassment and retribution aimed at modifying their behavior by any

means necessary (often with fatal results).

PLO 6e civil rights complaints under 42 U.S.C. §1983 alleging such

violations of one's constitutionally protected rights are usually doomed

to failure because federal courts are inclined to bend over backwards to

their ankles in favor of prison officials' diwaiomm4 actiA ►0 and

routinely grant them "qualified immunity" from suit. Especially in

cases involving 1ktigi4,tornifsomem (those inclined to engage in suit against

officials). In fact, suits filed by individuals considered by the

courts as litigious prisoners are usually processed by the same federal


judge and magistrate team. With very few exceptions such suits are

usually disposed of on summary judgment, often on the basis of purely

illogical reasoning, misrepresentation of facts and law, as well as what

appears to be a deliberate misinterpretation of the English language

itself. In most instances appeals to the Circuit Courts of Appeals and

on certiorari to the U.S. Supreme Court fair no better.

By 1979 federal courts around the country were deferring to the "hands

off policy" regarding discretionary functions of the prison

administrations which has traditionally been considered the province of

prison officials rather than federal courts. Specifically as this appl-

ies to matters relating to internal order, discipline and institutional

security. In Bell -vs.- Wolfish, 99 S.Ct. 1861, 1877 (1979) the U.S.

Supreme Court held:

"Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain instit-utional security."

The "hands off policy" (and scores of other tegat Loopholes) enables prison

officials to impose all sorts of de facto punishments upon prisoners

simply by relabeling their actions. For example, it is illegal for

prison officials to retaliate against prisoners for exercising their

constitutional right to sue them, so instead of overtly retaliating

against a prisoner by throwing him in the hole for filing a suit the

officials may confine the prisoner in the hole on other pretenses, i.e.,

under the guise of "administrative custody" for "investigative" or any

number of other reasons. As stated in the foregoing, the U.S. Supreme

Court in Hewitt -vs.- Helms, supra. held that prison officials could

base their decision to confine prisoners in administrative custody

(which is substantially the same as disciplinary custody in every


respect) on mere rumor, subjective evaluations and intuitive judgment

rather than concrete evidence. It is practically impossible for most

prisoners to prove that actions taken against them by prison officials

is in retribution for the exercise of constitutionally protected right.

See: McDonald -vs.- Hall, 610 F.2d 16, 18 (ld Cir. 1979); Johnston -vs.-

Lehman, 609 A.2d 880, 884 (Pa.Comwlth. 1992).

Typically, long term confinement in the hole entails a severe

restriction of physical mobility. One is usually confined in a cell 23

hours per day with one hour of physical exercise in an outside caged

area not much larger than a confinement cell five days per week (one

must spend the other two days per week in the cell 24 hours per day).

Whenever one leaves the cell for any reason one is handcuffed and under

escort of club wielding guards. All meals are served in the cell.

Visitation is usually non-contact, therefore, other than intrusive and

humiliating pat-down and strip searches, one is cut off from all forms

of human contact. Year in and year out one's entire universe is

primarily limited to the four walls of a tiny cell.

Long periods of confinement in the hole, to greater and lesser degrees

of intensity, further results in producing a psychological condition

referred to as "sensory deprivation." Sensory deprivation occurs when

all normal sensory stimulation of an individual is severely reduced or

made monotonous as possible. The effects of sensory deprivation were

first studied scientifically during the 1950s. The phenomena of sensory

deprivation have since been extensively explored. Symptoms of sensory

deprivation vary widely and may include visual and/or audible

hallucinations, difficulty in concentration, inability to distinguish

between reality and fantasy, iitte4 atia. Other finding include

characteristic changes in electrical activity of the brain and the

conclusion that certain personality traits leads to greater tolerance

for sensory deprivation.


Finally, sensory deprivation tends to increase susceptibility to

propaganda. Mental illness, delirium, delusions, and dementia are

common consequences of long term confinement in the hole absent

sufficient sensory stimulation required for normal psychological

function. Self-destructive conduct such as suicide and self-mutilation

are also routine. These are negative considerations of sensory

deprivation. However, there does appear to be a positive side as well.

Reduced sensory stimulation in some individuals with greater tolerance

for sensory deprivation tends to increase and enhance their perceptions in certain areas of mental concentration. Apparently, the reduction of

normal sensory stimuli embellishes some individual's ability to

elaborate upon the sensory stimuli which is available and allows their

mind to greatly magnify every small piece of information available to

the extent where one may become hyper-perceptive in certain areas of

reality. Specifically as this applies to reading, writing and one's

imagination.

Following the Supreme Court decision in Hewitt, supra., which severely

restricted prisoners' rights to pweedwtat due pitoce46 relating to

administrative segregation procedures, etc., state and federal prison

officials now have sufficient legal grounds to confine prisoners in the

hole for the remainder of their imprisonment (regardless of how long a

period that may entail). Consequently, many more prisoners will be

exposed to the phenomena of long term sensory deprivation and caused to

function somewhere between the psychological states of psychosis and

hyper perceptivity.

Another area of unbridled power wielded by prison officials is their

authority to transfer prisoners practically anywhere they choose "for

any reason or no reason at all." It is a well known fact in both state

and federal prison systems that jailhouse lawyers and other activist

prisoners often find themselves systematically transferred from prison to prison, hole to hole, hundreds and even thousands of miles from their nearest relatives, friends and legal represenatives (on the so-called


"merry-go-round" or "diesel therapy").

The transfer tactic is part and parcel of behavior modification methods. Prisoners with weak personalities are rendered incommunicado, isolated, more prone to intimidation and other conven method's when they are effectively severed from all meaningful outside contact and at the complete mercy of prison officials. Under such conditions many prisoners lose their sense of self-awareness, personal identity and become prone to propaganda and brainwashing techniques.

Since 1976 when the U.S. Supreme Court held in Meachum -vs.- Fano, 96 S.Ct. 2543 (1976) that there is no constitutional right which protects convicted prisoners from transfer from one prison to another within the state prison system, (or to another state, Olim -vs.- Wakinekona, 103 S.Ct. 1741 (1983)) and that prison officials were free to transfer prisoners "for any reason or no reason at all," prison officials have repeatedly subjected me to systematic transfers throughout the state prison system and, eventually, to the Federal Bureau of Prisons under 18

U.S.C. §5003 (a federal statutory provision which authorizes federal prison authorities to contract with state officials for custody of state prisoners). See also: Brown -vs.- Smith, 580 F.Supp. 1576 (1984); Shoats -vs.- PA Dept. of Corrections, 591 A.2d 326 (1991); Bickerstaff -vs.- Thornburgh, 755 F.Supp. 977 (D.Kan. 1991); Stevenson -vs.-Thornburgh, 943 F.2d 1214 (10th Cir. 1991).

Since the beginning of my confinement on June 11, 1976 I have been confined at the following institutions: (1) Camden Co. Jail, Camden, NJ, (2) Camden Co. Jail Annex, Blackwood, NJ, (3) Atlantic Co. Prison, Atlantic Co., NJ, (4) Delaware Co. Prison, Thornton, PA, (5) Philadelphia Detention Center, Philadelphia, PA, (6) Holmesburg Co. Prison, Philadelphia, PA, (7) Graterford State Correctional Institution (SCI), Graterford, PA, (8) Dallas SCI, Dallas, PA, (9) Pittsburgh SCI, Pittsburgh, PA, (10) Huntingdon SCI, Huntingdon, PA, (11) Camp Hill SCI,

PORTFOLIO ASSESSMENT NARRATIVE PAGE NO 21

Camp Hill, PA, (12) Allegheny Co. Jail, Pittsburgh, PA, (13) Lewisburg

Federal Penitentiary, Lewisburg, PA, (14) Atlanta Federal Penitentiary,

Atlanta, GA, (15) El Reno Federal Penitentiary, El Reno, OK, (16)

Leavenworth Federal Penitentiary, Leavenworth, KS, (17) Frackville SCI,

Frackville, PA, (18) Mahanoy SCI, Mahanoy, PA, (19) Retreat SCI, Hunlock

Creek, PA. I have also been transferred to many of these institutions on several different occasions.

Transfers are an extremely disruptive process which often results in the

loss of property (especially important legal materials), mail is

frequently delayed and lost in the delivery channels (especially legal

mail), and everyone on one's mailing and visitor's list must be notified

of the change of address and visitors provided with new travel

directions for visitation. One must also become acquainted with a

completely new set of prison regulations, policies, practices and

customs as well as personality characteristics of prisoners and

officials with whom one must coexist and interact with in the

environment.

Long distance transfers minimize social and business contacts with

relatives, friends and legal represenatives. For the most part

prisoners are only permitted to place collect phone calls, which are

more expensive than direct calls. Consequently, long distance phone

contact is often very limited or cut off completely because many

individuals can not afford to accept such calls on a regular basis. The

same applies to visitation due to great distances between visitors and

the institution. Eventually, over long periods of confinement

meaningful family ties, social and business contacts, etc. deteriorate.

Many prisoners become estranged and alienated from their families and

friends. Consequently, the negative impact of the "merry-go-round" and

"diesel therapy" produces an equally adverse affect upon the relatives

and friends of prisoners as it does upon the prisoners.

PORTFOLIO ASSESSMENT NARRATIVE PACE NO. 22

Over years of confinement I have been directly affected by practically

every type of issue within the spectrum of prisoners' rights. On

occasion this has not only involved self-help litigation but more

dramatic forms of protest such as work strikes, political fasts (hunger

strikes), boycotts, prison riots, hostage situations, ixvIteA &Uzi. From my

point of perspective as a prisoner my learning experience in the area of

prisoners' rights law developed as a survival mechanism through force of

necessity.

Prisoners' rights is an esoteric area of law which is primarily illusory

in most areas of actual application. Idealistically, the judicial

application of prisoners' rights entail three areas of consideration:

(1) that lawful confinement conditions in itself necessarily involve a

limitation of the range of rights applicable to the free world, (2) that

a prisoner does not lose all of his/her rights and a residuum of

fundamental rights remain during confinement (with severe limitation),

and (3) prison officials are clothed with broad and nearly omnipotent

powers of discretion over prisoners' conditions of confinement and,

unless fundamental constitutional rights or protected liberty interests

are involved, federal courts will not disturb the determinations of

prison officials. The fact is that even in the protected areas of

fundamental constitutional rights and state created liberty interests

most of these judicial considerations are premised upon one or more catch

22 provisos which, in essence, permits prison officials to slip through

4.4,..tga4 'Loophole's to escape the consequence of their otherwise illegal

conduct.

Current trend of common law tends to shield officials from suit by

affording them numerous effective legal defenses and de facto methods of

using the ends to justify the means (while in contrast prisoners'

standards of proof are extremely difficult burdens to carry). In Whitley

-vs.- Albers, 106 S.Ct. 1078 (1986) the U.S. Supreme Court heightened

its version of the "unnecessary and wanton infliction of pain" standard


applicable to Eighth Amendment claims by holding that a prison

official's shooting of an unarmed prisoner during quelling of a riot,

without prior verbal warning, did not violate the prisoner's right to be

free from cruel and unusual punishment.

Legal relief is rarely granted in most pto 6e cases. The so-called

Weutt corvAiwotion 'Lae (whereby courts are supposedly required to review

oo óe complaints and pleadings on "less stringent standards than the

formal pleadings drafted by lawyers," See: Haines -vs. - Kerner, 92

S.Ct. 594 (1972); Hughes -vs. - Rowe, 101 S.Ct. 173 (1980)), appears to

apply more to the Deputy Attorney Generals who represent the interest of

prison officials than it does to pto ,se prisoners representing their own

interests.

To all intent and purpose prisoners' rights are actually governed more by

political influences than judicial precedent and common law. The latter

appear to be merely an assortment of legal rhetoric and rationalization

mechanisms based on deductive and inductive reasoning which may be

conveniently applied to iwtild moving in whatever political direction is

consistent with the agenda of the political party of the elected

officials. Since the mid 1970s the U.S. Supreme Court has halted and/or

reversed the majority of its progress in the area of prisoners' rights.

Today the U.S. Supreme Court is more conservative than it has been in

any era since the Taft/Hughes Court between 1921-1931. The prevailing

attitude of most courts today is far right wing conservatism. Elected

politicians control who is appointed to serve as Supreme Court justices

and federal judges. Since incarcerated felons, for the most part, have

been disenfranchised of their voting rights they have no control over

the electoral candidates who ultimately determine their fate. By and

large prisoners are politically impotent and as long as this condition

prevails prisoners' rights shall continue to remain largely illusory.

Owens -vs.- Barnes, 711 F.2d 25 (1983), ceM denied, 104 S.Ct. 400; Richardson -vs.- Ramirez, 94 S.Ct. 2655 (1974).


There is no doubt that the basic foundation of prisoners' rights law has

considerable potential to support a fundamentally sound construction of

progressive reform more appropriate for twenty first century

consideration than the present backsliding, eighteenth century plans to

return to chain gang medieval mentality, retraction of educational

funding for prisoners and systematic denial of meaningful access to the

courts, 1:414te4 wad. Traditionally, prisoners have been stripped of

practically every type of responsibility and self-determination as a

consequence of imprisonment. Restoration of voting rights and other

forms of social responsibilities would appear consistent with Modern

Correctional efforts to alleviate rather than perpetuate antisocial

personality characteristics prevalent in a large percentage of

prisoners.

In a very basic sense /Ai/swum' //tights and tehaititation are inextricably

interwoven to the extent where one may not be realistically considered

in the absence of the other. According to Black's Law Dictionary, Id.

the term keitalyaitation means:

"Investing or clothing again with some right, authority, or dignity. Restoring person or 'thing to a former capacity; reinstating; qualifying again. In i.e Cotermem, D.C.Ky., 21 F.Supp. 923, 924, 925. Restoration of individual to his greatest potential, whether physically, mentally, socially, or vocationally. Jones Giannet Cotp., 362 A.2d 139, 143."

Accordingly, as long as prisoners' rights remain illusory for the most

part so, too, will a true sense of rehabilitation remain primarily an

illusion and the recidivist rate will continue to climb. The

fundamental political rights embodied in the First Amendment to the U.S.

Constitution, i.e., freedom of speech, association, and beliefs have

been all but completely eradicated in the prison environment. See for

example, Jones -vs. - North Carolina Prisoners Labor Union, Inc., 97

S.Ct. 2532 (1977); Sostre -vs.- McGinnis, 442 F.2d 178 (2W Cir. 1971);


Goodwin -vs.- Oswald, 462 F.2d 1237 (2W Cir. 1972); Matter of Prisoners

Labor Union -vs.- Helsbv, 354 N.Y.S. 2d 694 (1974); Prisoners' Labor

Union at Marquette -vs.- State Dep't. of Corrections, 232 N.W.2d 699

(1975).

In modern society it is absurd to suggest that a convict can be

"restored to his greatest (social) potential" absent some meaningful

opportunity to exercise the fundamental political rights essential to

realizing one's "greatest potential" as a Aeimaid, 4.&spoormilke citizen.

The very idea of di/slitancivi/sement of fundamental political rights (such as

voting) as a consequence for conviction of a crime is an antithesis to

the very concept of tehalyWitation. Particularly if the primary goal of

itehaiki.tation is "restoration of individual to his greatest (social)

potential" as a citizen. Black's Law Dictionary, Id. describes the term

citizen as:

"One who, under the Constitution and laws of the United States, or of a particular state, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights...'Citizens' are members of a political community who, in their assoc-dated capacity, have established or submitted themselves to the dominion of a government for their individual as well as collective rights. Heivviott City ol& Seattle, 81 Wash. 2d 48, 500 P.2d 101, 109."

According to this definition one of the primary ingredients of the term

citizen is being "a member of the political community." By logical

extension of reasoning one who has been stripped of the right to vote

(and otherwise meaningfully participate in political processes) may no

longer be characterized as a "member of the political community" [no

more so than an attorney who has been disbarred and stripped of the

right to practice law may any longer be characterized as an attorney].

Nonetheless, incarcerated felons are cUizems according to law, i.e.,


members of the political community. While courts have already held that

the right of convicted felons to vote is not fundamental, Owens -vs.-

Barnes, supra. at 27 citing Richardson -vs. - Ramirez, supra., it may be

reasonably argued that the right to vote is a fundamental right inherent

in the status of citizenship itself. However, the question which

materializes at this point is whether an individual who has been

diisenktancia/sed of the fundamental political rights enjoyed by the

"political community" maybe realistically regarded as a member of the

political community? In the same sense may such an individual be

legitimately classified as a citizen, or is the title of oftiun as

applicable to such an individual nothing but an empty Mat title, an

illusory description?

The law should not have it both ways. Either an incarcerated felon

cli/seancivi/sed of the right to vote should not be considered a citizen and,

thus, no longer a member of the political community, or such individual

should be considered a citizen but as such may not be stripped of

fundamental political rights without which the term citizen would be

devoid of any meaning other than an itiuwity tWe.

The current status of the law provides that states are free to

cli/sem1044chiise convicted felons of their right to vote based upon the

language of §2 of the Fourteenth Amendment, Richardson, supra.,

(implying that "the right to vote at any election" may not be "denied or

in any way abridged, except for participation in rebellion, or other

crime...") The Court further stated that the standard of equal

protection scrutiny to be applied when the state makes classifications

relating to disenfranchisement of felons is the traditional itatiAma 44241:6 6twukirtd. See also: Williams -vs.- Taylor, 677 F.2d 510, 514 (5th Cir. 1982); Shepard -vs.- Trevino, 575 F.2d 1110, 1114-15 (5th Cir. 1978).

The bottom line is that as long as the law remains as it is, i.e.,

states are free to have it both ways and strip convicted felons of the

fundamental political rights which are necessarily inherent in the

PORTFOLIO ASSESSMENT NARRATIVE PACE NO. 27

status of dtizen/A40 itself, yet, continue to classify such individuals as citizens (members of the political community), a on Nultuitivi material

fallacy of law shall exist [it simply does not follow logically].

The fact is that there is no such thing as varying degrees of c.iitizenAhip; either one Vs or vs not a oitiz.en, i.e., one either i4 or i4 not "a member of

the political community." It is illogical to classify one who has been

stripped of all fundamental political rights as "a member of the

political community" or, otherwise, classify such an individual as a

citizen. There appear to be no tatiotua 142/5i.5 for classifying persons who

have been stripped of all political rights inherent in the very concept

of aitiamysizip itself as citizens. To all intent and purpose, an individual

who has been diAentitancivi4ed of all political powers within the community,

and who only maintains a residuum of civil rights, falls more precisely

within the legal definition of avititotnuntaws (civilly dead).

Black's Law Dictionary, Id. describes the term civil death as:

"The state of a person who, though possessing natural life, has lost all civil rights and as to them is considered civilly dead. HiAoko Kato*Ua Hama Lawa, Cat.App., 258 P.2d 1039, 1042. In some states, persons convicted of serious crimes are declared to be civilly dead which means that certain civil rights and privileges of the convicted offender including the right to vote and contract and to sue and be sued are for-feited."

Most incarcerated felons have no right to vote or contluwA and, to all

judicial and legislative intent and purpose, it appear that their right

to sue is rapidly becoming an empty egg6iumtt as well. Moving from this

premise it is evident that in the absence of fundamental civil and

political rights prisoners are not much better off today than they were

125 years ago when the law universally considered incarcerated felons

oi,uitty dead and tempo any staves of the ,state. In 1871 the court in Ruffin -vs. - Commonwealth, 62 VA 790, 795-96 (1871) reasoned that:


"A convicted felon, whom the law in its humanity punishes by confinement in the penitentiary instead of with death, is subject while undergoing that punishment, to all the laws the Legislator in its wisdom may enact for the government of that instit-ution and the control of its inmates. For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those the law in its humanity accords to him. He is for the time being the slave of the State. He is oivititeit moM'au6; and his estate, if he has any, is administered like that of a dead man."

Striping away all of the idealized imagery and illusory descriptions

applied to the present legal concept of a convicted felon, there does

not appear to be any difference between the autuat 4egat MattO of today's

incarcerated felons and that of those referred to by the Ruffin, supra.

court, except the Superintendent is no longer vested by law with

authority "to punish (prisoners) by stripes, or the iron mask, or the

gag...if he commits an offence not amounting to a felony." The overall

status of oivititet movtato and that of a terapoitaity 'stove o6 the State appears to

remain in tact. If Fyodor Dostoyevski's statement "[t]he level of a

civilization can be judged by entering its prisons" is true, it is

evident that there is very little actual difference between "Ow towet of

oluitizaaon" today and that of civilization 125 years ago with regard to

the legal capacity of incarcerated felons.

In the clearest sense of perspective, then, the term 4e-habilitation implies

restoring a convicted felon to his/her "greatest (social) potential,"

which is that of a tiv3powsiAke citizen. This is patently impossible under

the traditional penological methods of punishment, retribution, and

disenfranchisement of the basic rights, privileges and immunities

integral to the composition of a law abiding, responsible citizen. Such

methods have been tried, tested, and proven to dehumanize and perpetuate

the very type of arptiweiat attitudes and behavior which are completely inconsistent with any conception of itehalyititation.


It would, therefore, appear that the primary focal point and goal of

modern prisoners' rights activist should be the restoration of

fundamental rights, privileges and immunities integral in the

composition of the very concept of the term teisporysitte c.Wzen, including,

but not limited to the right to vote. The concept of civititeA. =vamps is

diametrically opposed to the concept of niminat tehaiiitation ostensibly

because tegatty dead peoms may not be realistically considered Avsporysidte or

oitizero [both of which terms are essential components of the term itehabititatim as applied to incinzeAcuted Wows]. Until the political rights

of prisoners have developed to the extent where they may memm 7Agitaily participate as "members of the political community" they will not be

capable, for the most part, of reaching their "greatest (social)

potential" as teJsporoale aitiwo and the present concept of citimina

Aeltaititation shall continue to remain largely a myth.

Prepared by:

E,6'401/,1?,

Hiram R. Johnston, Jr. Student No. 139-40-6069 Completed: November 28, 1996

SELECTED BIBLIOGRAPHY

PAGE NO. 30

PRISONERS SELF-HELP LITIGATION MANUAL, Revised Second Edition, by Manville & Boston, (Oceana Publications, Inc. 1986)

PRISONERS AND THE LAW, Edited by Ira P. Robbins, (Clark Boardman Company, 1985)

THE RIGHTS OF PRISONERS, Fourth Edition, by Rudovsky, Bronstein, Koren, & Cade (So. ILL. University Press, 1988)

PRIMER FOR JAIL LITIGATORS, 14 Ed., (Nat. Prison Project of the ACLU Foundation, 1984)

A JAILHOUSE LAWYER MANUAL, Columbia Human Rights Law Review, Columbia University School of Law, 435 W. 1160 Street, New York, NY 10014

LOGIC FOR LAWYERS, A Guide to Clear Legal Thinking, by Aldisert (Clark Boardman Co., Ltd. 1989)

CASES & MATERIALS ON THE LAW OF SENTENCING, CORRECTIONS AND PRISONERS' RIGHTS, 40 Ed., by Krantz & Brannam, (West Publishing Co. 1991)

THE PA PRISON SOCIETY, CORRECTIONAL FORUM, 200 Spring Garden Street, Philadelphia, PA 19130-3805

GRATERFRIENDS, (Prison Newsletter), SCI-Graterford, P.O. Box 426, Graterford, PA 19426

GORILLA LAW, PRISONERS' SURVIVAL MANUAL, INSIDE/OUT PRESS, 366 N. Van Ness, Fresno, CA 93701

FLORIDA CLEARINGHOUSE ON CRIMINAL JUSTICE NEWSLETTER, 306 E. Park Avenue, #102, Tallahassee, FL 32301

C.P.R. NEWSLETTER, COALITION FOR PRISONERS RIGHTS, P.O. BOX 1911, Santa Fe, NM 87501

THE PRISONERS' UNION JOURNAL, PRISONERS' UNION, 1909 60 Street, Sacramento, CA 95814

SOUTHERN COALITION REPORT ON JAILS & PRISONS, P.O. Box 120044, Nashville, TN 37212

P.L.A.P. PRACTICE MANUALS, PRISON LEGAL ASSISTANCE PROJECT, Austin Hall, Harvard Law School, Cambridge, MA 02138

PRISON DECISIONS, University of Toledo, College of Law, Toledo, OH 43606

BEHAVIOR MODIFICATION -- LAW & LEGISLATION -- UNITED STATES, by Martin

SELECTED BIBLIOGRAPHY [Continued]

PAGE NO. 31

Reed (Research Press, 1975)

BEHAVIOR MODIFICATION -- CORRECTIONAL REHABILITATION & MANAGEMENT; A PSYCHOLOGICAL PROGRAM, by Teodoro Ayllon (A Wiley Interscience Publication, 1979)

TECHNIQUES OF PERSUASION, From Propaganda To Brainwashing, by J.A.C. Brown (Penguin Press, 1963)

THE PEOPLE SHAPERS, by Vance Packard, (Bantam Books, 1977)

THE HIDDEN PERSUADERS, by Vance Packard, (Pocket Books, 1957)

A

TABLE OF CASES PAGE NO. 32

CASES PAGE ( s )

Beet Woqish, 99 S.Gt. 1861 (1979) 17

Bic-keit/staid, Thoutunah, 755 F.Supp. 977 (D.Kan. 1991) 20

BOWL& -(76.- Smith, 97 S.Gt. 1491 (1977) 4

731aden -vs.- Esteite, 428 F.Supp. 595 (S.D.Tex. 1977) 13

Ekown Smith, 580 F.Supp. 1576 (1984) 20

Buie Hudkirvs, 584 F.2d 223 (7th CIA. 1978) 5

Cotpu/s Estette, 551 F.2d 68 (5th U./L. 1977) 4

Foitetta Cati4olnia, 422 U.S. 806 (1975) 6,7

Fa/uneA, /34ennan, 114 S.Ct. 1970 (1994) 11

Freeze Gliffilitit, 849 F.2d 172 (5th Gi/t. 1988) 13

Gideon -06.- (Alaimo/tight, 83 S.Ct. 792 (1963) 8

Goodwin -v6.- Oswald, 462 F.2d 1237 (2[11 Gi/t. 1972) 25

Haines -vs.- KeitneA, 92 S.Ct. 594 (1972) 23

Heitniott -vs.- City of, Seattle, 81 (A)ash.2d 48, 500 P.2d 101 25

Hewitt -()5.- Heim, 103 S.Ct. 864 (1983) 10,17,19

Hiitoko Kawakita Naga/ski Lorenz, Cat.App. 258 P.2d 1039 27

Hud/son McMatian, 112 S.Ct. 995 (1992) 11

Hughes -vs.- Rowe, 101 S.Ct. 173 (1980) 23

In Ite Co4man, D.C.Ky. 21 F.Supp. 923 24

James -vs.- Quinlan, 886 F.2d 37 (3d Cit. 1989) 13

Johnson Aveity, 89 S.Ct. 747 (1969) 2,3,4

Johnston -vs.- Lehman, 609 A.2d 880 (Pa.Contwith. 1992) 18

Jones -vs.- Gt.innet Cotp., 362 A.2d 139 24

Jones -vs.- Nava Carotin Pa/sone/vs Labot Union, Inc., 97 S.Ct. 2532 (1977) 24

Matte' Pki.soneivs Labot Union -cps.- Het*, 354 N.V.S. 2d 694 (1974) 25

TABLE OF CASES PAGE NO. 33

CASES [Continued] PAGE(s)

McCtay -0.- Bennett, 467 F.Supp.187 (1978) 5,6

McDonald -0.- Halt, 610 F.2d 16 (1g Gilt. 1979) 18

Meachum -no.- Fano, 96 S.Ct. 2543 (1976) 20

Mertz4i-el-el -0.- Boitg, 881 F.2d 696 (9th Cit. 1989) 7

Nicht -vs.- Schmidt, 351 F.Supp. 385 (10.D.Wiisc. 1972) 6

O4Am -vs.- Wakinekona, 103 S.Ct. 1741 (1983) 20

Owens -vs.- &ones, 711 F.2d 25 (3rd Gilt. 1983) 23,26

1D/1i/sone/vs' Labot Union at Marquette -vs.- State Dep't. oi, Col/text/lows,

232 N.W. 2d 699 (1975) 25

Rhodes -vas.- Chapman, 101 S.Ct. 2392 (1981) 9

Richaiedson -vs.- Raraiitez, 94 S.Ct. 2655 (1974) 23,26 Ru.4,4,in -(16.- Commonwealth, 62 VA 790 (1871) 27

Shepard -vs.- Pcevino, 575 F.2d 1110 (5th Gilt. 1978) 26

Shoats -vs.- PA Dept. ob Covlectiom, 591 A.2d 326 (1991) 20 Smith -vs - Bennett, 81 S. Ct. 895 (1961) 12

Sostice -v6.- McGinnis, 442 F.2d 178 (god Cit. 1971) 24

Stevenson -vs.- Thoinkuigh, 943 F.2d 1214 (10th Cit. 1991) 20

.Stackland -06.- Washington, 104 S.Ct. 2052 (1984) 10

Tip teiui -vs.- Owens, 719 F.Supp. 1256 (LO.D.PA 1989) 4 Puy -vs.- Da e/5, 78 S.Ct. 590 (1958) 14 U.S. -vs.- Chapman, 954 F.2d 1352 (7th Cit. 1991) 7

U.S. ex ARA.. Poitaptoi,essionai Law GiirtiC -VS.- Kane, 656 F.Supp. 1099 (E.D. PA (1987) 5

U.S. -vs.- Ptiltne.tt, 910 F.2d 51 (2r CiA. 1990) 7

U.S. -vs.- Smith, 907 F.2d 42 (6th Cie. 1990) 7 U.S. -06.- Watson, 1 F.3d 733 (8th Cie.. 1993) 7

Vaughn -0.5.- Ttotteit, 516 F.Supp. 886 (M.D.Tenn. 1980) 5

Wade -vs.- Kane, 448 F.Supp. 678 (E.D.PA 1978) 5

Weave. -0.- Toombs, 948 F.2d 1004 (62 Gilt. 1991) 13 Whitty -vs.- Atte/vs, 106 S.Ct. 1078 (1986) 22 WiUiam -0.- Tatitot, 677 F.2d 510 (5th CIA. 1982) 26

Wikson -VS.- SeiiteA, 111 S.Ct. 2321 (1991) 11 Young -vs.- Quintan, 960 F.2d 351 (3d Ciit. 1992) 11

AIP

Catch 22 ploviAcfrs, 22 Chain gang, 14,24 Checks & Balancers, 6,14 GivititeA Mottuuts, 27,28 Civitty dead, 27

V

Hattacinations, 18 Havtaisisment, 5 Heightened proof lequimments, 11 HypeA pe ,weptivity, 19

H

De ,acto puni/shmervt, 17 De facto method's, 22 Dehumanize, 28 Detiie/tate indif4e/tence, 11 Dieset thetapy, 20,21 Di/salpiinalud custody, (see: "The hate") Di4eAetionaty actions, 16,17 Disenfi►ancivi/se, 23,25,26,27 Double ceiling, 9

Idealized imagery, 28 Inca/we/toted vete/tams' den4it4, 13 Ine‘kotive assistance counsel, 10 in to' M4 paupeAiis, 13 Inmate pa/tategat, 4 I,Saiated Housing Unit, (See: "The hate")

I

INDEX PAGE NO. 34

A

E Access to the cou/a/s, 4-8 AdminiistAative custody, 10,16-19 Anti/social attitudes, 24,28 Antite/1404/Sm & Effective Death Penalty Act of, 1996, 14

13

Eighth Amendment, 11 ,22,23 Empty egoheti, 9,26,27 Equal protection of, -taw, 12

E3ehaviot Adjustment Unit, 16 Behavior, modif,ication, 16-21 Behavioltat ploitem, 16 Bit of, casts, 13 E3ipaitti/san potiticat expediency, 8 131thuuashing, 20

Fiipst Amendment, 14,24

G

GI Biti, 13 GeneiwA population, 10 "Get—tough-on-dime," 8,13

C

INDEX con,,i, PAGE NO. 35

J

Jai thowse tawyeA, 2-8 Judiciany Act oj, 1789, 6

L

Law cleitiz, 4 Legality dead, 29 Legal loopholes, 17,22 Legislatovs, 14 Liteitai conistituoti.o. n rule, 23 Litigious plisoneivs, 16 Long term confinement, 18

M

Mandatory costs, 12 Maximum Sec-Laity Unit, 16 "Mevuy-go-round," 20,21 ModeAn Covtectional Goats, 15 ModeAn Comectiorull Standaluk, 14 Modem peaticat agenda, 13 Mutual legal a, ,s,ststance, 2-8

PitoceduAdi due process, 10,19 Plkson Litigation Refolm Act of 1995, 11 PlisoneAo' 'tights, 24 Propaganda, 19,20 Pro 'se litigant, 2-8 Psycho6i4, 19

R

Rational 1a/SiS standard, 26 Rehatititation, 24-29 Responsible citizen, 28,29 Restticted Housing Unit, 16 Retaliation, 5,6,17,18 Right wing conseitoati4m, 23

S

SecuAity itiisk, 16 Self-help litigation, 1-8,11 Segregated Housing Unit, 16 Sensory deprivation, 18,19 Sixth. Amendment, 8 State mind, 11 Subjective element, 11

T Tempo/id/1y slave of, the Mate, 27,28 -The hole," 15 Pia/2*A tactic, 20

•

Objective element, 11

Voting /tights, 23,29 Omni i.u6 &vim' e WA, 13 Oveitcitowding, 9,12

Pelt Grant, 13 %Utica community, 25-29 Political influences, 23

WoAehousing, 12 Writ wAteic, 3,4

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