FEMALE PRISONERS' DEATHS' QUESTIONED
MONTICELLO, FL - During November
'98 the FPLP staff received several letters
from correspondents at Jefferson Correctional Institution (JCI), located in Monticello, FL, expressing concern about the
circumstances surrounding the hanging
"suicide" of a female prisoner in the
confinement unit at the institution.
Something wasn't right, the letters
wamed. There was more to the death than
prison officials wanted to be known, the
letters informed. Rumors were flashing
among the other prisoners, it may not
have been a suicide or if it waS something
forced it, and officials were trying to keep
what really happened secret.
It's hard to keep a secret in such a
closed environment though, and this one
proved impossible to keep as more letters
were written and answers begin to be
demanded. The full truth still is not
known, but the details that did surface in
late November were enough to spark outrage from many in Florida and lead to
calls for a full-scale independent investigation of the Florida Department of Corrections (FDOC) lUld prisoner abuse
and conditions of confinement in
particular.
The incident began routinely enough
(for Florida prisons) when Florence Krell,
an attractive 40-year-old female prisoner

iN THiS lSSUE

•

found herself in solitary confinement at
Jefferson CI after she had filed
complaints with prison officials alleging brutality and harassment by prison
guards.
Thi.s was Florence Krell's first time
in prison,' she had no significant prior
record. She was on probation for burglary in early ]998 when her boyfriend
reported her to police for failing to return his rental car. Krell, who lived in
Hollywood, FL, was then convicted
for grand theft and sentenced to
18-months in prison for the rental car
incident. She became another of the
many hundreds, if not thousands, of
women sentenced to prison in Florida .
for relatively minor non-violent offenses.
Krell was sent to JCI in September
of 1998. Almost from the start she was
labeled a trouble-maker by prison staff.
She apparently could not believe the
world that she had been thrown into and
what was allowed to go on in it. She
mistakenly believed that it was okay to
speak out about it, as anyone would
who has no knowledge about how
widespread it is becoming in the FDOC
for prison staff and officials to use any
means to suppress any complaints by
prisoners under the "get tougher"

policies. Krell apparently did not
understand that many prison guards and
officials believe that they can treat prisoners any way they desire now that
prisoners have had their access to the
courts almost totally cut off, and amid
the retribution-not-rehabilitation "get
tougher on prisoners" political demagoguery that
encourages prisoner
abuse.
. Krell, the mother of two children
and the daughter of a former police
detective, perhaps thought she had some
"right" to speak out. Sadly, she soon
learned the truth the toughest way of all.
In mid-October Florence Krell was
found hanging dead in her prison cell.
No one seems to know exactly what
started Krell's problems. FDOC
grievance records, document that she'
had frantically and repeatedly filed
grievances asking higher officials to
stop guards from harassing her. All of
those were denied. In a letter, that was
later confiscated by prison officials,
Krell wrote that she "lost it" on Sept.
17. She allegedly threw all her possession into the hallway and threatened to
jump offher top bunk unless the guards
quit harassing her.
In response to this guards, pumped
pepper spray into her cell until she al-

FROM THE EDITOR
NEW FDOC SECRETARY NAMED
FL CORR. COMMISSION 1998 ANNUAL REPORT
FDOC MAIL RULES AMENDMENTS RE·PROPOSED
NOTABLE CASES
AROUND THE NATION
LITERATURE REVIEW

4
4
5
7
9
12
14

most could not breathe and her skin and
eyes burned. Then guards entered the cell'
and took her mattress and clothing. "I
laid down naked on the metal, no blankets, nothing to cover up," she later
wrote. "I laid in that room untH 'the next
morning they gave me a blanket."
After several days ofthese conditi.ons
Krell asked a confinement officer to allow her to speak to a higher official.
Little did she know that such a request
often triggers retaliation. In Krell's
case, two male guards accompanied by
two female guards suddenly showed up
at her cell door after the request.
She had "contraband" they said, in
the form of "toilet paper and a plastic
cup." They demanded that she stand
naked before them while they recovered
the "contraband." "I said 'No,' because I
was naked and the two male guards were
present," Krell later wrote in one of her
formal grievances filed with the FDOC.
The guards claimed that 'she was on a
"suicide watch," but records later obtained by the Tampa Tribune did not
confirm this. But when Krell refused to
stand up, "[t]he two males pulled me off
the bed by my feet and legs. I tried to go
under the bed ... and the female sergeant
grabbed my ankle and twisted it, n her
grievance continued.
Overpowered, Krell tried to retain
what little human dignity she had left.
She apparently could not conceive that
she would be forced to put herself on
display nude before two male guards.
That is when the $truggle begin.
The incident ended predictably
against such overwhelming odds; Krell
was forced to the floor by all the officers,
she was handcuffed behind her back, and
left laying naked on the bare concrete
floor of the cell. She later wrote that she
was left that way for days-without water.
FDOC officials refuse to say much
about Krell's death. They refused all
comment about it to FPLP staff. They
reported Krell's death as a "suspected"
suicide, but have refused to release an
autopsy report.
What is known is that ·the day before
Krell died she ha4 written tormented,
desperate letters to Broward Co. Judge
Robert Carney, who had sentenced her to
prison, and to her mother describing what
had been done to her and expressing her

F.P.L.P. VOLUME 5, ISSUE 1

fear of further harm, while asking Judge
Carney to please investigate and help her.
Prison records document that before she
could mail the letters, however, that they
where "confiscated" by guards asserting
that they had the right to seize thembecause she failed to write "legal mail" on
the envelope to the judge. No explanation
has been given why her letters to her
mother were confiscated.
Although JCI prison officials could
not verify that Krell was under a suicide
watch before her death, records verify that
she had been assigned to a prison psychologist, as all prisoners in confinement are
suppose to be. But further inquiry into that
revealed some disturbing facts. Reporters
from the Tampa Tribune, who worked
closely with FPLP staff as this story unfolded, discovered that the prison psychologist assigned to Krell, David A.
Schriemer, had no valid credentials to
practice psychology.
.Schriemer, it was discovered, had nothing but a mail-order doctorate, from a nonaccredited school. He, however, was listed
not only as a psychologist at JCI, he was
the "senior" psychologist at the institution.
The FDOC claims that it had twice
tried to dem()te Schriemer because of his
lack of educational and professional
credentials. Yet, each time, inexplicably,
Schriemer was reinstated by the state Public Employees Relations Commission; decisions that records show the FDOC did
not appeal. No one has explained how
Schriemer was hired in the fll'st place
with such bogus credentials. No one has
been held accountable for his being hired
or promoted to "senior" psychologist.
Other disturbing facts continued to
come to light in the investigation of Krell's
death. Apparently Schriemer's situation
was "overlooked" in October when the
state Correctional Medical Authority
(CMA), which is responsible for overseeing the FDOC's medical services, cited
JCI for a' number of deficiencies. The
CMA found several problems with JCl's .
mental health care services, including
prisoners being prescribed powerful,
mood-altering, psychotropic drugs-without
their consent. Without the autopsy report,
it is not known if Krell was one of those
prisoners or not.
In early Dec., after it became known
that the investigation was being contin-

FLORIDA PRISON LEGAL
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The infonnation in this publication provides news
and opinion from various sources and may not provide sufficient information to deal with a legal problem. Neither the p'ublisher. nor staff, WlImIIlts or
rep.resents the suilllbility of the informalion in this
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Page 2

)
ued by mainstream media reporters, sev, eral officials were called on to comment
on Krell's death. Howard Simon, executive director of the Miami Chapter of
the ACLU, called for an independent investigation, stating, "I just don't think you
can trust the system to investigate itself. If
you allow the system to inveStigate itself,
nobody should b'a surprised when,six
months from no\\, the Department [of
Corrections) comes back and says that,
though it was a regre\1able ouicome, nobody from the Department of Corrections
did anything wrong. 't
Called upon to i~vestigate, Leon Co.
State Attorney Willie Meggs said he will
review Krell's death to see if criminal
charges were warranted. Gov. Chiles said,
through a spokesperson, that he would not
start an independent investigation until the
FDOC finished their investigation and issued a report. Gov.-elect Jeb Bush said
that he "might" intervene in the state's
inquiry into Krell's death.
,
State Sen. Ginny Brown-Waite, newly
appointed chairwoman of the state Senate
Criminal Justice Committee, commented
that she would see'k further info on Krell's
death from the FDOC.
The Tampa Tribune first reported on
Krell's death on Nov. 29th. This was followed by a report in the Dec. Ist Miami
Herald. While the politicians formulated
their comments as above, and the FDOC
hurried to defend itself by claiming that
this was the first female prisoner suicide
ever in Florida, on Dec. 3rd '98, another
female prisoner was found hanging in a
Jefferson CI confinement cell.
Stunned? So were the FPLP staff
and others who had rallied for the
disclosure of facts surrounding Krell's
death. On Dec. 4th, as the Tampa Tribune went to press with more facts in
Krell's situation, it was only able to ~eport
that FDOC officials were reporting
another female prisoner's attempted suicide, while not n~ming her pending
family notification. The "attempt" was
successful, the prisoner died on Dec. 5th
in a Tallahassee hospital.
Her name was Christine Elmore, a
25-year-old Polk County woman. Elmore's death did not create the stir that
Krell's did but the circumstances of her
death have not been fully explored yet.
What is known is that she was in prison
for murder and robbery with a life and a

F.P.L.P. VOLUME 5, ISSUE 1

fourteen year sentence that she had received in 1996. She also had a record
from 1994, where she had served community supervision for other charges.
The FQOC has not released much information about Elmore's death. Silence.
seems to have been selected as the best
cJefense; they state they. are still
"investigatinp" her death.
_FPLP staf,f contacted ,Christine Elmore's father,' who stated that he does not
believe that she would have killed herself.
He told, FPLP's publisher Teresa Bums
that he had just talked to Christine on the
phone a few days before she died and she
did not seem depressed or upset about
anything then. He considers her death suspicious.
Following this second death, the
Miami office of the ACLU, through its
executive director, Howard Simon,
wrote a belated letter to Gov. Chiles
condemning these tragic events and again
calling on Gov. Chiles to appoint ali independent panel to review conditions ofconfinement for female prisoners in Florida.
Simon wrote, "While there is still considerable secrecy with regard to the death
of Christine Elmore, facts already established with regard to the death of Florence
Krell raise serious questions about the
treatment of the 886 female inmates at
that institution." Simon continued, "For
a number of reasons, - we believe that
the incidents at the Jefferson Correctional Institution may reflect systematic
mistreatment of female prisoners at that
facilitY and the three other state prisons
for women."
It is notable that the Florida ACLU
had "reasons" to believe that female prisoners were being mistreated before Krell's
and Elmore's deaths, but had did nothing
about it. Simon ,stated in his letter to Gov.
Chiles that both the Miami ACLU office
and the national office have been receiving complaints by women prisoners in
Florida alleging physical and emotional
abuse, but to FPLP's knowledge this is
the first letter or action taken by the Miami office to even admit there is a problem.
The Miami ACLU, however, intends
to pursue this matter. On Dec. ~4th Simon
announced that the U.S. Justice Department had begun a preliminary inquiry into
Krell's and Elmore's deaths. "It's at the
preliminary stage. I have had a discussion

with the people in the Civil Rights Division, and they are looking at it to see if an
investigation is warranted, said Simon.
Simon also repeated his call for an
independent investigation into prison conditions for women. To Florida's new Inspector General, Marcia Cooke, he wrote
noting the Justice Department's inquiry
and that his office had received anonymous contact from prison staff reporting
"practices which include sexual activity
between inmates and correctional officers,
significant sexual abuse and harassment,
deliberate medical mistreatment, and
unnecessary violent activity directed at
women prisoners." But, he noted, the Miami ACLU had not confirmed these reports.
The day before Simon's announcement of the Justice Department inquiry, it
was not surprising when the Leon Co.
State Attorney sanctioned an FDOC report finding that Krell's death was a
suicide. Elmore's death continued to be
"investigated" by the FDOC.
During December, outgoing FDOC
Secretary Harry Singletary rejected an offer by the Florida Department of Law
Enforcement to assist the FDOC in the
investigation ofthe two deaths.
This situation has highlighted the
need for an independent and impartial
body with the power to investigate the
operation of the FDOC. FPLP has been
warning of sexual abuse and harassment
and mistreatment of female prisoners in
Florida for quite a while now. But, the
problems are certainly more widespread.
While conditions in the female prisons
certainly need attention and correction,
there is an apparent epidemic of abuse
in our prisons, especially in the confinement units. FPLP staff has received
recent information that a prisoner in confinement at Charlotte CI had his neck
broken in a "use of force" by prison
guards. This information comes only a
few months after I0 prison guards at
Charlotte CI were indicted by a federal
grand jury for the torturous beatings ofan
HIV+ prisoner with him being deliberately allowed to bleed to death, chained to
a steel confinement bed, after slashing his
wrists.
In a letter to her mother, confiscated
by JCI guards the day before she died,
Florence Krell's words echo far beyond
her death, martyring her in the struggle
II

Page 3

occurring in our prisons, and demanding
more response than just words or posturing. "I will be 41 this Thursday.... rm not
a little girl anymore and not all that grown
yet, but ... in any fight I don't like to be
down on the ground.... I will tell the people of Florida this until they find out what
they are doing and have done to me." BOB POSEY.

FROM THE EDITOR, ','
Over the past four years FPLP has
grown from a hand-typed, photocopied
flyer with less than 10 subscribers to a
computer lay-out, professionally printed
newsletter that is approaching 2500 subscribers, with perhaps three to four times
that number of actual readers. Not bad!
What is even better is that it has become
more than just a newsletter, one of the
initial goals was to fonn a network and
that is being achieved. The importance of
this, in this era of "I can get tougher than
you" and "lock them up and throwaway
the key" knee-jerk policies and. demagoguery, cannot be overstated.
I would like to take this opportunity to
personally and publicly thank those who I
know have worked the hardest to make
FPLP possible and help achieve the goals.
:rHANK YOU, to Teresa Bums, my wonderful wife and the life-force in many
aspects of FPLP, and to John Oaks, for his
enduring loyalty and excellent layout
work over the years. THANK YOU, to
Lisa Faulkner, assistant non-pareH, and to
Tracie Rose, Sherrie Johnson, Darryl
(Spock) McGlamry and David Bauer,
Esq., for all your work and faith. THANK
YOU, to FPLis advisors, who have
helped guide the way and set the goals,
and to all those who have contributed to
keep FPLP going strong.
In December an important goal was
realized. FPLP's parent organization,
Florida Prisoners' Legal Aid Org., Inc.,
was granted 50I(c)(3) federal non-pro~t
status. As FPLP is a project of the orgamzation, donations to either are now tax
deductible with the IRS. This is also
going to allow reduced postage co~ts ~nd
other benefits to help the organIzatIon
grow in the long run..
. .
The directors are lookmg at modlfymg
the by-laws to include membe':5h~p into
the organization with, subscrIptIon to

F.P.L.P. VOLUME 5, ISSUE 1

FPLP. This, if adopted, would include more changes that are expected. Staff is
voting rights in the direction the organiza- working now to increase the number of
tion takes and in the projects taken on. pages in each issue of FPLP. This should
Any input on this is welcome by the staff. occur in the next issue or so. We are
The general consensus is that it will be also looking for someone interested in
adopted s o o n . '
,
operating the FPLP W~bsite. There are,
Another change, that is ljasically un- currently two FPLP sit~s on the Internet,
~voidable as the paper and,organization but they only carry pasic infonnation.
grows, beginning May 31, 1999, there will That is, because we do not have a Webbe a slight increase in subscription rates master with the time .to post info to the
for FPLP. One year subscriptions for pris- site and ~ep it updated. Anyone interoners will change the least, from $5. to ested in serving as FPLP's Webmaster
$6. Rates for non-prisoners, free citi- please contact me directly ar: ,Rr. 7, Box
zens, will go from the current $~O to 376, Lake City FL 32055. It is very im$12, and business/institution rates WIll go portant that the news is distributed on this
from $25 to $30 per year. Low-income valuable medium.
family members or friends of Florida prisWell, that's about all for this issue. I
oners who cannot afford the increased would asked that you enjoy this issue,
rates can obtain a subscription for what- except for the fact that it contains some
ever they can donate.
very disturbing news. It will continue to
Until May 31 st, you may still sub- get more disturbing unless we continue to
scribe. to, or renew and extend your cur:- work together for change. Encourage
rent subscription, to FPLP at the current others to subscribe and get involved and
rates 'of $5, SIO, or S25, respectively. those changes will come. Prisoners, en:After May 31 st, however, any subscrip- courage your family members and friends
tions received paying the "old" rates will to attend the Tallahassee Rally on March
be pro-rated, with such subscribers receiv- 11th. Yours truly, BOB POSEY, Editor.
ing 5 instead of 6 issues per year subscrip- ...-'""":'"
-:-,
tion. New U.S. postage stamps will still be
NEWS BRIEF
accepted after May 31 st for subscriptions
in an amount at least equal to the new On September 28, ]998, the FDOC had a
rates.
total prison population of 66,861 and a
During September and October '98 a total bed capacity of 71,580. The
few FL prisons attempted to reject FPLP Florida Criminal Justice Estimating
going to prisoners. The staff did not re- Conference detennined in a meeting held
ceive any official notice of this attempt. September 28, 1998, that no new prison
When prisoners wrote infonning the staff beds will be needed until 2002.•
of the attempt, an immediate appeal was
filed to the central office and the rejec- L
____
tions were subsequently overturned. All
prisoners should have received Vol. 4,
GET TOUGH' HARD-LINER
Issues 4 and 5. Issue 6 was held up at
some institutions in November and DeNAMED
cember for almost two weeks as mailroom AS NEW FDOC SECRETARY
stafT apparently waited to see if another
by Teresa Bums
institution would reject it before giving it
TALLAHASSEE- On December 30th
to subscribers. This practice needs to be
challenged if it continues. It is immaterial Florida's new governor - Jeb Bush - named
if another institution rejects, rejections Michael W. Moore to replace HlUTy K. Singlemust be based on the conditions of your tary as the head of the Florida Department of
Corrections (FDOC). Moore will have to be
particular institution and ~an only be ma~e confirmed by the state Senate before taking
by your particular supermtendent or hIS! over the position, but with a Republican rna·
her designee. Please infonn the staff.if you jority it is likely there will be n~ ~roble.m. If
experience rejection or problem WIth re- confirmed, Moore, in many OpiniOnS, IS exceiving FPLP and use the appeal proce- actly what the FDOC does not need: an antidures to challenge any and all publication program, get tough conservat~ve. who has a
controversial history in correctIons.
rejections.
Michael Moore, 50, has served since 1995
In the immediate future there are some

Page 4

as the head of South Carolina's prison system.
Shortly after taking over there he was credited
with a riot involving 1,100 prisoners at the Broad
River Correctional Institution behind new getlOugh-on-prisoners policies. As soon as Moore
lOOk over in S.C. he began dismantling decadesold policies and programs, many of which benefited prisoners in helping them reintegrate into
society upon release.
Among the new S.C. policies, Moore forced
prisoners to be clean shaven and wear short hair,
regardless if it conflicted with religious practices or medical needs: He also abolished a
college education program and prisoner workrelease program. As the S.C. director, he
stopped prisoners from receiving packages
from family members, banned personnel
clothing. and increased mail and publication
censorship.
Criticized by. civil ~ghts groups ~d even
moderate .~epubhcans ~n the S.C. legIslature,
Moore onglnally a natIve of Houston, worked
as a regional director of the Texas DOC before
going to Soulh Carolina. An informed source
within the FDOC claims that Moore's appointment by Jeb Bush is politically motivated and
connected with Bush's brother being govem~r in
Tex~: Bush chose M.oore over .several quahfied
Flondlans who were Inlerested In the top FDOC
position, yet who were more moderate.
As soon as Bush named Moore to take over
the FDOC the FPLP staff began receiving· email
and faxes from S.C. advising strong opposi?on to. his confi~ation. Accordi~g 10 that
informatIOn, famd~ members, friends and
advocates of S.C. pnsoners were forced to organize to have Moore removed from the SC DOC
position. They credit organized polilical iobbying
and voting in a Democral governor during the last
election with Moore's desire to find a new job iri
Flori~a. He will ~e an ap~roximale $20,O~0
loss .In pay by coming to Flonda, but would stdl
receIVe over $100,000 per year.
Despite his known history. Moore's potential
appointment drew weak or naive responses from
some of Florida's supposed prison watchdog
groups. The executive direclor of the Miami
ACLU,. Howard Simon, cauliously conu,nented
that Moore needs ~o re~~ber that pnsoners
need to be productIve clllzens when released.
John Fullef, executive director of Ihe Florida
Corrections Commission, that was formed to
oversee the FDOC, said that Moore should "feel
right at home here." Whether this was a reference
to Moore being good-ol-boy malerial was not
acknowledged, but is suspected. "I don't know
how you can gel much stricter. We're prelly
tough down here already." Fuller continued.
Obviously Fuller doesn't have a clue how far
demagogues and knee-jerk ambitionists can or
will go.
Moore defended his actions in S.C. on Dec.
30th, explaining that the S.C. prison system "was
aOOul30 years behind. and the inmales controlled
it."

During early January FPLP staff contacted Jeb Bush's office expressing opposition to

F.P.L.P. VOLUME 5, ISSUE 1

I

/
Moore's appointment. and disappointment that
The bad news is that the programs
Bush would start out by going backwards.•
available to youthful offenders are
severely underfunded. More than 86% of
FL CORRECTIONS
this population is on waiting lists for placeCOMMISSION 1998
ment in academic, vocational and substance abuse programs. The vast majority
ANNUAL REPORT
of this popUlation is released back into the
The Florida Corrections Commission ~ommunity before they have had a chance
r.eleased its annual report for 1998 on to participate in any programming.
The Commission characterized the curNovember 1st. The Commission was created by the legislature to oversee the oper- rent youthful offender institutions as
ation of the corrections system in "warehouses" and in its intensive coverage
Florida and to make reports and recom- of this area concluded that it is essential
mendations, independent of the Florida that the legislature address the lack of fundDepartment ofCorrections (FDOC), to the ing in this important area.
Governor and Legislature on issues conceming the state prison system. The Com- HIV/AIDS in FL Prisons: The Commismission has been in existence now four sion reports that its findings in this area "are
E h
h C
..
.
years. ac year t e om~lsslon revIews disconcerting, jf not alarming." The
several areas of the FDOCs management Commission found that in 1995 Florida
and operation and issues a report on its ranked seventh nationally, in HIV/AIDS
findings. In this latest report the Commis- cases as a percentage qftotal prison populasion reviewed nine separate areas.
tion (3.4%). In that same year, Florida
The areas reviewed by the Commis- ranked second in the number of confirmed
. . 1998' I d . (I) E
. M h
slon. m
mc u e.
xecutl~n et- AIDS cases ofall state prison systems.
Between 1989 and 1997, AIDS deaths
ods Used by States; (2) InspectIOns and
Investigations in FL Jails; (3) Condi- accounted for over half ofall inmate deaths
tional Medical Release Program; (4) in Florida prisons. The Commission
Youthful Offender Program; (5) HIVI emphasized that the HIVIAIDS diagnosed
AIDS in Corrections; (6) Change of Pri- cases are not. accurate, and understated,
.
where all inmates are not tested and that
vate Prison Company at Gadsden CI; 7)
Special Risk Retirement for CPOs; (8) many inmates are believed to pass
Comparison of Programs for Male and through the system undiagnosed.
In 1997-98 there were a total of 2,274
Female Offenders; and (9) FDOC Legislative Budget and Substantive Requests:
confirmed cases of HIV diagnosed inmates
Fully summarizing this 268 page in the FDOC. During the same period there
. •
.
rep~rt IS. not posslbl.e m the sp~ce 'were 745 confirmed cases of AIDS.
The Commission found that costs for
avaIlable In· FPLP. ThIS report contams
much useful and interesting information, testing and treatment of HI VIA IDS have far
however, so some of the most impor- exceeded the legislative appropriation furtant areas reviewed and findings of the nish~d for such. The FDOC is estimated to
report will be covered here.
spend over $21 million for HIV treatment
alone during the 98-99 year, representing
Youthful Offender Program: The Com- 7% of the total health care budget for the
mission reports that it intensively re- entire prison population. Even this amount·
viewed the FDOC's Youthful Offender was found not to provide for the financial
Program and found both good and bad costs needed to address this serious probnews. The good news is that the FDOC lem.
continues in large part to separate
An approximate $14 million deficit
youthful offenders, who are defined as
age 25 and younger and serving their first will be experienced in the funding for treatfelony commitment, from adult prisoners; ment of HIVIAIDS in Florida prisons
that the program is designed to offer reha- during the 1998-99 year. The Commisbilitation opportunities to youthful of- sion recommended that additional funds be
fenders; and that the FDOC has several budgeted in this area by the legislature.
good vocational programs available to this
Conditional Medical Release Propopulation.

Page 5

gram: This program allows terminally ill
or permanently incapacitated inmates to
be released from prison prior to
completion of their sentence. The authority to grant or deny conditional medical
release rests solely with the Florida Parole
Commission.
Since the inception of the program in
1992 through June 1998, 271 inmates
were referred by the FDOC to the Parole
Commission for conditional medical release. Of that number 106 inmates were
granted medical release, 133 were denied,
29 died before the Parole Commission
could vote on their case, and 3 cases received no action.
The primary problem with this program, according to the Commission, is that
neither the Parole Commission nor the
FDOC has a policy and procedure
directive that sets forth timeframes that
must be followed
consideration of an
inmate for conditional medical release.
This resulted in· the high number of inmates who died after being recommended
but before the Parole Commission voted
on their release.
.
The Commission recommended that
current statutes be revised to provided that
inmates serving a life sentence not be
eligible for medical release, as deathsentenced inmates are not eligible now,
and that the legislature amend current
statutes to provide additional criteria that
the Parole 'Commission must consider in
medical release cases.

i,

Private Prison: Gadsden CI: The
Commission noted that during April of
1998 privately operated prison Gadsden
Correctional Institution (female) changed
management. Gadsden had been operated
by United States Corrections Corporation
(USCe) but changed hands when Corrections Corporation of America purchased
and merged with USCC. However, Corrections Corporation of America did not
notify the FDOC of the change for over a
month after the change became effective,
and inmates at the institution were never
notified ofthe change in management. The
Commission recommended that future
contracts with private companies to operate prisons include a clause concerning
protocol in management changes.
Program Comparison, Male/Female: The Commission found th'at female

inmates have program opportunities eq- tice Ben Overton who will retire in January
.
uitable to male inmates,' but noted that 19~
Justice Peggy Quince is the first Black
there continues to be a shortage of fulltime job assignments for all inmates who woman to be appointed to the state's highest
are.capable of working. Relying on FDOC court. Quince, age 50, joins Barbara Pariente as
statistics, the Commission found that over the second woman on the seven judge court.
is a native of Norfolk, Va., and.has sat as
7000 inmates who could work do not She
an appeal judge in the Second DCA since
have a meaningful job assignment [these 1994. She graduated from Howard University
figures are seriously fudged, FPLP staff in 1970 and earned her law degree from the
estimates that over 50% of FL prisoners Catholic University of America in 1975.
have no meaningful work to do-ed].
Quince worked for the state anomey general for
As it has in the past, the Commis- 13 years under Jim Smith and Bob Buttersion recommended that the FDOC place worth, with 3 years exclusively defending
emphasis on encouraging PIE programs death penalty prosecutions, before moving to
that allow the FDOC under federal law to the court ofappeal. •
contract with private companies to operate ,
businesses in the prison system. The Com- PENDING CHALLENGE TO
mission also recommended, again, that
FDOCRULE
Jefferson CI, a female prison located in
North Florida, be converted to a male
In 1996, the FL legislature amended the
institution and a South Florida male insti- Administrative Procedures Act (Ch. 120,
tution be converted to house Jefferson CI .F.S. [1997]) which, in part, modified the
inmates so that female prisoners from standards that authorize state agencies to
South Florida can be closer to their home. make rules. Under the new Act, an agency
The Commission also recom- may only adopt a rule that implements a
mended that the FDOC design and pro- specific law (Sec. 120.52(8)(g) and
vide long distance parenting programs for 120.536, F.S. [1997]).
female prisoners and their children; design
During March I~98, Capitol News Serprograms to assist with the identified vice and reporter Mike Vasilinda filed a
needs of female prisoners' children; and, petition with the Division of Administraprovide domestic violence awareness and tive Hearings (DOAH) asserting that Rule
education classes to all female prisoners. 33-15.002, F.A.C., disallowing the elecThe Florida Corrections Commis- tronic or mechanical recording of execusion's 1998 AMual Report is available on tions, is a invalid exercise of delegated
the Internet at: www.dos.state.n.uslfgils/ legislative authority, as no specific statute
agencies/fcc. The Commissions E-mail authorizes such rule.
address is: fcorcom@mal1.dc.state.n.us.
During the 1998 legislative session,
And the Commission's address is listed the FL House of Representatives' Comon the back ofthis issue of FPLP..
mittee on Corrections filed HE 4819 that
...-_ _....:.
--, would have adopted Rule 33-15.002,
NEWS BRIEF
F.A.C., as a law. That bill, however, died
without passage when the session ended on
The Florida Department of Corrections May I, 1998.
•
(FDOC) is divided into five regions,
Even so, the DOAH dismissed the case
has more than 29,000 employees, and brought by Capitol News Service without a
received a budget in excess of $1.6 billion hearing. The plaintiffs petitioned for reinfor the 1998-99 fiscal year.l
statement ofthe case, and again the DOAH
denied a hearing. As of October I, 1998,
FL SUPREME COURT
the plaintiffs filed an appeal in the 1st
New Justices
DCA of the DOAH's action and a ruling on
this issue is pending.
On December 7, 1998, Governor Chiles
The resolution of this case should be
appointed Miami trial attorney R. Fred Lewis watched for. The FDOC's general ruleto the Florida Supreme Court. Lewis replaces making authority at Sec. 944.09(1)(r), F.S.,
retiring Justice Gerald Kogan. The following
day, December 8, 1998, both Governor was repealed during the 1998 legislative
Chiles and Govemor-elect Jeb Bush jointly session. Right now it appears that many of
appointed Peggy A. Quince, a Second District the department's rules, that had been
Court of Appeal (DCA) judge, to replace Jus-

F.P.L.P. VOLUME 5, ISSUE 1

Page 6

'.

adopted under that former general authority, where no other specific statutory
thority exists validifying them, are potentially invalid exercises of delegated legislative authority.
In a couple of recent p,risoner. initiated challenges to rules without
specific statutory authority the FDOC is
attempting to maintain that the general
and vague provisions of Sec. 944.09(i)(a)
and (e), F.S., still gives them the authority
to adopt any rule they wish or keep rules
that were adopted under the former
944.09(1)(r). This does not appear to
comply with the intent of the new section
at I20.52(8)(g) or 120.536, F.S.
If Capitol News Service is successful in
their challenge, this may open the FDOC
up to challenges to invalidate many of
the current rules of the department. For
a further understanding of the recent Sec.
.120.52(8)(g) and 120:536, F.S., requirements see: The Florida Bar Journal,
March 1997 issue, "Legislative Oversight," by Patrick Imhof and James Rhea,
page 28-34. -ed •

au-

r--.-;..-------------..
CRIME RATES
CONTINUE TO DROP

A U.S. Department of Justice final
report released November 22, 1998,
shows that violent crime rates dropped in
1997 for the sixth consecutive year;
Overall, the number of violent crimes,
including murder, rape, robbery and aggravated assault, dropped 3.2% in 1997.
Murder rates dropped to the lowest in 30
years.
Nationwide, since 1991, murder
rates have fallen almost 28%, rape is
down 13%, and robberies have plunged
29%.
In Florida, overall crime rates fell 3%
and violent crime rates fell 2.6% in 1997.
In preliminary statistics released by
the FBI on December 13, 1998, figures
show that violent crimes were down 7%
and property crimes down 5% in the first
six months of 1998 as compared to the
first six months of 1997.•

---J

L..-

Web Page Address:
http://members.aol.com/fplp/fplp.hlml
E-mail Address:fplp@aol.com
Telephone: (407) 568-0200

F.P.L.P. VOLUME 5, ISSUE
1
.

: Often prisoners no longer have an attorney
and must depend on family members/
friends to obtain and send them legal
documents such as transcripts, pleadings,
In the last issue of FPLP it was re- discovery reports, from the courts. Or tbe
ported that the FDOC had withdmwn its prisoner may have such materials stored at
proposed rulemaking to make numerous home and need it to be sent to work on
changes to the department'~ rules con- hislher case. The provisions of this new
ceming routine, legal and privilege mail proposed rule amendments would appear
that is sent to or mailed by FL prisoners. to prohibit that, unless it is less than 5
(See: VolA, Iss.5, "FDOC WITH- pages, or someone takes the time to send 5
DRAWS PROPOSED MAIL RULES.") pages per envelope of what may be a 500
That report was correct. However, in a page transcript. The' proposed amendrare occurrence Gust two days after the ments would make no exception to the
last FPLP went to the printer) on Novem- 5 page additional material provision.
ber25, 1998, the FDOC inexplicably reAnother apparent problem that has
proposed amendments to the same rules. existed for years and that is not
They restarted rulemaking to amend these addressed in the November 25th rulemakrules-again.
ing proposal is the FDOC practice of imThese new proposed amendments are mediately returning mail to the sender
notable in that they contain several sig- whenever it contains alleged inadmissinificant provisions than what the de- ble correspondence or other materialspartment initially proposed, and received before the prisoner or sender has an opmuch opposition about, earlier during portunity to appeal the censorship to a
1998. Most significant are the new pro- person other than the person making the
posed changes to the routine mail rules. decision to return the mail. This historical
This new proposal would allow prisoners' .practice that occurs at almost all FL pristo continue receiving postage stamps ons does not comport with the. required
through routine mail. They also would constitutional procedural due process proal,low up to 10 'sheets of blank paper, tections established in Procunier v. Marenvelopes, or greeting cards to be included tinez, 94 S.Ct. 1800 (1974). In that
in each item of mail. These proposed pro~ Supreme Court case three minimum due
visions are good and create a needed stan- process procedural protections were esdard to guide mailroom personnel who'in tablished that must be' followed by
the past have arbitrarily, in cases, refused ,prison officials whenever mail is cento allow the receipt of such material. sored. First, theinmate must be notified of
Those are the positive proposals.
the rejection of a letter sent to or written
The negative new proposals are that by the inmate; second, the author of the
routine mail would only be allowed to letter must be given reasonable opportucontain up to 5 pages (8Ya" x 11 It) of nity to protest the rejection decision; and
additional' written/printed materials.. This third, that objections (appeals) ofthe deciwould included any other type material sion to censor the mail must be referred
besides the actual correspo"dence in the to a perSon other than the original
envelope and include newspaper clip- rejection decision maker.
pings, etc. Also, only 5 photographs per
When mail is immediately returned
envelope would be allowed and counting both the prisoner and sender of the letter
towards the 5 page additional material are prevented from any reasonable opporlimit. These proposed provisions are the tunity to have the rejection decision resame as propose4 in the initial rulemaking viewed by someone other then the original
that was withdrawn. It is now being re- rejector, thus violating the third Martinez
proposed.
due process protection. The department's
The main problem with the "5 "oversight" to address this in these new
pages of additional material" proposed proposed amendments needs
to be
provision is that 'it wjll almost guarantee brought to" the department's attention in
that prisoners will not be able to receive written comments and objections by prislegal materials or documents from family oners. Prisoners filing comments or objecmembers and friends through routine mail.. tions should review Rules 333.006(1)(a)4. and (7)(e), FAC, which

.FDOC MAIL RULES
AMENDMENTS
RE-PROPOSES

a

Page 7

mailrooms are, not following when mail is
immediately returned. A clear provision to
hold such mail until grievances are ex- ,
hausted should be included in any proposed amendments to the routine mail
rules.
Concerning the proposed amendments
to the legal mail rules, the FDOC is
clearly determined to further curtail FL
prisoners access to the courts and their
attorneys. The department has again reo
proposed the same amendment as before
to require indigent prisoners to pay all
legal mail postage costs or have a lien
placed on their account for such costs and
, reduce the account to zero if and when the
indigent prisoner ever receives any money
to satisfy the lien.
This proposed provision must be vehe·
mently objected to in written comments by ,
all prisoners. This is a clear attempted
violation of Bounds v. Smith, 97 S.Ct.
1491, 1497 (1977) (it is indisputable that
States must provide indigent inmates at
State expense with some legal mail
postage): and, Fla. Stat. Section
944.09(1)(0) (FDOC may not adopt r:ule
requiring prisoners to pay any postage
costs that the State is constitutionally reo
quired to pay).
.
Or if the FDOC wishes to maintain
that following Lewis v. Casey, 116 S.Ct.
2174 (1996), that the Bounds provision is
no longer good law (by some twisted reading of Lewis) and that legal postage costs
are no longer constitutionally required to
be .paid by the State, then see Section
944.5 16( I)(g) (FDOC may establish a
limit on inmate accounts and deduct
money exceeding that Iiinit to pay for
costs of mail postage that State is not
constitutionaily required to pay, limiting'
the FDOC's discretion in rulemaking concerning this subject.) This last requires a
minimum amount of money received not
to be taken for any mail postage costs not
constitutionally required to be paid by the
State. The department is ignoring all the
above in these new proposed amendments.
Looking at the privilege mail proposed
amendments, this is mail sent to or received from legislators, government entities, news reporters or ~gencies, the department is' again re-proposing that
such mail be' prohibited from containing
anything except correspondence. This

:1.999 ...AN"~~
STA.TE C~ITOL
I:I.OT~.A..:R..A.LL~
A CALLTO ACTION FOR:
PRISONERS' FAMILY MEMBERSIFRIENDSILOVED
ONES AND ADVOCATES
MARCH 11, 1999 7:00AM TO 7:00PM
This past year, during April, approximately 100 family members, friends and advocates of
Florida's prison population met in Tallahassee during the legislative session to attend a rally
and demonstration project in the rotunda of the state capitol building. Organized by'Florida
Prison Legal Perspecti\'es, and other groups affiliatcd with the Florida Prison Action Network
(FPAN), that evcnt was a great success. There were displays and information booths set up that
examples many of the problems and unaccountable policies of the Florida Department of
Corrections.. Informational flyers and displays exposed how the families. friends and loved
ones of Florida's prisoners have been and continue to be targeted by policies that have serious
financial impact on what are largely low-income people, and that serve in cases to unnecessarily obstruct family and friend relationships. The range of topics covered family visitation to
monopolization and gouging involved in the prison collect telephone situation.
During March 1999 another such capitol rotunda event is going to be held-bigger, better,
and more powerful! YOU are invited and needed to be there, or to support the effort. If you
have a family member or loved one incarcerated in Florida, this is your chance to join with
others to demonstrate to our elected officials in Tallahassee that our voice will be heard. If
you are an advocate of the civil and human rights of the incarccrated, this is your
opportunity to meet with and network with others on the front line in this crucial work. For
prisoners. this is the time that you can stand up and be counted, by encouraging your family
members and friends to attend this event and be your voice. and it is the time that your direct
support is needed through donations.
We can no longer be silent and hope it gets better. or wait for someone else to do
something. Without opposition. there are those in pO\ver who intend to make it much worse.
We all saw the political campaign ads this election based on "getting tougher on
prisoners." It is time to make our voices heard above those who promote "get tough" prison
policies for political gain orjob security platforms. It is time that accountability be demanded
of a prison system concerned only with perpetuating itself at the expense of lost lives and
opportunities to change. It is time to come together and speak out against abuse and corruption
in the system; speak out against the disregard and arbitrary treatment that prisoners' family,
friends and loved ones are increasingly subjected to; and time to speak out against the
double-taxation. gouging and monopolization that the Department of Corrections is
increasingly engaged in.
Alone. not much can be done. That is why we call on YOU to join US to work together
for ALL. Efforts are being taken to arrange car-pools and other transportation for those
wishing to attend this upcoming Tallahassee event. Suggestions for displays and information
~ooths are invited from free citizens and prisoners alike. Those unable to attend can support
this effort by donations, every little bit helps as all the groups involved are non profit and will
.be depending on your support to make this event even more effective. Working together,
change is possible. For more information, contact:

Florida Prison Legal
.'
Perspectives
P.O. Box 660-387
Chuluota FL 32766
407/568-0200
Email: fplp@aol.com

Families with Loved
ones In Prison
710 Flanders Ave.
Daytona Bch. FL 32114
9041254·8453
Email:fiip@afn.org

Florida Institutional
Legal Services
IIIO-C NW 8th Ave
Gainesville, FL 32601
352/955-2260
Email: fils@afn.org

(Continued on page J2)

F.P.L.P. VOLUME 5, ISSUE 1

Page 8

"

NOTABLE CASES
by SherrI Johnson and Brian Morris.
FL Supreme Court Approves Sheley. Limits
Review of Mandamus Denials Concerning
Quasi-Judicial Agency Actions to Certiorari
The. Florida Supreme'Court, prompted by the
First District Coun of Appeal, has issued an opinion
that significantly changes the remedies available to
prisoners seeking judicial review of quasi-judicial
actions taken by the Parole Commission and the
Department ofCorrections. This change is important
and should be understood by every law clerk and
IlI2 se litigator in the system.
In FPLP, VolA, Iss.3, a fairly extensive anicle
entitled "En Ranc First DCA Limits Prisoners' Appeals" was run concerning a case out of the First
DCA: Shelev v. Florida Parole Commission, 703
SO.2d 1202 (Fla. Ist DCA 1997). In that case the
First DCA held that prisoners are not entitled to a
full appeal to the DCA following the denial of a
petition for writ of mandamus in the circuit coun
that concerned a quasi-judicial decision of a state
agency. Quasi-judicial agency decisions are those
that are made by an agency, such as the Parole
Commission or DOC, that are determined during or
following a hearing in which due process is afforded. Examples in the prison context are parole
hearings, disciplinary hearings, CM hearings, etc.
For many years the normal judicial remedy sought
by prisoners to challenge quasi-judicial actions of
the Parole Commission or DOC has been by a
petition for writ of mandamus in the circuit
couns. Following a denial of such petition, histori·cally prisoners had been allowed to proceed with an
appeal to the DCA of the mandamus denial.
However, the First DCA in Shelev disa~
· proved prisoners being aliowed to proceed with
what is termed a "plenary" or "full" appeal in
the DCA. Essentially. the coun held that since the
original hearing of the agency is like a trial and the
petition for mandamus is like an "appeal" of that
trial, then prisoners are not entitled to obtain a
·second appeal" in the DCA. The coun held that
only certiorari review i~ available in the DCA in
such a ease. And, ceniorari review is strictly
limited to review of (I) whether the circuit coun
failed to afford due process of law, or (2) whether
the circuit coun failed to observe the essential requirements of law. The merits of the underlying
cause that initiated the petition for mandamus often
will not even be considered under the ceniorari
review; only whether the circuit coun afforded due·
process and complied .with the essential requirements oflaw in denying the petition for mandamus.
The First DCA in ~ certified connict
with another coun that had held that a full appeal
should be allowed. This resulted in the Florida
Supreme Coon accepting jurisdiction to resolve the
connict, \\'bich it has now done, upholding and
· approving the First DCA's decision. That Court
stated. "[Wle hold that once an inmate has had a full
review on the merits of a Parole Commission order
in the circuit court, he or she is not entitled to a
second plenary appeal of the order in the district
court." See: Shelev y Florida Parole Commission
k1!I, 23 FLW 5556 (Fla. 10/22/98).
IComment: Do not be confused and believe that lliItt
doa not apply to DOC qUlUi-judlcial proceedings just

F.P.L.P. VOLUME 5, ISSUE 1

because §IWa only concerned a parole hearing. FollowIng the above decision by the FL Supreme Court the
Fint DCA .quickly mored to deny several appeals purluant to §hgkx that were n1ed' against the DOC. E.g.:
Spencery. Singletary. DOC.lJ FLW 01403; Rgdgm v.
Singletary, 23 FLW D2404; Hani:! y. S;ngletary.DOC,
23 FLW D2404. As noted in the above mentioned article
In FPLP VoL4, Iss.3, It Is essential that the difference
between seeking review of a quasi-judicial agency action
and seeking to compel performance of a ministerial duty
(that did not involve a quasi-judicial proceeding) be
fully u!'dentood by all Florida prisoner litigants followIng §hgkx, It may be however, that the Fint DCA will
refuse to reeognlze the distinction, and hold that onty
certiorari Is allowed In the DCA even though there was
no underlying qUlUi-judicial proceeding. Since it is felt
that the true pUrJ10se of ~ was to reduce the prisoner case load of tbe Flnt DCA, then this may very well
happen. Regardless, If federal constitutional issues are
raised in every step of tbe state remedies sought, denial
of a petition for certiorari revieW by the DCA will serve
as final slllte exhaustion and allow the federal courts
jurisdiction to again reach the merits of tbe cIlJlmlsl, -sjl,
Error to Deny Writ Without Opportunity
to serve Reply
'The Fifth District Coun of Appeal held. and the
Parole Commission conceded, that prisoner Charles
Minott should not have had his petition for writ of
hall,eas corpus denied before he was given an opportumty to file a reply to the Commission's response.
Citing Bard v Wolson, 687 So.2d 254 (Fla. 1st DCA
1996) (Where response does not contain mere denial
but sets forth matters in the nature of affirmative
defenses or avoidance's, appellant should lIave been
allowed 20 days to serve a reply. If the response had
contained mere denials. no reply would have been
authorized. In that circumstance, the trial court
.would have been required to hold hearing to resolve
factual disputes.), the Coun vacated the order ofthe
circuit court denying Minott's petition and remanded
with instructions for the lower coun to allow Minott
twenty days to liIe a reply to the Parole Commission's
response. See: Mjnott y, State of Florida. et al.. 718
So.2d 381. 23 FLW D2290 (Fla 5th DCA 10/9/98).
(Comment: This Is a common problem. Circuit courts
often will deny habeas and mandamus petitions without
allowing a reply to tbe respondent's response. Although
not cited by the Minott court, Rule 9.100(k), F.R.App,P"
concerning petitions for extraordinary relief of all types,
provides that a petitioner has 20 days in which a reply,
with l! supplemenllli appendix, may be filed following a
-response (containing affirmative defenses or avoidance)
toa sho,,: cause order hy the opposing party. -sjl
Prison Release Re-orrender Act'Not Ex Post Facto
Prisoner Joe Plain was released from prison after
serving time .on a prior charge before the Prison Release Re-offender Act, section 775.082(8)(a), F.S.
(1997), became effective on May 30, 1997. The Act
provides for greater penalties for new offenses com:
milled within three years of being released from a
Florida correctional facility (Section 775.082(8)(a)I.).
Plain picked up new charges on August 4, 1997,
for burglary of a dwelling wlballery and aggravated
battery and had the Act applied to his sentencing
because. he had committed a felony within three years
of his prior prison release.

Plain appealed, arguing that 'the Act, as applied to
him, because his prior sentence was completed before the
Act became effective. was an unconstitutional ex post
facto application ofthe law. The 4th DCA disagreed.
The Court determined that the "Act increases the
penalty for a crime committed after the Act, based on a
conviction which occurred prior to the Act." And that
"lilt is no different than a prisoner receiving a stiffer
sentence under a habitual offender law for a crime committe~ ~fter t~e. passage of the law, where the underlying
convictions glvmg the defendant habitual offender status
occurred. prior to the passage ofthe law. (Cites omitted)."
Plain's conviction and sentence was AFFIRMED. See:
Plain v. State, _ SO.2d 23 FLW 02309 (Fla. 4th DCA
10/14/98).

Mandamus Will Not Lie to Compel Private Attorney
. to Furnish Court Documents Free of Charge
Prisoner Greg Donahue filed a petition for writ of
mandamus to try to get the coun to compel his former
private attorney to furnish him, ~ ofcbarge, copies of
legal documents that the attorney had compiled during
the apparent course of representing Donahue on a criminal case. The circuit coun denied the petition and Donahue appealed.
The DCA correctly noled that the the tiles of a
private attorney, except for documents given to the attorney by the client to hold, are the pro~rty of the attorney.
Pleadings, investigation repons, .subpoena copies,
repons, and other case preparation documents are property of the attomey, not the client.
Second, the DCA noted that even if Donahue's
attorney had been appointed or a public defender that
Donahue still would not have been entitled to the'documents free of charge citing Woodson v Durocher 588
SO.2d 644 (Fla. 5th DCA 1991), ~ 598 So.2d 79
(Fla. 1992). The only exception would be documents like
trial transcripts that were paid for at public expense.
.Third, the DCA, again correctly, noted that
mandamus is not the proper remedy to compel a private
citizen, like a private attorney, to perform a "ministerial
duty· required by law. Only government officials have
"ministerial duties· created by a law or rule.
, Forth, the DCA correctly noted that even if
Donahue could require the production of "records·
without payment (as if from a public defender, or other
government official), it would only be for plenary (direct)
appeals, not for post-conviction proceedings. The DCA
CIted numerous cases in support of its conclusion that
Donahue's petition was properly denied. See: Donahue v.
Vaughn,_So.2d---" 23 FLW D2369 (Fla. 5th DCA
10/23/98).
(Comment: If Doaahue hid did even a minimal amouat of
research Into this matter before IIdgadag It he would have
known that not only was maadamus the tollllly IlDpnlper
remedy, but that it is well-settled la Florida that you either
pay for such cnples or you don't get them. What a wlste or
time and energy. This Is a pt'rfect example of tbe need to
thoroughly research each and every Issue and remedy
sought BEFORE litigation. -sjl
Transcripts of Collateral ProceedIngs
Free to Indigent Defendants
In this ease, Joseph Colonel successfully'argued that
he has a constiiutional right to a free transcript of the
.. evidentiary hearing cOnducted with respect to his Rule
3.850 motion and that, under the circumstances of this

P age 9

p.1lticuJar c:ase, Miami.Dade County is responsible
for paying the COIlS ofthose trunseriplS.
The Third DCA found that ·mlle U.S. Supreme
CClun,inQriffiny lJIingls,351 U.S. 12. 17·18(1956),
lIeld that II State may nClt discrimiftllte alll1inst convicted
defendllnlS because of their poverl)' by denying an
indigenl mppellanl a free lranscript in lIis direcl
IIJlpeol." The Third DCA also found thol. approxi.
mutely ten years' later, the U.S. Supreme Court IIcld,
"in Long y Districi Coun oflmm. 385 U.S. 192,193
(1966), that un indigentllppellunt was entitled to a free
U'llIlSCript in II Stllte postconvielion proceeding.· Find·
ing thot un indigent defendunt hu a constitutiClnul right
to have court COlt, including COIlS of transtriplS paid
fClr by the government. tile Third DCA held thot
"Colonel is entitled to a free transcripl ofthe hearing on
lIis 3.850' mGlion.· See: Colpnel y SUlII:, 23 FLW
D2593 (FIll. 3d DCA, 11.25.98).
COUDleI'. Reference to SlIItutory Mallmum Wltll.
out Refel"ellce to Guidelines Undercuts Volunlllrl·
neuofPlea
After entering lIis plea lind being sentenced to II
seventeen year prison lerm to be followed by II tllree
year period of probation, Rodolfo Delacruz sougllt
pClSlCOnviction relief under Floridll Rule of Criminal
Procedure 3.850. Delacruz argued. among otllerthings,
that his plea was nClt voluntarily entered because lIis
trial attomey hlld misinformed him with regard to tile
penalty he fllCed if he-proceeded to trial and WIIS found
guilty. DelllCCUZ Clllimed that his lltlOmey told him he
could receive a IWenty·nve to tIIirl)' year term of im·
prisOnment if found guilty of both DUI munslaughter
und ICIlving the scene of an accidenl involving sc:riClUS
injury Clr deatll. II is lI'IIC tIIat for these two second
degree fdonies, absent the sentencing guidelines, tile
statulofy maximum penlIhy that Delacruz could have
received is thirty years imprisClnment. However.
"lICXOrding to the guidelines DelllCCUZ could receive
no mare than nineteen years' imprisonment absent a
valid depanure sentence.· Signincandy. in his Rule
3.850 mCllin. Delacruz demonstrated prejudice by
claiming that he would nClI have entered the plea hlld
his atlOmey properly lIdvised him witll respect to tile
maximum potential penalty pursuuntto the guidelines.
When tile trial court denied relief without altllching
records to refute tIIis involunlalY plCll c111im, tile Second
DCA expressly noted that "[a) reference by counsc:llo
the Statulllry maximum witllout un explanation of tile
guidelines painlS un unrealislic picture of the true
exposure a defendunt confronlS.· REVERSED AND
REMANDED. See:
Delacrnu SIllte,23 FLW D2S11 (Fla. 2d DCA 11·13·
98)
AEDPA One Year Filing L1mllallon Runs From
Effective Date of Ad For Both 42 U,S.C, Sec. 2254
and 2255
FlClrida prisoner Jessie Wilcox filed a petition
for writ of hllbeu corpus on June 24, 1996, .in the
federal court challenging is~ ues that he hlld rtlised in a
direct appeal in the Slate court and that became nnal
when tile direcl appeal was denied und a mandate
issued on July 2, 1992. The federol distriel coun dismissed Wilcox's 42 U.S.C. Sec. 2254 habeu petiliCln
I1S time-barred under tile Anti-Terrorism and Effective
DelltIt Penalty Ael of 1996 (AEDPA) one-year provision in 28 U.S.C. Sec. 2244(d). that became effCClive
April 24, 1996. The distriel court reasoned that al·
though Wilcox filed his petiliCln two mClnths after tile
AEDPA's effective date, thot Wilcox's petition was
time-barred under Sec. 2244(dXIXA) because it was
not filed witllin one year of the slllle court of appeal
denying his direCI appeal back in 1992.

F.P.L.P. VOLUME 5, ISSUE 1

Wilcox appealed to the II th Circuit Court of Appeal
arguing thot the distriel court erred in reUOllClively
applying the AEDPA one-year filing provision to his
petitiCln, w1tere tile AEDPA was not enacted until mClre
tIIan five YCllrs after his convielion became final in the
stal~ coun. The 11th circuit reversed the district court's
dismissal and held thot, I1S previClusly noted with approval in a similar case involving a federal prisoner's
Sec. 2255 habeas petition. Goodman v US, 151 F.3d
1335 (II th Cir. 1998), thot the one-year filing limitation
in the AEDPA "d(oes) not begin to run againsl uny state
prisoner prior to the statute's date ofenaClmenl•
The IIth circuit IIJlpeol court REVERSED and REMANDED Wilcox's case to tile distriel court for fur·
ther proceedings. See: Wilcox y, FIB Depamnent of
Cprreclipns
F.3d __ , 12 FLW Fed. 029 (11th
Cir. 10/29/98).
Not Double Jeopardy to Subject Prisoner to Both
CrimInal Charges And Disciplinary Action
On October 29, 1998. tile federal 1It11 Circuit
Coun of Appeal determined that it is not dCluble jeopardy when prisoners are subjected to both criminal
cllarges and in·prison disciplinary action for tile some
incident.
During October 1995 there WIIS a riot at Federal
Correctional Institution (FCI) Talilldega, AL. Between
200 and 300 prisoners participated in the riot. The
resulling damage was eslimated at 53 million. Follow·
ing tile riot and an investigatiGn, severtll prisoners
were charged witll in·prison discipliftllry vioilltions of
the rules and regulations during the riot. They were
subjeCled to disciplinary transfers, confinement, loss of
good time. temporary loss of privileges und visitation
after being found guilty in prison discipliftllry proceed·
ings.
Following the disciplinary action. the prisoners also were 'charged in criminal indiClments returned
by a grand jury. The prisoners pled nClt guilty, and
moved to dismiss tile criminal charges on double jeopardy grounds as tIIey hlld a1relldy been subjeCled 10
in-prison disciplinary action for tile same conduct. The
distriel coun, accepting tile magistrate's recommenda·
tion that the mCltiCln to dismiss be denied, ovemlled tile
double jeopardy objCClions and denied the motion to
dismiss. The criminal cases went to trial, where the
prisoners were shackled in the courtroom after tile
district coun found that they had histories of violent
behavior and in·prison discipliftllry problems.
At tile trial held in 1996 the prisoners were found
guilty on a variety of charges and sentencing followed.
The prisoners appealed on several grounds, of wllich
tile II til Circuit Court of Appeals only considered
two: the double jeopardy c111im und whetller tile
pris~)fters were denied a fair trial as a resull of being
sllackled in the courtroom.
In a lengtlly opinion, tile 11th Circuit deter·
mined, essentially, that in-prisCln disciplinary sanc·
tions are "civil" in nature and do not constitute criminal
punisllment for double jeopardy purposes. Therefore,
the Court "decline(d) to c1usil)' tile regulations
[disciplinary) as 'criminal." The Court affirmed the
district court's denial of the mCltion to dismiss on the
dCluble jeopardy grounds.
Next the Court examined and determined tIIat the
district court did not abuse its discretion in requiring
tile prisoners to be shackled in tile courtroom, and thot
eve'! if discretion hlld been abused thai lhe prisoners
.hlld failed to sllow uny prejudice as a result. The Court
noted that the district coun look care thot tile jury never
saw the shackles. See: United States of America v
Mayes Harris, et ai, __ F.3d __ , 12 FLW Fed.
C231 (11th Cir. 10/29/98).
PLRA Provision RequIres Admlnlstrollve ElbaUl-

lion of Remedies Even If Futfie or Inadequate
Michsel Alexunder, a federal prisoner housed in
Floricb, med suit against prison officiIJIs claiming thol
tIIeir enforcement of the Ensign Amendment that prohibilS federal prisoners from receiving sexually
explicit materials violated lIis First Amendment
rights. AleXl1llder sought an injunetiCln. declaratory
relief, und monetary damages. He did not exhaust the
Bureau of Prisons' (BOP) griCVl\llce process claiming
tile same relief before proceeding to federal court. The
Middle Distriel Court ofFlorida dismissed A1exandCl's
action for failure to exhaust lldministrati\'C remedies as
required by the Prison Litigation Reform Act of 1995
(PLRA), 42 U.S.C. Sec. 1997e(a).
AleXl1llder appealed the district court's dismissal of
his aeliCln to tile II th Circuil Coun of Appeals raising
two issues: (I) tllat section 1997e(a) only applies III
stale prisoners because it addressed only section 1983
llclions involving state action; and, (2) tIIlll the BOP
administrative remedies are futile und inlldequate because tile BOP has no authority to award monetary
damllges or declare tile Ensign Amendment unconstitu·
lional.
Addressing AleXl1llder's nrst issue. the \I til Cir·
cuit determined tIIat sCClion 1997e(a) expressly provides that its exhaustion requirement applies to actions
brought "under section 1983 . . . or any otller Federal
hiw," and I1S such section 1997e(a) applies to federal
prisoners' !fum1actions (Ille federal prisoner equivalent to state prisoners' seeliGn 1983 actiClns). The Coun
also found thllt legislative hislofy "makes clear that
Congress intended PLRA section '997e(a) to apply to
both federal und state prisoners."
Turning to Alexander's second issue on appeal,
lhat exhausting BOP administrative remedies would
have been futile and inadequate in his c:ase, tile Court
held, in effect, thllt WIIS immaterial.
Examining priClr case law, the Court noted that
before the PLRA WlIS adopted it had been established
in some instllllees that where administrative exhaustion
of remedies would be futile or inadequate that such
was not necessary in eitller section 1983 or Bivens
llctions, especially where tile only remedy sought WIIS
monClaty damages. But, tile Coun noted that in ~
I:I!lM. 40 F.3d 347 (I I til Cir. 1994), und ~
Sandoval y Honsted, 35 F.3d 521 (IItII Cir. 1994),
where botll monelalY damages and injunctive relief
were sought, then lldminislJ1ltive exhaustiCln WIIS required.
.
The Coun then went on to note and claril)' thot uny
pre·PLRA ·judicially recognized futility and inlldequacy exceptions do not survive tile new mundatory
exhaustion requiremenlS ofthe PLRA."
,
The Court delermined tIIat the only remaining
exception allowing non-exhausliCln of administrative
remedies is where Ihere arc no adminislnllive remedies
availllble 10 exhaust (apparenlly some states do not
have grievance procedures). Wllere there is un adminis·
tralive remedy system in place, ho\vever, tile Court held
tIIat those remedies must be exhausled. even if futile
and inadequate or ·even if the relief offered bY thot
program does not appear to be 'plain, speedy. and
effCClive,'" it still must be exhausted.
The II th Circuit agreed witll the district coon, und
essentially held tIIat even ifadministrative remedies do
nOI provide monelalY or injunctive relief or declllflllOry
relief, still, under tile PLRA. it is necesSaIy tlI8l' such
claims be presented adminisuatively before those
claims con be raised in federal coun. The dismissal of
Alexander's complaint for failure to exhaust admin·
istrative remedies was AFfIRMED. See: Alexander v
Hm. 12 FLW Fed. C235 (11th Cir. IIISJ98), 159
F.3d 1321.
(Commmr: 1bJI case is IMPORTANT and needs to be
read and undfntaod by tvf/)' prisco Iidplllr• .,jll

Page 10

Piccirillo & Son, Inc.·
Providing Expert Witness and Criminal Justice Consultant Services
With Over 25 Years o/Experience in Post-Sentencing, Post-Conviction Relief.. and Corrections Related Matters

Post Office Box 10062, Tallahassee, Florida 32302
FREE INITIAL CONSULTATION
Inmates May Call Collect or Write to Arrange for a, Legal Phone Call

New Tallahassee, Florida Executive Office Number:

(850) 402-0002
Executive Clemency - Work Release - Institutional Transfers
Gain Time Correction and Restoration - Disciplinary and Disciplinary Appeals
Parole and Parole Revocation - Resolution of Detainers - Interstate Compact

Services Provided Through Referral to Associated Counsel
Direct Criminal Appeals -. Belated Appeals .~ Post-Conviction Relief Proceedings
State and Federal Habeas Corpus Proceedings
.
ABOUT GARY "AL" PICCIRILLO

Gary "AI" Piccirillo has served over 14 years in such state prisons as Sing Sing and Raiford. While incarcerated•.
he became a popular jail house lawyer successfully advocating the rights of his fellow prisoners. See Department
of Corrections v. Piccirillo, 474 So.2d 199 (Fla. lSI DCA 1985); Department of Corrections v. Adams &
Piccirillo. 458 So.2d 354 (Fla. lSI DCA 1984); Piccirillo v. Wainwright, 382 So.2d 743 (Fla. 1st DCA 1980), and
1h
Adams & Piccirillo v. James,784 F.2d 1077(11
Cir. 1985).,
.
.
Following ·his release, from the Florida State prison system in 1983 and after years of education ·and hard work.
his criminal lifestyle has changed. He is now the President of Piccirillo & Son, Inc., the Editor and Publisher of
The Florida Post-Conviction Relief Update, Co-Author of Florida Post-Sentencing. Practice and Procedure,
Capital Legal Publishing (1995) and Florida Department of Corrections Law Clerk Training Manual (1996). He
has writtenarticles relating to access to courts and post-conviction relief in such legal publications as the Florida.
Defender and the Informant. He has lectured in Keiser College on the subjects of post-conviction relief and the
history of guideline sentencing in Florida.
He has served as an expert witness and consultant for the Florida Department of Corrections in matters relating to
access to courts and post-conviction relief, and has served as a Qualified Representative before the Department of ..
Administration, Division of Administrative Hearings successfully representing prisoners in administrative
hearings. He has served as an Executive Director for a residential transitional inmate release programs with grants
awarded by the Governor's Office of Criminal Justice Services for Ohio, and the United States Department of .
Justice. He has over 25 years of experience in post-conviction relief, criminal appeals, and corrections related
matters. He has testified before the United States District Court, Middle District of Florida as an expert on access
to the courts and such related matters as post-:conviction relief in the civil rights case of Hooks v. Singletary, 175.
F.2d 1433 (11 th • ~ir: 1985).
.
': While \\lith the law firm of Daley & Associates, he coordinated the litigation in such cases as State 1I. LeroWe.689
So.2d 235 (Fla. 1996); Maddry v. State, 702 So.2d .1314 (Fla. 1997), and Guisasola v. State, 667 So.2d 248 (Fla.
DCA 1995).

r'

Mr. Piccirillo has been recently retained to work with the law firms of Mark Lane out of Washington, D.C., and
. William Sheppard, out of Jacksonville, Florida to provide services as' a expert consultant in matters .relating to
post-conviction relief in Florida.
'

F.P.L.P. VOLUME 5, ISSUE 1

Page 11

(Continuedfrom page 8)

would mean, if adopted, that a govern-I

ment office or official would have their
privilege mail returned to them if it contained a booklet, or fonn, or other written!
printed material.
The same would be true for news
reporters' or organizations; their privilege
correspondence would be returned to
them (rejected) if it contained clippings
they wished to discuss with the prisoner,
or drafts of potential articles the reporter
or journalist might be considering that
are confidential. This proposed rule
amendment has no purpose except to further cut FL prisoners off from the outside
world and should be objected to in written
comments to this proposal.
The November 25th notice was a Rule
Development notice, the first stage in the
rulemaking process. The department will
be required to post a (final) Rulemaking
Notice on these proposed amendments
before adoption. That second notice can
be expected to be posied during January
or so.
At that point FL prisoners will have a
2 I day opportunity to submit comments
and objections to the FDOC central office
concerning these proposed mail rule
amendments. All prisoners are encouraged to do so, and have your family and
friends on the outside send comments
and objections, or if you have an attor- .
ney, ask them to file objections.
As many FL prisoners filed comments
and objections the first time around on
some of these same proposed amendments, and forced the FDOC to reconsider same and make changes, it needs to
be done again. Encourage and assist others in filing comments and objections.
While some of these new. proposals are
good; some are not and will seriously
affect FL prisoners and their correspondents if not challenged and defeated or
modified-again.
.
The FPLP staff will be filing objections
to the proposed provisions noted in this
art;cle and working to organize outside
opposition. Hope~lIy, it will be .possible
for our staff to request and attend a public
hearing in opposition to these proposed
provisions, It is time that we all must
work together again, so get those pens
warmed up. The name and address at the
central office of who to address your

comments and objec~ions to is: Perri
Dale, Attorney, Dept. of Carr., 260/
Blair Stone Rd, Tallahassee FL 323992500,.

POLICY RESCINDED
In November '98 the FPLP staff was
notified that Sumter CI had· implemented
a new policy prohibiting prisoners on
Close Management (CM) status· from
receiving postage stamps through the
mail. The staff contacted Florida
Institution Legal Service's Executive Director, Glen M. Boecher, Esq., about this,
who in tum contacted Sumter CI
officials. It was subsequently determined that the policy exceeded Chapter
33 rules and the policy was rescinded.
Prisoners on CM status have the same.
mail privileges as open population and
can receive postage stamps from family and friends for correspondence
purposes per Chapter 33 rules. The staff
thanks those who informed us about the
"policy," and Mr. Boecher who assisted
in correcti~g the problem, •
NEWS BRIEF

In 1998 both Kentucky and Tennessee
enacted legislation that allows prisoners
in those states who are sentenced to death
to elect lethal injection over electrocution, and provides that lethal injection
will be the sole means of execution for
crimes committed after specified dates.
Legislative bills fi'led in the FL legislature
to enact a similar measure died without
being passed. This leaves Florida, Georgia, Alabama', and Nebraska as the only
states with electrocution as the sole
method ofexecution.•

AROUND THE NATION
Alabama- On Aug. 10 '98 a federal district court
in AL held that prison officials in that state' had
violated prisoners' constitutional rights prohibiting cruel and unusual punishment by chaining them
to a ~'hitching post" for refusing to work or punishment. The court found that prison officials had left
prisoners chained to th'e rail all day-in cases with
their hands above their heads, had refused to provide them water, refused to allow them tQ use the
restroom, and had chained prisoners with valid
medical problems to the rail because they were
unable to work. The court found the prison officials'
use of the hit~hing rails to be malicious and sadis-

F.P.L.P. VOLUME 5, ISSUE1 .

tic. See: Austin y. Hopner, 15 F.Supp. \2\0
(M.D.Ala 1998).
Arizona- During Nov. '98, Maricopa Co. Sheriff
Joe Arpaio opened the nation's first tent jail for
juveniles. Prisoners as young as 14 and sentenced
as adults for up to one year in the countyjail will be
housed in the tents and fed spoilt sandwich meats,
according to Arpaio. The U.S. Justice Dept sued
Arpaio in 1997 over excessive use of force in his
county jail. That case was settled when Arpaio
agreed to stop having prisoners hog-tied. Prisoners
have had to file over 800 lawsuits against Arpaio.
-During June '98, an unidentified transsexual prisoner filed charges against Maricopa Co.
jail guard George' Back, alleging that Back had
forced him to perform oral sex.in a cell. Back
resigned after the allegation, with the jail claiming
the sex was consensual.
-On July 2 '98, the federal 9th Cir. Court of
Appeals, ruling on a case out of Maricopa Co.,
AZ, held that the county prison's regulations
banning sexually explicit materials/publications
that depict "frontal nudity" were over·broad and
unconstitutional. See: Mauro v. AmaiQ. 147 F.3d
1137 (9th Cir. 1998),
California- In July '98 Ronnie Hawkins was ordered shocked by a 50,000 volt stun belt by Long
Beach Municipal Judge Joan Camparet-Cassani for
interrupting her during a court hearing. Several
attorneys filed complaints about the incident and
an investigation was started by the CA Judicial
Commission. Hawkins, represented by an attorney,
has filed suit over the incident.
-The Los Angeles Times reported in early Oct.
'98 that CNs prisons system is the only system in
the U.S. that uses deadly force to break up fights
between prisoners. Since late '94, 12 prisoners have
been shot and killed and 32 wounded by prison
guards armed with assault rines. Lawsuits over the
deaths have so far cost CA $6 million,
-Dn Sept. I '98, the CA DOC banned smoking and tobacco possession at 12 prison reception
centers. Gov. Pete Wilson ordered the ban as the
first step in totally banning smoking in CA prisons.
The ban will reduce prison health care costs and
arson, claims Wilson.
Dist. of Columbla- On Sept. IS '98. the federal
appeal court for the Dist. of Columbia overturned a
district court ruling that had held that the "Ensign
Amendment" that had banned federal prisoners'
from receiving publications like Playboy and Penthouse was unconstitutional. The appeal court held
that the lower court should have focused on whether
the ban had a rational goal, not on whether it'
violated the First Amendment. The appeal court
'noted that the restrictions only extended to pictorial
materials. The prisoner and publisher plaintiffs
have failed to be discouraged by the appeal court
reversal and are proceeding with a separate challenge arguing the law is vague. That challenge will
go back to the lower court. Until the issue ,is decided, the Bureau of Prisons has said it will not
enforce the ban, See: Amatel v. Reno, 156 F.3d 192
(D.C, Cir. 1998), overturning 975 F.Supp. 365 (DC
D.C, (997).
Florida. A couple formerly from Pinellas-Pas~o
Counties in FL, Mindy and Joe Meager, filed suit

Page 12

,n 0« '91 BgaiIlSl former 01. In\"CSllpl.Or of those
countIes' Slate Anome) Office, Aluanda Murphy,
U)lR& to negotJalc. light srnltn« In exchange (Of
"11h lhe \11ft The couple ...as arrested on druB
dI-JCS In 1996 for p,cscnpllon pIIln·loallm; and sub{Of

$a

$C.Qllmll) offcmi. "dell" b) MUI'phy, "00 1qKlf\'

ally had powcTful mflucnec "'lUi the Stale
Allomc), If Mmd) Meagher ,,"'Culd consent 10 SC:Il
instead of corum!mg. the couple $d Murph) up In a

motel room, "'1m 1M husband busting

In

WIth a Video

C:tmrnl alkr Murph) was stripped 10 his undCr\\'ClU
, lind lryinglo lnlo~icalc the wife \\'llh alcohol. Murphy
allegedly threatened 10 kill the husband ~bolll lhe
\Idco tape. bUI It "Ils taken 10 aUlhOlities by thc
) couple's aulImC) Murph) was chugcd "111'1 laking
unl.... ful compensatIon and 1M ""'I) '98 pled no con·

I

lest and ....lIS sentenced to 110.'0 )'Un proballon The
couple. ,,1'10 110\\ 1I,'c out of stile. elaim In thell
l....."ull thll l:\al though tht)- I'll'" onl) gJ\en their
~ phone nllmm to aulhonlll:S, and keep changing
the unlined number, Ihq 110\'0 arc receiving nlghtl)
h.anrss:lng phone calls aboul the: lncldall rrom an
unllXnllfied pason
-lbc Banr:ml Women's Clement)' Proj~t shut
dovon Ike Jist ror lack or rundlng. lc:a\1ng nC':art)
100 clcmmC} ~ unrC'$Ol~cd, offiCials said ThC'
projn:t w:Ili designed to help get reduced sentences or
IcleflSC' rrom prison (or women \\110 had killed men
\\00 had Ibustd them Btrore clOSing down, Ihe plOJcct aUlsted 17 women prisoners tn betng lelellSetl

Loulsilna- A senlcmel1t was reBehed m Sept '98 that
\Ioill end the (ederal coull'S o\erslght o( the stale
penllCnll8r) at Angoll The agreemenl is sdIeduied
to be: srlfiCd In Feb '98 and \IoIU end Img31ion gom8
back 10 1911
-A U.S JustiCC' DC'p.utmenl Itpon rdcascd In
July '91 provIded details o( inhumane li"m! CQIldl110m and ph)TleaJ abuSC' b) pnson guards IpUlSI
JlI\'C'llllcs III !he prl\-.tel)-optBtcd TlllIulab COlfeetiOlUl Faclllt) (or YOIlth m Tullulah. lA The: m\·dll·
ptlOfi round that the rood being (cd Ihe JU\'emlcs \lollS
not adeqllate to momtom health, that thelt WIIS nOI
enough clothes 01 shoes pro\ldcd, that educallOfial
PfOIIImS were \'CI) poor, and that C"\en though mOft
than one-forth ohhc JU\'cmlC5 welc documented lIS
menially ill or rC'1arded, there WlIS almost no ps)'chiollie ClUe being provided.
Additionally, the in\·CStlgllion round that
physical beatmgs b) piison gulUds were IOUllne.
\Iolth almost C"\'el)' Ju\'emle lit Ihc raeilit) haVing
pcrrotated C':udrums rlOm seHre beatings. Follo\loIn. the JlI\ent1c Jw.tiee ProJCet o(L.A filing a laWSUit
Jbout!he condl1lOlls and the: JlI~llce Dept. in\dup,
tlOll. !he SWC' tool.: conl1Ol or !he racdlt) (10m the
pm~ tomp3ll). In Dcccmba II was announced that
Aorldl bued Correcllonal Servlees COrponlllOn
(CSC) \10'111 w:e o\a the racillt) CSC promlscs 10
ckacase the \·ioIatce, add eduaot)oo.al programs, and
lInpfO"C' the mental and medical c:arc at 1M (<\CIIII)

Ntw 'limpshlrt_ .\ Judge (ound t\lo'O st;;ue laws that
boned pnsooers (rom voting 10 be unconslllulional
The ACLU ltllgated the C4$C ror NH prisonel David
Fischer, woo ....lIS allo\loed to vOle In the Nove:mber
c1wiOlls by absentee ballot [Only fi\'e states allow
prisoners to vote, the)' ale' ME, MI\, NH, Ul', and
VT -cd]
NtM Jrru)· On Jul) 21, '9&, I (ederal distnel coun
In NJ rulrd that I lcglslamrl) tTeatrd state ban

F.P.L.P. VOLUME 5, ISSUE 1

aplllS! sexuall) c-1[phell mal.al.als sent 10 Impnsoned sex offenders was a uolation o((nx spcC'Ch
nghts The court lhoroughl) cxarmnrd the dl(_
ference !hat IS OVocd pnson officnl1s. but
oommncd ,n thiS case that the
did not
erute: tl'le ban. the IC'JlSI.tul"C did. and C"\ldencc:
showed that such matenall$ used m cases to tltot
sex offenders. The court Issued a permanent IIIJunellOll .g'lnst the ban and the state llItome)' hIlS
appeBled Sec Walerman y. Vel!Cra. 12
FSupp 2d J64 and 31& (0 NJ 199&)

ocx:

Nt" ,\Inieo- A rederal Judge 10 NM dctcrmll1ed on Jul) 2, '98, \1\01 a COtl"Ccuonal
offiecr. Dann) TOftel'. "ho "or~cd ror pn..tepIlSon cornpan) Coneetrons Corporahon or
AmCllea. was a "nate attar" bUI not a stale
emplo)'tt Immune ([om eompensalOl') Md pumtl\e damages In a e"ll nghts SUit filed b) N'\'
remale pnsona Tan)'ll GllOn Gtroll alleges th~
Torret C'nte:red hcr cell on Ma) 26. '94. 1lI the
NM Women's Coneeuonal Faelhl) m Grants,
NM, and rotcibl) raped her Tomz' has admitted
the tapC' 1I0wc\a. Ihe court also hrld that neither
CCA not the: warden orw rllCihl) \lotTe liable m
the sun and dlsmtssed them (rom the case 1:\1denee tn the cllSe sho.... ed numerous mCldents or
sexual Impropriet) had oceurred at the same
prison be:t"eC'n male gUlllds and (emale prisoners
both before and aller Tan)lI Gllon was raped
See Grron y. CCA, 1'1 F SUPI' 2d 1245 and 1252
(DNM 1999)
OhIo- During mid-Dee '98, parole: offiCials
.grccd to re-releasc American Indian and pilson
aeU\lSl Tlmoth) "Lutle Roek w Reed after he had
been lC'1wned to aU rrom N~1 Reed..... 1Io IS hal(
La1:ota SIottt. an4 \10110 stnC'd 10 )TS. In all
prisons. Oed ~ole In OH In I99J \Iohcn he:
dllmcd that 011 offICials thrulmcd to pUI him
boek tn prison rOf Speal.lOg out about pnson
abuKS Reed WllS especll\lIy critlcBl orthc: AmCIIcan COfreCllon:tl AsSQCuitlOn and !he role: It play'S
m "sclltng aetredltalJon" to statc pilson S)'Stc:ms
Rccd \lollS Inested III NM in 1996, bUI the NM
stnte courts rerused to turn him over to OIl ror
l:xtmdilion. Thc U.S Suprtrnc COllrt o\'efrulcd
the NM eouns and Reed had been returned to Oli
on Dee 2nd. No\lo thai 011 has relellSCd R~d. he
SB)S he \10111 rdumc pursuing deglccs in Amer
Indian ISSUes and tumlnal JUStice: 10 CinCinnati
lind feturn to NM I ) an lndlall ad\OCIte
OUlhom.. - Dunng No\ '9g (arml) mcmbcn
and rnends or OK pnsontn e1almed th:t1 a IIC\O
OK
b311 on plCUcc:s to pnsoocrs and high
c:oll~1 telephone rllteS arc designed to souge
rnonq out or those \10110 ha\'C' I kJ\'ed one 10

ocx:

pn~

l'tnns)lvllnil- The redCTIII Jrd CU'CUlt COUll of
Appeals ruled on Aug 25. '98, thaI PA prison
offieials muSt Slap readlOg the legal mall or
eondemnedjournBll1l Mumio ,\bu-Jamal and thaI
they cannot enforce a rule prohibitmg him (rom
writing proressionally 01 conducting a bUSiness
by sueh "Titing while on death row Abu-Jamal iJ
on the PA duth row ror the alleged killing o( II
PA pollee: officer In 19&1 The: court llOIcd thlt
Abu-Jamal is a prollfie "flla \10110 has had 1r1l-

e1es appear 10 suclt noted pubhcauOl1$ IS the: Yak
lAw JOll.mDl and 1M /1'0110/1 Sec Abu-Jamal ).
Prjce el a1. 154 F.3d \28 (Jrd Cir
OnOet
29. '9&, the PA S Ct upheld Abu-Jamal's 19B2

199',

eOO\'IC1>On ..nth hiS altornc) pnmilSlO& 10 appeal 10
the (ederal courts
-Famtl) members orPA P"SOOe:tS Ire ealltng (ot
llIl orgllr1lzcd bo)'eon o( all 1.277 prISoner tdepllOnes III PA's H pmons (or the enllle month or
May '99. The boycott IS being called to plOtts! the
exccsswe tdephone ratC5 o( PA prisons In 1997
alone, the PA DOC gouged o\'er 56 million in
kiekhaeks rrom liS telephone contraet with AT&T
rrom ptlsoncrs ramlltes and fnendii. More mro r 0
Bo~ 4N.lhlJTlS\llle PA 16038

.

Tuu· AlIOIne) General Dan Morales, "110 IS leaymg that offite aller 8 )ears, slaled the stile's
clement} program muSt be: made more open to the
public and lIlal officials na:d to SWd) TllCial bw In
dca1It Sl:ntmteS 10 TX. W,!h 446 pcvple on the TX
dC'al1t lOW. J2% art \Iohlle, romp:md 10 6r/. or the
Slate population, 46% arc black., 12% o( the
state's POPUlation, IIId 20% lUe UlSplllle, 26% o(
the stale population
Utllh- On Aplll 29. '98. !he UT txlC stilled a e1ass
lIellon laWSUit broughl by UT plisoners agamst a
policy banmng prisonelS rrom ~ordenng. reec:lving.
01 possess 109" [lIl)' \IoTlIten 01 printC'd maltflals thai
eontaln nudity or plUdal nudlt)
The UT IXlC
agrced to "Ithdra.... the poUe) and pny the prisonen'
IIUornc)', IJrlall IJornard, 515,000 10 anomey (CCS
This is an unpubllshed case I'crry)' MeCpI!Cl. US
OC Ulah, Case No 97-eV-0475C
Virginil- Duling mld·Dec. '98, SenIOr Warden
Paui LeIgh orthe Fluvanna COfTCCIlonaJ Centcr, the
IIlf&C'SI women's pnson 10 VA. re(used 10 en(om: a
VA maseanr and other eosmetIcs. Wankn Leigh
swed. "IJust don't ~ a sc:eunl) issue" I

010 YOU KNOW?
Currtntl)', more than 1.8 mHiion indhidwlis
lire ineurec:rnted in adult com:elional rueilities in
the United Silltes and lit lettst 100,000 juveniles nre inCltfeemted,
According 10 recent U.S. Dcpal1mC'llI or
Juslicc statistics. natIonwide, more than 70%
o( people entering State correctional racilities
have nOI completed high school, lUld -t6'r. ha\'C'
had no high sehool edueation at all.
,\ 1997 stud) b) the COIteI' on Crime, Communities lind Culture (ound that or the estimaled
9~. or oITml!crs .... 00 IfC C'\"Cnluall)' l"Cle.lSC'd
back inlo the communit)'. those who receive an
education \Iohile incarcerated hlwe a significanl1)
bC'ltC'f mle or emp10)mml-bd.wc~n60 and 75%thlUl those who do no! panicipate in edue1ltion
programs. The stud) also reponed that inmates
with at lettst {\\o )'ears or po5t-secondlll)'
education have a 10% fe-arresl mte, comp:1rCd 10
a nlltionalre-arrcSI rale of approximately 6O'Y..I

EDUCATION IS THE
KEY TO FREEDOM

Get II AnywBy You

Can

Page 13

LITERATURE REVIEW
ramify. Friends, Loved Olles
OUTSlDERS LOOKING IN: I-Iow To
Krep From Going Craz)' When Someone
You Love Goes

To Jail
by Toni D. Weymouth, Ed.D.• and
Mllria Telesco. R.N., B.A.
OllNC Publishing (Pub.) (1998) 351 pg.
Paperback
Where can you

tum to when a

family

member or loved one is accused or convicted of a crime? Why is il thaI family

members. friends, and loved ones. who
have commined no crime, often become Ihe
forgonen, invisible victims of Ihe criminal

justice system? How can you deal with a
system that you know nothing about. where
can you gel answers, how can you deal with
the stress and problems, and what can you
do to help? OUTSIDERS LOOKING IN
answers those questions and many more. If

there is a primer for addressing the cares,

concerns and questions of Ihe increasing
numbers of family members, friends and
loved ones of the criminally accused and
conviCled-it is this new book.
An excerpt from the introduction reads:

The perplexity of Ihe Calm process,
along wilh reporu ofperils lurking ill overcrowded imtitutiotJ$, SCi the stage for confusion and fellr. TlIis cripples the family
system, and makes il difficult to develop
slrategies for Ihe fuwre of the family rmit.
Children II'ho.se parCII/ or parents arc in
prison experil.!IIt·c proiongcli inSlability
alld wlcerloillty. and are Ihree times marc
likely Ihan their COlmlerparls to rrm afoul
ofthe law as Ihey grol\' older.
Those who Clller the COllrI ami prison
systems go through periods of anxiel)',
Irauma. shame. guilt and lerror. These feelings can cause ph)'sical and menial illness
and severely impdr their ability 10
function effectively. Demystificatioll of the
proceu prepares the family and Ihe ac·
cwed 10 cope during the Irial and afterwards. Learning aboul rules, regulations.
social aspects and day 10 day prison life
will help families conquer their fears and
regam control oftheir lives.
Inmales, ex-convicts. family members,
altorm!ys. correctional staff (md others
who work in, ar /ttn·c /tad contact with Ihe

F.P.L.P. VOLUME 5. ISSUE 1

criminal prosecution alld delentiall syslem h(1\'e contributed to this II'ork. alld
lYe are gratefill 10 them all for their
assistance and input. They relate
their feelings and experiences, talk
aOOm lile emotionai impaCI of incarceration. alld offer praclical advice
and lips an dealing with lh/! s)'slem.
An invaluable source of infonnation, OUTSIDERS LOOKING IN seeks
to empower those who love someone
who is in prison or jail. The insights are
powerful and accurate. \\hile the tips
and advice are practical and obviously
from olhers who ha\e "been Ihere and
done Ihat,"
In one source. this book lakes Ihe
reader through the arrest. coun and scntencing process in non-technical. everyday language. explaining Ihings both the
accused and family needs to know. How
10 deal with the stress. lawyers. couns.
prison rules and officials. are all cov·
ered within Ihe 351 pages of this well
wrinen book.
Available from: OLiNC Publishing, P.O. Box 6012, Fresno CA
93703-6012. Price: $11.95 (SI9.95 +
52.00 S&H, California residenls add
sales lax).•

NEW ADMISSIBLE
READING MATERIAL
RULES
On 10120/98 lhe FDOC adoptcd
new nIles at 33·3.012(5)(c) and (6)(b),
F.A.C.. that provide lhal if II prisoner
receives notice of a publication/reading
material rejeclion and imends to appeal
thc rejection, thcn in order for the material to be held while Ihe appeal process

is exhausted the prisoner, in addilion to
filing an appeal, must also send the
superinlendem of the institution a notice
of intent to appeal the rejection. This
notice of inlem is to be submiued on a
DG3-005 Request Fonn within 15 days of
the dllte of the notice of rejection.
Another rule that was amended on
10120198. at 33-3.012(11), F.A.C.• provides thai "books. periodicals or other
publications" can now be received from
"wholesnle or mail order distributors or
bookstores." This changed the former
rules Ihnl had only allowed books and
publications 10 come from the publisher.
This amendmem also removed Ihe fonner
prohibilion that prevemed Fl prisoners
from receiving books from book clubs.•

r----------------..,
Secret Toolsfor pos,.com·;clion R~/i~/. by
Joe Allan Bounds. 1998 Edition. 314 pages,
13 page Table of Contellt with over 440
quick reference lopies wilh favorable supponing federal case law. "The Research
Reference Book for Lawyers and
PostConviction Litigants for Prevailing 011 Inef·
feclive Assislallce of Counsel Claims, and
Methods of ESlablishing 'Cause' fot Procedural Default.·
Topics: Preparing for
Post-Conviction Relief; Ineffective Assis·
tnnce of Counsel; Connict of Interest;
Cause Procedural Default; Actual Innocence; Fundamenlal Miscarriage of Justice;
The "Ends of Justice"; Novelty Issues of
Law; Intervening Change
in
Law;
Retroactive Application of the Law; and
much more! 1999 Edition will be released in
March, 1999. Please specify which edition
beginning 3/1(98.
Regulnr pricc $69.95 plus $6.00 shipping
lind hnndling (inmate discoumed price
$49.95 plus 56.00 shipping and handling).
Texas residents please add 7.75% sales tax.
Send check or money order to: Zone DT
Publishing. P. O. Box 1944, Dept. FPLP,
Vernon, Texas 76384.

l'OSTCONVICflO:·.. Il.ElH: .... I'... ROlE. CI••:M.:NC\' &: ",0.11.001"

Callihe t.'l:pcriencc:d expcns at the Law Office or
Bernard F. Daley. Jt.
David Collins. or Counsel. ··'and Troy Drowning. our
paroJegal specializing in clemency. pardons. and restorotion
of civil rights.
Contact Bernie Daley. David W. Collins, Atlorneys atla..... or Troy Bro.....ning. at (850)
224-5823
Web Site I\ddress: Ww\\.noridaclemency.com
,. ''1'\00: ...... or. '-..,... Q.. ~ .aa- _ sloould _ be baled Ddy ape. ..e..'CfUIaaalU- Brion: ,..
dtadc, ak1be t.-ya 10 oaod)"'l he ~ IIbouI"QlDbf
~-

Page 14

PRISON LEGAL NEWS
"Perhaps the most detailed joumal describing the development of prison law is Prison
Legal News." -- Marti Hiken. Director Prison
Law Project of the National Lawyers Guild.

!

PLN is a 24 page. monthly magazine.
published since 1990. edited by Washington
state prisoners Paul Wright and Dan Pens.
Each issue is packed wilh summaries and analysis of recenl court rulings dealing wilh prison
rights. written from a prisoner perspective.
Also included in each issue are news articles
dealing with prison-relaled slruggle and aclivism from the U.S. and around Ihe world.
Annual subscription rates are SIS for prisoners. If you can't afford to send SIS at once.
send at least S1.50 and we will pro-rale your
subscriplion al S1.2S per issue. Please send no
less Ihan $7.50 per donation. New (Unused)
U.S. poslage stamps may be used as payment.
For non-incarcerated individuals. the
subscription rate is $2Slyr. Inslitulional
subscriplions (for allorneys. libraries. government agencies, non-governmental organizalions. elc.) are S60/yr. Sample copies are
available for $1. Contact
Prison Legal News

THOMAS E. SMOLKA
ATIORNEY-AT-LAW
3126 W. CARY STREET, SUITE 122
RICHMOND, VIRGINIA .23221-3504

TELEPHONE (804) 644-4468
E-MAIL tesmolka@worldnet.att.net

ANNOUNCEMENT
Thomas E. Smolka is proud to announce the establishment of his law
practice in Richmond, Virginia. His practice areas will be Criminal
Defense and Post-Com.1ction Remedies.
Additionally, Thomas E. Smolka And Associates, 909 East Park Avenue,
Tallahassee, Florida 32301-2646, Telephone (850) 222-6400; Telefax (850)
222-6484 will continue to pro\ide consulting seNces to inmates on
administratiw. clemency and parole matters.

2400 N.W. 80th St.. Sic 148

Seanle WA 98117

ADVERTlStNG NOTICE

ATTENTION FLORIDA INMATES
Get your Internet Rap Sheet now!!
Contains your FL history with your 3 114" x 4"
color picture (usually most recent DOC photo-not
your reception center photo). Picture is great for
. family or friends. Send $2.50 M/O-CHK+SASE or
ten $.32 stamps + SASE to: D. Ridgeway, 925 W.
Monona, Phoenix, AZ 85027. Order now!!!!!
ATTENTION FLORIDA INMATES

Work Release Services of Florida
Eight y~ars experience with DOC.
Very reasonable rates.
Work Release, Drug Treatment Transfers
Plus much more.
For More info, call Mary Grace Crosby at
(850) 668-2599 (no collect calls please)

F.P.L.P. VOLUME 5, ISSUE 1

U
8

~
~

II
I

8
E

~ 10 0 ~eem for our n:oden. 1M H'U' staff lUes every
effon 10 ensun: dw N'/.}' admlUcn ore n:putahlc 0lId quJllIltd
for Ihe savices being offered. We ClIMOI penonoJly meet every
od~niser. ·!lowever. lIlen:fore ruden ore advised to oIWIYS
penona1ly eonlatl odvatiJcn for funha infomullion on Ihm
qualifications and experience befon: makina 0 decision 10 hile 011
nnomey or olher "rofelSionalservice "roYider. Renders JIIouid
ne~r send legal docwnenJs 10 odwcnilCn before conllClins \hem
and receiYing directions 10 SCIId IUeh llIIlCrials.
For 1It0se wishinalo odvenise in FPLP. "lease write for rate
information 01 1M listed nddreu. AlID:
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PH: 407lS611-0200
Email: H'U'@acl.eom
Wellpage: mernben.otll.comlFPI.l'IH'U'
or
rnemberuripod.coml· ./01'1.1'

SUBMISSION OF MATERIAL TO FPLP
Because of lite Inrge 'lIlume ofmnil beilIg received by fl'LP.
financinl consideralions. and lIle inlbility 10 proYide individual
I.gal ossistanec. leadm should lIOl 5CrtlI copies of legal
dOCumertlS of pending or polCIIliaI casn 10 FPLP wilhoul Iinl
hoving conlocled Ihe Sllff llOd receimg directions 10 send
same. Neilller 1'1'/./'. or ilS S1llff. ore rnponsihle for lilly linsolieiled

T

matII!'" ial stnl.

A

k~lII!.rs ore n:quested 10 continue 10 send news
inrOnnalion including newspaper c1i""ings (pleose include name
of paper ond dale~ mClnornndums. photocopies of filW
decisions in un""blished casn. and polenhal anieles for ""blicalion. Ple.se send only cOllies of such mOleri.llh.1 do nOl h8\~ 10 be
IClumtd. H'LI' depends on YOU. its n:oders lIIIll supportCl'l to
keep informtd. so IItOI n-eryOM ClllI be informed. Thank you
ror your cOClpenlion nnd ...nicipation in hel"inglo gel the news
OUI. Your efTonsllf~ Ill.ally appreciated.

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Page 15

Florida Department of Corrections
2601 Blair Stone Rd.
Tallahassee FL 32399-2500
(850) 488-5021
Web Site: www.dc.state.flus
Hany K. Singletary, Secretary
488-7480
(Personal Sea'etary, Suzanne Powell)
Information
:
488-0420
(Info Director, Keny Flack)
Correspondence CentroL
488-7052
Inspector General. Fred Schuknecht...
488-9265
Interstate Compacts
487-oS58
Health Services
;
922-664S
(Charles Manhews, MD. Asst. Sec.)
Assistant Seaetary for Sccurityllnst. Management
Stan Czemiak
488-8181
Inmate Classification
488-9859
Sentence Structure
413-9337
Victim Assistance
488-9166
Populnlion Mgt.
488-9166
Regional Offices
Region 1
:
(850)482-9533
Region II :
(352)955-2035
Region III
(407)24S-0840
Region IV
(9S4)202-3800
Region V
(813)744-85;5

Florida Corrections Commission
2601 Blair Stone Rd.
Tallahassee. FL 32399-2500
(850)413-9330
Fax (850)413-9141

PL OS The Capitol
Tallahassee FL 32399-000 I
(850) 488-2272

EMail: fcorcom@mail.dc.state.f1.us
Chief Inspector GeneraL
922-4637
Web Site: www.dos.statc.f1.uslfgilslagcncicslfcc
Citizen's Assistance Admin
488-7146
The Florida Corrections Commission is r;omposed of Commission/Govemment Accountability
eight citizens appointed by the governor to oversee the to the Pcoplc
:
922-6907
Florida Department of Corrections, advise the goverOffice of Executive Clemency
nor and legislature on correctional issues. and promote
2601 Blair Stone Rd
public education 300Ut the correctional system in
Bldg. C. Room 229
Rorida. The Commission holds regular meetings around
Tallahassee FL 32399.2450
the state which the public may attend to provide
(850)488-2952
input on. issues. llItd p~blems afT~ing the CO~iOMl
Coordinator: Janet Keels
system In Ao.nda. PnsonCtS faJmhes lUld fnends are
encoumgcd to contact the Commission to ndvise them
Rorida ParoleIProbation Conunission
of problem areas. The Commission is independent of
2601 Blair Stone Rd., Bldg C
the FOOC and is interested in public participation and
Tallahassee FL 32399-2450
comments concerning the oversiBf\t of the FDOC.
Commission Members:
(8S0) 488-1655
Edgmo M. Dunn.• Jr.• Esq.-ChAir
Katie C. Ni~s-Vice Chair
Hon. Willilml Evers-Mayor of Brndenton
D3vid F. lfJuvey. Sheriff. WDkuIla Caunly
Alma B. Litt.la. MD
Guy Revell. Jr.-Fonner Parole: Commissioner

Ray SlmSom, Ok:doosa Caunry Commissionu

Edwnrd Nod.vse, !\C.F.E.

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IlIjustlce turywlrere Is a thretll toJustice everywhere. - Martin Luther King,

F.P.L.P. VOLUME 5, ISSUE 1

Office of the Governor

Deparbnent of Law Enforcement
P.O. Box 1489
Tallahassee FL 32302
(850)488-7880
Web Site: www.fdl~.state.f1.uc;

FLORIDA
PRISON
LEGAL
PERSPECTIVES
P.o. BOX 660-387
CHULUOTA, FL 32766

Florida Resource Organizations

Florida Institutional Legal Services
(Florida Prison Action Network)
111O-C NW 8th Ave.
Gainesville FL 32601
(352)955-2260
Fax: (3 S2)95.5-2189

EMail: fils@afn.org
Web Site: www.afn.orglfils/
Families with Loved
ones In· Prison
710 Flanders Ave.

Daytona Bch FL 32114
(904)254-8453

EMail: flip@afh.org
Web Site: www.afn.orgfflip
Restorative Justice MinistIy Network
.P.O. Box 819
Ocala. FL 34478
(352) 369-5055

Web: www.rjmn.net
Email: Bemie@rjmn.net

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Page 16