MCLS NOTESMarch 2002Published by Massachusetts Correctional Legal Services, Inc., Eight Winter Street, Boston, MA 02108. Phone (617) 482-2773; (800) 882-1413; *9004# for DOC Prisoners
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Published by
Massachusetts
Correctional Legal Services, Inc.
8 Winter Street, 11th Floor, Boston MA
02108-4705
Phones: (617) 482-2773, (800) 882-1413; (617) 482-4124
(collect)
Victory on Legal Mail Confidentiality
On October 24, 2001, following the September 11 attack on the United States and the mailed anthrax attacks, the Department of Correction suspended those portions of its mail regulations that provide confidentiality to incoming and outgoing legal mail. Because loss of confidentiality of attorney-client mail would cripple the ability of most prisoners to communicate with counsel in both civil and criminal cases, MCLS sued to enjoin suspension or repeal of those portions of the DOC’s mail regulations that protect such confidentiality. This case, Cashman, et al., v. Maloney, et al., SUCV01-05238, was filed on November 14, 2001 by MCLS Litigation Director James Pingeon.
A motion for a preliminary injunction was filed on November 20 supported by affidavits from five prisoners whose legal mail had been opened and read by prison officials, by William Leahy, Chief Counsel of the Committee For Public Counsel Services, by Tracy Miner, President of the Massachusetts Association of Criminal Defense Lawyers, and by attorneys Patricia Garin, John Fitzpatrick, and Charles Rankin. Four state representatives, Anne Paulsen, Ruth Balser, Benjamin Swan and Patricia Jehlen, also submitted affidavits. The attorney affidavits detailed how destruction of attorney-client mail confidentiality would disrupt civil and criminal proceedings and, in the case of CPCS, greatly increase the cost to the Commonwealth of defending criminal cases because matters previously handled by letter would now require in-person attorney visits. Legally, plaintiffs argued that incoming legal mail is protected by the Constitution under long-established Supreme Court precedent and that outgoing legal mail is protected both by those constitutional principles and by G.L. c. 127, sec. 87. In response, the D.O.C. pointed to the several deaths and tremendous disruption caused by the fall anthrax attacks, and to several hoax incidents in which threatening letters containing what turned out to be harmless powder were mailed to prison officials and others from inside Massachusetts prisons. Following briefing and argument the Suffolk Superior Court (Cratsley, J.) denied plaintiff’s application for a preliminary injunction on December 17th. Appeal was immediately taken to the single justice session of the Appeals Court.
On January 31, 2002, the Appeals Court (Cohen, J.) sent the case back to the Suffolk Superior Court for briefing, argument, and decision on issues pertaining to the D.O.C.’s authority to suspend regulations by “emergency regulation,” the definition of “emergency” for purposes of the Administrative Procedure Act, and other matters of administrative law that had not been thoroughly considered in the first round of litigation. In subsequent negotiations with attorney Pingeon, the DOC agreed to return to its prior legal mail procedures, with the sole modification that prisoners wishing to send outgoing legal mail could be required to show I.D. prior to depositing the sealed letter for mailing, so that the C.O. can verify that the return address on the envelope matches the I.D. of the prisoner mailing the letter.
At this time all legal mail should be processed according to the procedures set forth in 103 CMR 481.12. MCLS is aware of some remaining problems with certain elements of legal mail, especially summonses and complaints, at some D.O.C. prisons. Those problems, however, pre-date the terrorist attacks of last fall. MCLS is attempting to resolve those remaining issues with the D.O.C. central administration informally.
Racially Biased Gang Classification
Haverty, et al. v. Maloney, et al., SUCV95-3634, is a class action that challenges the confinement of prisoners at MCI-Cedar Junction in "Security Threat Group" (STG) and other restrictive East Wing blocks. In October, 1998, Superior Court Judge Charles M. Grabau held that confinement in the East Wing is "atypical and significant," entitling prisoners to due process protections set forth in the Departmental Segregations Unit regulations. These rules, long ignored by the DOC, were the relief ordered by the late Chief Justice Liacos in the Hoffer case.
Judge Grabau also held that Latino prisoners made a clear enough showing of illegal racial discrimination to warrant a trial on that issue. That trial was held between April 30 and June 21, 2001 before Judge Patrick King. The DOC’s appeal of the due process decision was argued in the Supreme Judicial Court in December. Judge King has not yet to issued his decision. MCLS expects decisions in both parts of the case in the next few months. The MCLS legal team on Haverty includes attorneys Phil Kassel and Peter Berkowitz and paralegal Al Troisi.
Review of Prisoners Labeled as Sex Offenders
Soffen, et al. v. Maloney, et al., SUCV99-1228, was filed as a class action by prisoners identified as sex offenders by the DOC for absurd reasons like public urination, "mooning" as a prank, and consensual sex with like aged children (the 17-year old guy with a 16-year old girlfriend situation). DOC policy has been to send everyone with such convictions, even when they date from many years ago and are not the conviction for which the individual is currently serving time, to the Sex Offender Treatment Program. The plaintiffs seek due process protection (a hearing) to determine whether they are “really” sex offenders who ought to complete that program.
Attempts to settle the case without extensive litigation were partially successful. Revised DOC policy now requires a clinical assessment to prisoners who have committed certain relatively minor "sex crimes." Of 89 prisoners who received this assessment by the end of August 2001, 57 were cleared. However, MCLS believes that current DOC policy still labels too many people as "needing" the program.
The plaintiffs in Soffen are completing discovery and expect that the Superior Court will hear cross-motions for summary judgment this spring. In the meantime, prisoners who think they are improperly labeled as sex offenders and who have not received a clinical assessment should write Peter Kane, Phillip Kassel, or Peter Costanza, the MCLS legal team handling the Soffen case. Tell us the crime which the DOC cites in justification for your labeling, the efforts you have made to lift the label, results of that effort and the consequences of the labeling for you (such as, classification problems, denial of parole, denial of programming and work opportunities, harassment, or worse at the hands of correctional officers or other prisoners). This type of information will be very helpful for preparing plaintiffs’ summary judgment application if the case does not settle.
Special Projects
MCLS Rapid Response to Brutality Project
On November 13, 2001, MCLS’s Rapid Response to Brutality Project began accepting intakes from MCI–Cedar Junction. The goal of the Project, which was suggested by prisoners, is to deter guard-on-prisoner violence. Due to staffing limitations, the project is only being conducted at MCI – Cedar Junction at this time.
What is the Rapid Response to Brutality Project?
This project depends partly upon prisoners, their friends, and family contacting us promptly whenever a prisoner is assaulted by correctional staff. When MCLS receives a call during telephone intake hours (Mondays 1pm – 4pm; in case of a Monday holiday, Tuesdays 1pm – 4pm) or a letter about a prisoner who sustained physical injury (e.g., bruises, cuts, stitches, or broken bones) as the result of being assaulted by correctional staff, we will conduct a legal visit with that prisoner, hopefully within 48 hours of learning of the assault. We will bring a camera to photograph any injuries the prisoner may have suffered. We will also conduct follow-up advocacy with medical staff as needed to help ensure that any injuries are being treated.
How can you contact MCLS to report an assault?
Call us on Mondays from 1pm – 4pm on (617) 482-4124. If there is a Monday holiday, call on Tuesday, 1pm – 4pm. That number is automatically on every prisoner’s PIN list. Due to staffing limitations, our telephone intake hours are limited, and the lines are often busy. If you cannot call us during those hours, please write as soon as possible to inform us of the incident. If you cannot get in touch with us, perhaps a friend or family member can. In order to make a visit, we need to receive a request for legal assistance including the name of the Walpole prisoner(s) who was assaulted, the prisoner’s location if he has been transferred, the date of the assault, and a description of any injuries suffered. The more information you provide, the better.
What are the benefits of the Rapid Response to Brutality Project?
This project is being conducted as a result of MCLS’s concern about the problem of guard-on-prisoner assaults. It is in response to requests from prisoners for a “rapid response” to brutality. Because MCLS has limited resources (a total of 6 full-time and 1 part-time staff attorneys for 21,000 state and county prisoners), we will not be able to file lawsuits for each person who is assaulted, but we will file or refer to private counsel as many meritorious claims as we can. Even if we do not file a lawsuit on a particular prisoner’s behalf, we believe the project will help prisoners in several ways:
It will provide assaulted prisoners with a timely record of their injuries. This record could be used if an assaulted prisoner gets a lawyer on his own or decides to file a lawsuit pro se.
It will provide a means for prisoners with untreated or inadequately treated injuries to have someone push for proper treatment.
It will discourage correctional staff from assaulting prisoners in the future by showing that their behavior is being monitored by outside lawyers who are ready to take action. A similar approach was tried in another state, and they now have less of a problem with brutality than they did before.
Who is staffing the Project?
This project is staffed by Rebecca M. Young, Esq., who is working at MCLS on this Project for two years through a Soros Justice Postgraduate Fellowship from the Open Society Institute. Rebecca will recruit law students to assist with the Project.
Framingham Project for Incarcerated Women
The Framingham Project for Incarcerated Women, a project of the Women’s Bar Foundation of Massachusetts, will provide free legal assistance to women prisoners seeking help with l) clearing criminal warrants; 2) health care issues; and 3) child custody-related matters.
To obtain an attorney, a prisoner at MCI-Framingham must first contact MCLS. MCLS will then forward appropriate cases to the Women’s Bar Foundation for referral to a volunteer attorney.
For the Framingham Project, the Women’s Bar Foundation recruits attorneys from private firms throughout the Greater Boston area. Once a case is referred, the attorney will contact the prisoner directly and determine how to proceed.
Hepatitis C and HIV Project
MCLS maintains a special focus on assisting prisoners who are infected with either or both of these viruses. In recent years health care for people with HIV has improved considerably because drug combinations have been found that are effective against the virus in most people. Treatment for Hepatitis C is at an earlier stage. That virus was discovered later than HIV and the extent of the epidemic has only recently become clear. There are more than four million people in the United States who are infected with Hepatitis C. More than 100,000 of them are in Massachusetts. The incubation time for this illness is very long – 15 to 25 years. Most of the people infected with it are not obviously sick yet and do not know that they are infected. A medical screening study done last year revealed that 30% of men coming into MCI-Concord and 40% of women entering MCI-Framingham are infected with Hepatitis C! Many prisoners have questions about Hepatitis C and are concerned that they are not being treated for it. Treatment for Hepatitis C is a complex problem because people can be treated only when they reach a certain stage of the disease, the treatment (interferon) has many bad side effects, and it also does not work in at least half the people who get the treatment. Also, not everyone infected with Hepatitis C actually gets sick from it. Please feel free to contact MCLS with your Hepatitis C and HIV questions. The MCLS staff person in charge of HIV and Hepatitis C advocacy is paralegal Dianne McLaughlin.
Announcements
A Message From The Director
The MCLS Board of Directors established litigation priorities for the office in March of 2001. Those priorities ─ health ( including mental health) care, guard brutality, extreme conditions of confinement and classification/segregation ─ were listed in the August 2001 MCLS Notes. A brief history of MCLS and why priorities were established will hopefully answer some frequently asked questions.
As you know, during the 1990’s being “tough on crime” became very popular. This attitude translated into “the joy of breaking rocks” and other idiotic political catch phrases that signaled abandonment of rehabilitation goals. At the same time, various “outside” prison groups that helped prisoners, including MCLS, were stopped from going into prisons. Life in prison became more and more isolated.
In response to this isolation and the constant contraction of dignity and humanity in prison life, many prisoners turned to MCLS. MCLS, a six-attorney office, began to drown in the sea of requests for help. When MCLS decided it could represent a prisoner or a group of prisoners in one case, it meant that the office couldn’t take a dozen other cases. Doing medical advocacy for one person meant six others had to wait or advocate for themselves.
The MCLS staff and board have taken several steps in the past two years to address these issues. Four new prison board members were added, two of whom are women. Legislative contact has been increased and press contact is now encouraged. Written responses to prisoner requests, including pro se materials, were updated. The office commenced its Prison Brutality Project, which provides individual representation to prisoners assaulted by guards at Walpole and Souza-Baranowski. MCLS is forming partnerships with outside legal and public health organizations like Health Law Advocates and the Massachusetts Public Health Association. MCLS advocates have begun meeting with prisoners to learn about problems at individual institutions. And, the priorities set by the Board of Directors cover 80% of MCLS’s litigation, so that the office can still devote 20% of litigation time to things which are outside the four priority areas but are important to our clients (DNA fees, mail regulations, etc).
The result? Instead of not knowing whether MCLS will take a case or not, the office is being up front about what cases we are taking. If you have a health issue of a life threatening nature or you have been beaten down at Walpole or SBCC or are sitting in a gang block, MCLS is committed to trying to help you whenever possible. While it is true that MCLS will not represent individual prisoners in many areas like property, regular classification and disciplinary actions, and that many prisoners will only receive a form letter providing information or legal advice, MCLS’s priorities focus on the most extreme conditions of prison existence. We hope that knowing what MCLS does and does not do is a whole lot better than waiting and guessing about which cases the office will take.
-- Leslie Walker
Drug Test Procedure Investigation
MCLS is investigating the extent to which correctional staff is following the regulations governing the procedures that they are supposed to follow when a prisoner is unable to produce a urine sample for a drug test. It has become clear that the regulation is not being followed by some staff in some prisons. DOC central administration says that it is committed to seeing to it that this regulation is followed. If you have ever not been able to produce urine and have received a D-ticket as a result, please write to MCLS about it. If either you or the DOC raised the question of shy bladder syndrome or the possibility of using a patch as an alternative to producing a urine sample please tell us so in your letter. Please send your letters to MCLS attorney Gary Rothberger.
Resources for Fathers in Prison
The Family and Corrections Network has developed a set of short pamphlets for dads who are in prison. They don’t have funds to mail these materials out for free, but you can get the whole set of ten from them for six dollars. Or, if you have a friend on the outside with a computer, he or she can download and print these materials for free and then mail them to you. The web site for the Family and Corrections Network (FCN) is at http://www.fcnetwork.org. The pamphlets are about coping with separation from your children, how to prepare a child for a prison visit, paternity and support issues, how to explain to a child about your imprisonment, and other issues of legal and emotional importance to men in prison and their kids. The mailing address for the Incarcerated Fathers Library at FCN is 32 Oak Grove Road, Palmyra, VA 22963.
MCLS Web Site
MCLS has a web site with information about our work and links to other prison-related and legal services web sites at http://www.mcls.net. Although this web site is not available to prisoners, it is accessible to friends and family and can serve as a link to MCLS as well as to other organizations concerned about prisons and prisoners in Massachusetts and elsewhere in the United States.
Prison Legal News
Prison Legal News is a monthly publication edited by Washington State prisoners that reports on prison-related court rulings nationwide. Subscriptions are $18/year for prisoners ($9.00 for 6 months); $25/year for non-prisoners; and $60/year for attorneys. Write to Prison Legal News, 2400 NW 80th St. #148, Seattle, WA 98117.
MCLS Attorney Telephone Assistance
Prisoners who wish to speak to an MCLS attorney, please call collect on (617) 482-4124, Mondays from 1 p.m. to 4 p.m. Families and friends of inmates may call our Massachusetts toll free number, which is 1-800-882-1413. Prisoners who cannot reach us by phone are encouraged should write. Over 80% of our intake is handled by mail.
Apuntes de MCLS en español
MCLS Notes is available in Spanish. MCLS has also translated many of its information packets into Spanish. Spanish versions of our information materials will be provided, where available, to people who request them over the phone or in writing. Please share this information with Spanish-speaking prisoners. Aceptamos cartas escritas en español.
Coping Tips
Medical Care Grievances
Many prisoners have had the experience of trying to grieve lack of medical care, only to have the grievance summarily denied. The DOC’s grievance regulations specify that grievances about the quality or correctness of medical care cannot be processed by the regular grievance procedure. This is because CMS, the medical service company, has its own separate grievance process for such complaints which you must use. MCLS has found that most prisoners have never heard of this CMS grievance procedure, much less seen it. Here it is:
TITLE: [CMS] CLINICAL COMPLAINT MECHANISM
Subject: Grievance Mechanism (Important)
Purpose: To ensure that inmate concerns and complaints regarding health services are addressed by the Health Services Administrator (HSA) in a timely manner.
Policy:
1. Inmates may communicate complaints or concerns related to health service verbally or in writing.
2. Face to face encounters are recommended and encouraged.
3. CMS healthcare staff will treat all inmates in a professional, courteous manner, ensuring fair, and consistent treatment for each individual.
4. During inmate orientation, the inmate will be advised that complaints regarding healthcare can be resolved informally by communicating with the HSA, or by placing the complaint in writing.
5. Clinical complaints will be reported in the site CQI meeting to identify trends and opportunities to improve health services through corrective action.
6. All clinical complaints will be managed as above. The Department of Correction policy 103 DOC 491 "Inmate Grievances" is not intended to process clinical decisions or complaints and will not be used as such.
Procedure:
1. Clinical complaints may be communicated either verbally or in writing to the HSA [Health Services Administrator] or designee.
2. Face to face encounters are recommended and encouraged.
3. The clinical complaint may be discussed and resolved informally. (i.e., Access to Management/ Happy Hour).
4. Written complaints will be reviewed and addressed by the HSA or designee within five (5) business days of receipt.
5. Written complaints may be resolved verbally (face to face meeting) or in writing.
6. Inmate clinical complaints must be logged in the CMS Inmate Grievance Log and the original complaint (if written) filed by the HSA in a file, not in the medical chart.
7. Complaints that cannot be resolved at the site level must be brought to the attention of the Vice President/Program Director or Regional Medical Director.
Please note that grievances about access to medical care (that is, if correctional staff members don’t let you see the medical people) go through the regular grievance process.
Disciplinary Hearings
MCLS does not handle disciplinary hearings, although MCLS staff sometimes provides advice about how to approach a particular hearing. There are more than twenty thousand d-tickets written each year. For direct assistance with d-hearings, contact:
1) PLAP, Austin Hall, Harvard Law School, Cambridge, MA 02138, collect calls: (617) 495-3127;
2) Prisoner Assistance Project (Sept. to Feb. only), Northeastern University School of Law, 716 Columbus Ave., Suite 212, Roxbury, MA 02120, collect calls: (617) 373-3660 (Sept. to Feb. ONLY).
Send a copy of your disciplinary report. Ask for a continuance until you find out whether representation is available. Where direct representation is not available, the law schools can provide self-help materials. The law school programs concentrate on the most serious d-hearings, especially DDU hearings.
Be aware of the time limitations in the disciplinary hearing process set forth in 103 CMR 430. Ask for the reporting officer and other witnesses, as well as physical and documentary evidence, within 24 hours of getting the request for witness / representation form (103 CMR 430.11). Provide a brief summary of what each witness will say (or the significance of other evidence that is requested, such as videotapes) on the request for witness / representation form. You may appeal a guilty finding and sanction to the superintendent within 5 days of receiving the hearing officer's decision (103 CMR 430.18). You must first appeal the finding and sanction to the superintendent in order to be able to challenge the disciplinary conviction in court. Court challenges to disciplinary convictions must be filed within sixty days of the superintendent's denial of your administrative appeal, or your complaint will probably be dismissed.