|
MCLS
Notes |
|
|
|
8
Winter Street, 11th Floor, |
What
is MCLS?
Massachusetts Correctional Legal Services (MCLS) provides legal assistance to prisoners, parolees, probationers and family members for problems arising out of incarceration. We are not part of the Department of Correction. We assist prisoners through direct representation in individual and class action civil lawsuits, through administrative and legislative advocacy, and by providing legal advice and information. We review problems involving conditions of confinement, inadequate medical and mental health care, unlawful use of force, discrimination, free speech, religious exercise, access to the courts, sentence computation, visitation, and many other issues facing prisoners and their families. This quarterly newsletter highlights recent developments in some of our cases, and in some areas that may be of interest to our readers.
Unfortunately, we are a small
office and cannot take on many of the cases that are presented to us. We recently were forced to
close intake for
several weeks due to an unusually large number of letters received. We apologize for the
problems this
caused. We will
continue to review our
intake procedure and determine where to focus our resources in order to
best
serve our clients. We
are now sending
out forms in response to prisoners' letters telling the writer which
staff member
is assigned to review and respond to the letter.
The forms also have other information that
can be checked off to speed up our replies.
This may seem less personal than a letter, but we hope it
will mean you
receive a quicker response.
Announcements
Join
Us For
AIDS Walk Boston 2000
MCLS staffers, board members and
friends will form a Prison Justice Walk Team for the AIDS Walk Boston,
which
will be held this year on Sunday, June 4th.
Friends of MCLS not presently constrained from taking a
pleasant stroll
along the Charles on a June afternoon are urged to contact Peter
Costanza at
MCLS if you would like to participate in our Walk Team (#6641). If you can't walk with us,
please consider
sponsoring a Walk Team member with whatever you can afford. MCLS receives AIDS Walk
funds to
Conference
on
Women in Prison
A free conference for the
community entitled "A Call For Healing: Women in Prison, Families in
Crisis" will be held on Saturday, May 13, 2000 at the
New
Prison
Litigation Law
This edition of MCLS Notes
contains a two-page information sheet on the new laws that were passed
in
November 1999 to prevent so-called "frivolous" litigation by
prisoners. Everyone
should become
familiar with the new provisions on grievance procedures, indigency
determinations, filing fees, and sanctions that can be imposed in
connection
with litigation.
New
Law Makes
It a Crime for Prison Employees to Have Sex With Prisoners
In November 1999, the legislature
passed a law that makes it a crime for any person employed by a
correctional
institution to have sexual contact with a prisoner.
The employee can be punished by imprisonment
for not more than five years in a state
prison, or by a fine of $10,000 or both.
Under this law, an inmate is considered incapable of
consent to sexual
contact with the employee.
Legal
Notes
Early
Parole
for Pregnant Prisoners
MCLS recently advocated on behalf
of a pregnant prisoner seeking early parole.
Although the parole was not granted, pregnant prisoners
should be aware
of the law that permits early consideration of parole.
The language of General Laws Chapter 127,
§ 142, which was passed in 1918, allows a pregnant woman who
is about to
give birth to be paroled or discharged if it would be in the best
interests of
either the mother or the unborn child.
The parole board regulation that governs this is 120 CMR
200.16. Please note
that there is no right to
be paroled or discharged under these provisions; it is up to the parole
board
or DOC to decide. They
may decide to
allow the woman to go to Houston House rather than release her to the
street. MCLS
suggests that pregnant
prisoners talk with the medical staff of the institution to see if
parole or
discharge would be in the best interest of either the mother or the
unborn
child, and whether medical staff will write a letter stating this. Please write to MCLS
attorney Amy Goldstein
if you are pregnant and have questions about these provisions.
Rashad v.
Commonwealth: Challenge
to Dismissal of
Lost Property Claim
MCLS is representing a prisoner in
the
Collette v.
MCLS is challenging the parole board's application of the 1996 amendment to G.L. c. 127 § 133A that allows for a five year setback (instead of three years) in between parole reviews for prisoners serving second degree life. We are arguing that it is a violation of the ex post facto clauses of the federal and state constitutions to apply that amendment retroactively to prisoners who are serving second degree life for crimes committed before the effective date of the amendment.
Unfortunately, there have been a series of U.S Supreme Court decisions which hold that a prisoner will have to prove that she or he would have been paroled sooner before such an application of the statute can be considered unlawful. For example, a prisoner would have to prove that if he had gotten a two year setback, he would have been paroled at that time. This is very difficult to prove. We are in the midst of doing discovery of the parole board's records concerning this matter.
If we
win this case it will affect all prisoners serving second degree life
for
crimes committed before the effective date of the statute. (We asked for declaratory
relief.) In the
meantime, this office does not have
the resources to take on other clients for this issue.
Nor can we provide representation for
prisoners who have been denied parole and are seeking to appeal or
reverse that
decision. We will
keep prisoners advised
of the status of the case.
Haverty
Update
Haverty v. DuBois is a class action which challenges the confinement of prisoners at MCI-Cedar Junction in "Security Threat Group" (STG) and other restrictive East Wing blocks. Superior Court Judge Charles M. Grabau recently decided a number of motions made by the parties. He agreed to sever the due process claim, which was decided in plaintiffs' favor, from the other claims on which a trial is necessary (equal protection, abuse of force). This will allow the favorable decision we received to be tested on appeal sooner. In fact, the DOC filed their notice of appeal only a few days after the order was issued.
Unfortunately, Judge Grabau stayed (postponed) the effectiveness of his order that prisoners may not be confined without compliance with the regulations governing "Departmental Segregation Units" while the order is being appealed.
Judge
Grabau also suggested that prisoners who were segregated without
compliance
with the DSU regulations are entitled to some amount of earned good
time
credits as compensation, and ordered the parties to negotiate a formula.
Ahearn
v. Vose: Plumbing
at SECC
This is a class action, filed in 1990 to challenge the lack of flush toilets and running water in the cells at SECC. The court dates which had previously been scheduled both for hearing on the DOC's Summary Judgment motions and for trial have been postponed several times, despite our readiness to proceed. Currently, no specific date is set for either, although there is some indication the trial will go forward in the fall. At the suggestion of the court, both sides will submit a joint motion for a Special Judge to be assigned to the case. Thereafter, that judge would hear all aspects of the case. It is hoped that an assignment of this sort will speed the resolution of the case.
The
class of plaintiffs is decertified for purposes of
trial because the
damages are so individualized. The
first
trial will consist of the 5 or so named plaintiffs.
(You do not need to worry about whether you
are a "named plaintiff"; all the named plaintiffs have been
notified.) Although
in theory each
plaintiff has the right to a trial, in fact the results of the first
trial will
probably go a long way to determining whether further trials are
necessary and
whether the case will be settled through negotiations.
PLEASE REMEMBER THAT THERE IS NO GUARANTEE OF
DAMAGES BEING AWARDED IN THIS CASE.
It
is essential that you keep us informed of any changes in address so
that we may
contact you directly when we need to do so.
However, we cannot respond to individual letters. If you were imprisoned at
SECC on or after
August 7, 1990 in a cell without a flush toilet and you have
not contacted
us already, you should write to "Ahearn Case" at MCLS with
the
dates of your incarceration at SECC and your current address.
Sex
Offender Misidentification
MCLS filed a class action on behalf of eight prisoners who were identified as sex offenders by the DOC for absurd reasons (public urination, "mooning" as a prank, consensual sexual relations 45 years ago with a minor close in age). Plaintiffs seek due process protections for prisoners designated as sex offenders, as well as individual relief.
Recent attempts to settle the case without extensive litigation were partially successful. Revised DOC policy now requires that newly admitted prisoners who have committed certain relatively minor "sex crimes" receive a clinical assessment. This assessment was performed on the named plaintiffs in this action, all of whom were "cleared" of the sex offender label. The DOC states that this assessment right also applies to prisoners whose sex offender identification is based on the "sexual overtones" of conduct resulting in the conviction of a non-sex crime, but the policy does not say this and is deficient in other important respects. Further, the DOC is not willing to provide clinical assessment to many prisoners questionably identified prior to recent changes in policy. As a result, MCLS is aggressively pursuing their claims in ongoing litigation.
Prisoners
who believe they have been misidentified should direct letters which
tell their
stories to MCLS attorney Phillip Kassel.
Include: (1) the reason why you are designated as a sex
offender; (2)
whether you have been given any opportunity to contest the designation
and, if
so, what opportunity you have been offered; (3) any hardship you have
suffered
as a result of the designation such as harassment by correctional
officers or
other prisoners; loss of parole or more favorable custody status; loss
of
employment or programming opportunities.
All letters should conclude with the following words:
"Sworn and
subscribed under the pains and penalties of perjury," followed by your
signature. These letters will help us to establish the prevalence of
this
problem and could be used as affidavits in court if negotiations fail. Prisoners sending letters
will not
necessarily receive responses. Rather,
all names will be placed on a list of prisoners whom we will notify of
any
procedural protections that result from the case.
SOTP/Civil
Commitment Update
The Department of Correction recently began asking prisoners identified as sex offenders to sign a form that waives the right to confidentiality in Sex Offender Treatment Program (SOTP) therapy sessions. Although prisoners have long been required to sign a similar form, the latest version is revised in a particularly troublesome way. Prisoners who sign the form give consent to treatment staff to testify against them in lifetime civil commitment proceedings for "sexually dangerous" persons. Prisoners who refuse to sign the form are terminated from the SOTP. Many prisoners have contacted MCLS for help in deciding whether to sign this form.
Civil commitment (for a period of a day to life) for "sexually dangerous" persons was recently reestablished by the legislature after having been abolished for many years. A number of Superior Court judges have since held that convictions resulting from offenses committed before the law was passed on September 10, 1999 cannot be used to support a civil commitment based on "sexual dangerousness." These cases are on appeal. In the mean time, if you are approaching your discharge date and are notified that civil commitment proceedings will be started, you will be entitled to a court-appointed lawyer to represent you. The Committee For Public Counsel Services (CPCS) is the public defender service that handles these cases.
Until
the recent cases are decided by an
Treatment staff encourage prisoners to be honest and disclose information about themselves and their offenses in SOTP therapy. It is possible that prisoners will reveal private thoughts or inclinations that will support the Commonwealth's assertion of "sexual dangerousness" when recounted later in a civil commitment proceeding. If you are too cautious in these therapy sessions, that could be used against you to show that you are not rehabilitated and at risk to reoffend. In other words, participation in SOTP therapy could be used against you later if you do speak honestly and if you don't speak honestly. Given the potential for lifetime civil commitment, these are grave risks. If you decide to sign the waiver, another option is to write on it that you are signing it under duress.
Of course, refusal to sign the waiver form and to participate in SOTP can also be used against a prisoner in a later civil commitment proceeding. In addition, prisoners terminated from the SOTP lose any possibility of moving to minimum security and of enhancing chances for parole, since DOC policy forbids prisoners identified as sex offenders who refuse treatment to transfer below medium security. It is not clear, however, if this factor is entitled to much weight when deciding whether or not to sign the waiver. While MCLS does not have any statistics on the number of SOTP participants who move to lower security, our sense is that few identified sex offenders ever make it through all the levels of the SOTP into minimum security. Therefore, the possibility of moving to minimum security may not justify the risk of improving the Commonwealth's case against you in later civil commitment proceedings.
Prisoners
who refuse to sign the waiver also forfeit the potential for developing
a good
relationship with a therapist who can help fight
civil commitment down
the road. This
might be especially
important for a prisoner convicted of a serious sex offense who will
likely
face a strong case for civil commitment.
Also, some prisoners may regret losing the opportunity to
genuinely
benefit from treatment and improve as human beings.
These are matters which must be weighed
individually.
Landry v. Attorney
General: Seizure
of Blood for DNA Database
In
April 1999, the
In
June 1999, the SJC issued a decision in another case about the DNA
database, Murphy
v. Department of Correction.
In that
case, the court ruled that prisoners must provide a blood sample if
they were
convicted of a listed offense in the past, even if they are currently
serving a
sentence for a non-listed offense.
The
law applies to anyone incarcerated on or after December 29, 1997,
regardless of
when the listed offense occurred.
However, the law only applies to parolees and probationers
who are on
parole or probation as a result of the listed offense.
HIV
Treatment at
MCLS
attorney Lisa M. Otero and paralegal Dianne McLaughlin are
investigating the
provision of HIV/AIDS medical treatment at the South Bay HOC. We invite
Disciplinary
Hearings
Due to limited resources, MCLS can advise, but cannot provide direct representation, in administrative proceedings. For assistance, send a copy of your disciplinary report with a brief explanation to:
1) Prison
Legal Assistance Project (PLAP), Austin Hall,
2) Prisoners'
Assistance Project (Sept. to Feb. only), Northeastern
University School of
Law,
You may be able to obtain a continuance until you find out whether representation is available. If direct representation is not available, the law schools can provide self-help materials.
Prisoners
should be aware of the time limitations in the disciplinary hearing
process set
forth in 103 CMR 430. The
reporting
officer and other witnesses (as well as physical and documentary
evidence) must
be requested in writing within 24 hours of receiving the witness
request form
(see 103 CMR 430.11). Prisoners
are
advised to write a summary of what each witness will say (or the
significance
of other evidence) to show why the witness is relevant.
Prisoners may appeal a guilty finding or
sanction to the superintendent within 5 days of receiving the hearing
officer's
decision (103 CMR 430.18). Prisoners
then have 60 days from the administrative decision to bring state law
claims in
court pursuant to Massachusetts General Laws Chapter 249, § 4 (action
in the
nature of certiorari). There
is a 3 year
statute of limitation to file in court for federal civil rights
violations and
for declarations of rights.
MCLS
Attorney Telephone Assistance
Inmates
who wish to speak to an MCLS attorney, please call collect: (617)
482-4124,
Mondays from 1 p.m. to 4 p.m. Families
and friends of inmates may call our toll free number (within MA):
1-800-882-1413. Prisoners
who cannot
reach us by phone are encouraged to write to the attorney handling
their case
or to the "Intake Attorney."
Please include your commitment number.