REPORT REVIEW
Maill/aillillg Family COli/act Wlrell A Family Member Goes to Prisoll
All Examillatioll ofState Policies 011 Mail, Visitillg, alld Teleplrolle Access
(A Report By Tire)
Florida House ofRepreselltatives, Justice Coullcil, Committee 011 Correctiolls
Review by Teresa Burtis
Dllrlng the last ha/fa! /998 and Ihe
first months of /999 there ha\'l~ been
lIuml'TOUS meetings held II'l1h the
Florida Corrections Commission, Legis/alll'i! Co"eClions Committees, Dnd mT·

iaw mdMdual legislalOn by members
and staff of tire groups thai make up the
Florida Prison Action Network (FrAN).
One of the outcomes of those meetings
11aJ' a first of iu kind random $UTl'c..,'
bemg conducted oj 286 vUiling family

members of Florida prisoners, and 6/
Florida Department of Corrections cor-

rectional officers. by the House Commitlee Otl Corrections. The aho\'f! litf/! \l'DS
gil'en to the final repor/. Slale Repre,fenIOlive Allen T'Ql'iIlion, Chairman of Ihe
Hallse Correctiolls Commine/!, II'ho I
personally met with in February, W(JS
;lIstrumelllal in directing the Commillee
staff 10 conduct the survey and report
back wilh Ihe findings, for lI'hich he is
deeply thanked by our slajJ
Theprimaryfocus oflhe sun'ey was
10 examme policies of the Florida Dcparlment ofCorrections (FDOC) and determine IIhat Impaci lhose policies hID'e

INTHSISSlE

•

on prisoners' family members in the
State of Florida. The result of the survey was a 94 page report cOI'ermg
FDOC policies on moil 10 and from
prisoners'family members, l'isiting and
visiting conditions, and telephone access and telephone access problems,
While it is not possible 10 print the
emire report here, the filldmgs alld recommendatioJU of this report are I'ery
Important, and felt to be worth covermg, The introduction, findings, recommendalions, and canc/usion.r of the report will be primed here 11/ Iheir entire/)', Througholll this i.rslle of FPLP,
Olher facls and figures from Ihe reporl
will be presemed.
This reporl comoills a weollh Df
informalion Ihal el'cry' family member
Dr ID\'ed DIIC Df a FIDridtl prisoller
/leeds 10 knoll', Vnfarlllllalely, il is jWt
/lOt possible 10 print the ell/ire reporl in
the limited numher of pages of FPLP.
Personally, I feel that e\'ery' prisoner
and every' family member 01' 10l'ed one
ofa Florida pruoner needs 10 read this
rf!pDrl. The Internet addres.r where any-

one willi access 10 a computf!T can read
or download Ihe complete report
is:h II p:/IW\\ II'.d05.Sla I e. n. uslfgilslfccJ
reporWfamily/famconl.hlmL
Inlroduclion:
In the lasllen yean, the number of
people incarccrllled in Florida has aImOSI doubled, rising from 33.681 in
1988, 10 64,713 in 1997. As corrcclional populations increase, 50 do the
number of people, adults and children
alikc, who are undergoing the experience of having a family member in
prison. Thousands of families across
Florida are traveling 10 visit their loved
ones in prison, sending them money for
lhe inmate to purchase leiter writing
matcrials, accepting collecr phone calls
and sending and receiving mail. This
report examines the government policies which impact these families and
the government services received by
these family memben as they seek 10
maintain conUlcl with their child,
sibling or partnt \\ho is incarcerated.
According 10 lhe depanmt'nl, al

F-ROM THE EDITOR....
AROUND THE NATION
NOlAB
CA-SES
I"LP SOli
OFF
F DOC DI IPLINARY PR\lCEEDtNGS
PAST A B S ERE P R TED BY PRISONERS
~ 0 rUl.: E C

S-e

5
7
9
13
1
21
22

least 95% of Florida's prison population Slate leaders in both the executive and
wilt at some point return to the commu- legislative branch of government by illuminity. In recognition of this reality, the
state implements programs which prepare the offender for ,1 successful release
such as substance abuse treatment,
educational programs or job training.
Although substance abuse treatment, education and job skills may enhance the
offender's likelihood of a successful release, probably most important is for
released oncnders to have someone who
will give them guidance and support
when they are released. For this reason,
fhmilics ·can be a valuable community
resource for assisting in an offcnder's
successful reentry into the fTee world. In
fact. research has shown that having a
f.1mily to refurn to is one of the mOSt
important factors in a released inmate's
success,
Although family and community
contacts can playa very important role in
helping released offenders avoid returning 10 prison, this report will show that
the state has neglected lhis val\lable resource and has in the last few years
erected lllallY impediments for f<unilies
who strive to maintain meaningful contact. In addition. this report will show
that there is a remarkable absence from
the rehabilitation programs being offered
of any large scale programs aimed at
family services, improving visitor services or assisting the oncnder to understand and maimain positive family relationships. In contrast to the absellce of
visitor services or programs in Florida,
this report will inventory the diverse and
innovative programs operating in other
states.
Finally, this report will document
the hurdens borne by family members
with loved ones in prison and the extent
to which families substantially subsidize
the correctional system through their indirect contributions to the inmate welfare
trust fund. In addition to having to adjust
for the lost income from the inmate, families also mllst take on additional expenses just to keep in touch with the
inmate. Families must supply the inmate
with writing materials, accept collect
phone calls a high rates, and travel all
over the state to visit.
Hopefully, the findings and recommendations in this report will be of use to

F.P.L.P. VOLUME 5, ISSUE 4

nating the complex and emotionally·laden
corrections and family issues presented
here. At best this research will serve as the
impetus for the state to provide real customer service improventents to families
and to "think outside the box" as it attempts to remove some traditional and bureaucratic constraints to family reunification and to reduce recidivism.

FLORIDA PRISON LEGAL
PERSPECTIVES
POBox 660-387
Chuluota, Florida 32766
Publishing Division of:
'LOR'''' PRlSOSEItS UCA.. AID O.CASI1"TIO~. 1'1:,

A 501(c)(3) Non Profit Orgallizalioll
(407) 568-0200
Wcb: hltp:flmembers.aol.colll/fplpJfplp.html

Ft'LAO D1UECTOUS

TERESA BURNS

Findings:
F1: Empirical research suggests that encouraging fhmilies to remain intact may
help lower recidivism.
F2: Security measures imposed by the
depanment present barriers to maintaining family contact.
F3: The lise of approved calling lists and
phone call time limits. although important
security features, make il more difficult
for families to communicate by phone.
F4: It can be very expensive to accept
phone calls frolll a family member in
prison. Under the currenl
ra!e
caps provided by the Public Service
Commission, a ten minute phone call may
cost anywhere from $2.45 to $7. Surveyed f.lmily members estimated spending
an average of 569.19 a month accepting
telephone call from the inmate. Additionally,
some
telephone service
providers have a history of overcharging
inmate families.
F5: Families and friends of the inmate arc
the primary source of income for the Inmate Welfare Trust Fund, which collected
almost $49 million in revenues in FY
1997-98.
F6: Most of the Inmate Welfare Trust Fund
is not spent in a way that directly benefits
families. In FY 1997-98:
.578.550, or less than 1%, was spenl
on visiting pavilions; and
• S28.605,777, or 59%, was spent on
operating expenditures, including more·
than $5 million for employee salaries and
521 million for restocking the cameens.
F7: Other states with larger correctional
populations, sueh as New York and California, are using revenue from inmate
telephone commissions to provide direct
services for inm:ue families, such as
visitor centers and transportation to
remote prisons.
F8: [n a survey of families visiting Florida

BOB POSEY

DARRYL McGLAMRY
DAVID W. BAUER, Erq.
1'1'1.1' STAFF
Publisher

TERESA IlURNS

Editor
BOil POSEY
layout Editor JOI IN OAKS
Research
SHERRI JOHNSON
Admin. Anis. USA FAUI.KNER

TRACI ROSE
F1'I.P AI)VISOny 1I0ARIl
WilLIAM VAN I'OYCK
Pllll,lPDAGLEY, SHARON SIMMONS
TERRY VAUGtlN _MlellAEL LAMDRIX
ALAN J. COTION, JAMES QUtGLEY
JAMf,s TA VLOR - JUDIE lilGllTQWER
CARL WELLS, GLENN SMrnl
llRIAN MORRIS· EARN HOWARD
LINDA GOnt..tEB· SUSANNE M. MANNING
JANE PRATT· PAUL ADAMS
KIMBERLY PEOPLES, PETER nI.ANTON
JAMES MAJOR, ENRiQUE DIAl
SCOTT GRAY
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The Information In lhis publlcalion srOVld('.s news
and opinIon ffl}m various 5OUICC5 an may nOI pm.
vide suffiCIent infOlmation 10 deal wl1h a legal pmblem. Neilher lhe publishel. nOl Slalr. ",rrMIS or
represents the sUllabillty of lhe informalion In this
publieallon fOl inSlitullnG an)" legal aClIen. An
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Page 2

correctional institutions, 23 respondents
independenlly asked that the package permit policy bc reinstated, stating lhal it was
meaningful for families to be able to send
"care packages" with religious materials,
books, newspaper anicles and family
photos, especially on birthdays and holidays.
F9: The maj6rity of state prisons are in
remote locations, usually without convenient public transportation services. For
example, the most remote prison, Cemury
from
·C.1. is approximately 700 miles
Millmi. Furthemlore, proximity to family
members is not lhe primary factor in assigning an inmate to a prison. According
to surveyed family members, the travel
distance required to visit was the greatest
burden experienced as a result of having a
family member in prisc;m.
FlO: Although described as a meaningful
experience for families, there has been a
statewide trend to prohibit inmale families
from attending chapel with the inmate.
Sixteen institutions currently provide
such services. Sixty-one percent of correctional officers surveyed feel such services
create a serious security threat. However, this may be related to the fuct
that many institutions do not
provide
security staff for chapel services.
FII: Typically, institutions rely on the
inmate to provide family members wilh
infonnation abut visiting. Both visilors
and correctional officers expressed frustralion that institutions do nOI provide
visitors with ijdvllnce infonnation aboul
visiting rules and procedures, or about
other policies of the department.
F12: According to the survey, visiting
policies, such as the dress code, are not
unifonn among institutions.
Furthermore, both officers and fllmily members
reported lhat policies are often applied
ineonsislently or in a biased manner.
F13: Outdated processes and equipment
and lack of staff cause frequent delays in
processing visitors. Visitors often express
lTustmtion at Ihe slO\.Vlless of the check-in
process typically complaining that the y
had to, stand in long lines outside Ihe
inslilulion exposed to inclement weather.
F14: Both officers and visitors expressed
mutual concem over the level of cOllrteousness in the visiting area.
F15: According to the survey, the avcrage
visitor is a fifty-year-old mother visiting
her son.

F.P.L.P. VOLUME 5, ISSUE 4

F16: Although an important and necessary
security measure, the pal down search can
be a degrading and humiliating exper;~
ence. Ninety percent of the visitors surveyed said they undergo a pat down search
every time they visit.
F17: Most visiting areas have nothing for
children 10 do during visiting. Only five
institutions provide anything for children.
All five have either toys or books or both
available for children inside lhe visiling
area. One of these five, a private facility,
also has a small outside playground area.
Fl B: When visiting areas are not modified
to accommodate children, the visiting
experience can be difficult for everyone
involved - the child, the parents, and the
correclional officcrs - as small children
are expccted- to sil quietly for lip to six
hours. Fifty-two percent of the officers
surveyed think that it is inappropriate to
even bring children [0 visit a family memofficers
ber in prison. However, 17
independently suggested that if childrcn
are allowed, the institution should provide
some sort of activity for them, such as a
VCR, toys or a playground.
F19: According to the survey, visiting area
vending machines can be costly, contain
unhealthy food, and are often empty beThe
fore the visiting period is over.
correctional officers surveyed repea(edly
reported that difficulties associated with
vending machines arc a major problem in
the visiting area.
F20: According to the survey, correctional
officers perceive lhc lack of assigned staff
to be the biggest problem in the visiting
area. Seventy-two percent of correctional
officers surveyed believe [hal the visiting
area is understaffed. (Note: No determination was made as to whether this was a
result of insufficient full time employ·
ees or inappropriate post assignments.)
F2 I: Onc out of every four visiting areas
does not have enough sellting to accommodate the maximum capacity of visitors.
F22: Ninety-three percent of correctional
offiecrs surveyed view the property res[ric[ions in the visiling
area as effective. Although these restrictions have reportedly made controlling contrabllnd less
burdcnsome for correctional officers, they
have also had all impact on families who
complain they can no longer bring family
meals or toys or coloring books for children.
Recommendations

RI: The Legislature should amend
§945.215 [Florida Statutes) to require thai
a percentage of the inmate welfare trust
funds be spent on improving family contacts.
R2: The Legislature should prioritize
inmate welfare tnlst fund appropriations
to insure visitors arc not forced [0 be in
inclement wealher.
RJ: The Legislature should amend
§20.3 I5, F.S., to create an Office of Fami1y Services with [he Department of Corrections. The mission of the newly created
office will be, at a minimum, to advocatc
and facililatc policies and programs which
encourage family contact and frequent
family visits. The office will also be
required to develop and disseminate information on visiting regulations and processes to approved visitors, provide specializcd lraining for officers who are regularly assigned 10 the visiting area, periodically audit and review instilutional visiting. mail, and
(elephone procedures
and identify visiting area physical plant
deficiencies which may directly impact
family members, serve as a centralized
communication point to receive and respond to questions from family members,
and develop and opemte a formal family
grievance process for family members.
R4: The Legislature should require the
department to study and report back 10 Ihe
Legislature on the feasibility of thc following:
• Creating and disseminuling an informal guidebook to assist families in understanding the rules and policies of the
department;
• Rcturning to a poliC)' of allowing
families 10 send a limited number of packages to inmales or creating a sySlem for
standardized care packages;
• Piloting an alternative method of
institutional telephone service which can
shift the burden of paying from lhe family
to the inmate or allow the paying party 10
chose the service provider, while maintaining the commission and not compromising security;
• Providing activities for children,
especially activities that offer inmates the
opportunity to interact with their own
children;
• Consulting with correctional omcers to consider ways to deal with children in Ihe visiting area while still encouraging children to bond wilh parcnts;

Page 3

• Addressing the staffing needs of concem of the depanment, it need not be
the visiting area and consider implement- to the extent of all other considerations.
ing civilinn positions or using tempornry Security measures that arc overzealously
applied, result in only a small improvenssignments;
• Examining the current food service ment in institutional safety and which extmct a huge toll in disenfranchising famimethods in visiting areas;
• Using lhe Internet to provide visit- lies, must be revisited and evaluated. For
example, many institutions have elimiing infonnation;
• Providing specialized training for nated joint chapel services, in spite of
the imponance to families, because of
officers working in the visiting area; and,
• Any other propositions that may "problems with contraband." However,
benefit the family without jeopardizing several institutions have demonstrated that
total elimination ofa problenllllic program
security.
is not always the only option available.
By adapting the necds of the family
Conclusions:
to
the
needs of the institution, comproThe department, by statute, is
mises
and balances can be achieved.
charged with rehabilitating offenders
FunhernlOre,
while allowing families to
through work, programs, and services. Beperiodically
mail
pnckages may have cre·
cause research has shown that family conin the past, such
ated
security
problems
an
imponanl
role
in
the
tacts can play
inmate's rehabilitation, it is a logical con· packages were a very imponant method of
elusion that the depanment should make continuing to act like a family and proevcry attempt to utilize this resourcc and vided a personlll connection thm was vllldo \\hat it can to encourage family con- ued by families. Ralher than complctely
U1ct, panicularly when such contact pro- abolishing the program, the depanment
duce$ an additional benefit of a si7.nble should considcr alternative means of allowing such packnges while still account·
revenue for the state.
ing
for security.
The agency's strategic plan for 1998in other
Correctionlll systems
2003 recognizes that more than 95% of
states
have
demonstrated
that
total
elimi·
the offenders will be at some point renation
of
the
package
system
is
not
the
leased to the community, lind that proby
only
answer
to
the
contraband
problem,
grams must be provided to insure
allowing
families
to
send
care-packages
public
safety.
Currently
these
rellllbilitarion-oriellled programs targer containing pre·lIpproved items. If fmnily
substance abuse, education deficiencies, contacts are to be encouraged, rules must
job skills and life skills. There is little be developed in a manner that considers
mCllIion of using the family to assist in the impact on families and lessens
rehnbililation. or the imponance of in- government intrusion.
Accepting phone calls from the inmates having family contaclS.
mate.
ahhough imponaru in maintaining
In its cvcry day opemlions, the decontact,
can be exceedingly expensive.
panment plays a very imponant role in
Not
only
arc the calls billed at the already
detcnnining Ihe nature and quality of can·
higher
than
average collect rate, but the
tact thnl families of inmates arc able to
pany
is unable to chose Ihe lowest
paying
mnintain. The plndng of inmates, Ihe
cost
service
provider, because all calls
siting of prisons, the development of
from
an
institlllion
arc divened to a single
programs, and lhe promulgation of rules
telephone
company
under contact with the
arc just a few of the responsibilities of
depanment.
the depanment that, while primarily
The provision of telephone services
inl~nded
to accomplish other purposes
can have a profound effect on families. 10 the inmate population is so lucrative
Although the depanment recognized in its that telephone service providers arc able
rules Ihat maintaining home and commu- to offer the depanment up to 55% of their
nity contacts can lead to a reduction in profits as a commission. Finally, because
recidivism, many barriers and burdens ex- inmates may only make collect calls, inist that prevent or lessen the value of such mates bear no responsibility in budgeting
and planning for the costs of such calls.
contacts.
When renegotiating contracts with tele·
is
the
primary
Although security
phone service providers, the depanment

F.P.L.P. VOLUME 5, ISSUE 4

should consider the expenses borne by
inmate families, in addition to security
features and commissions. The depanment should also consider alternative
menns of providing access to telephones.
Through telephone commissions,
food purchases while visiting, and deposits in the inmate's account. families
and friends arc lhe principal contributors
to the Inmate Welfare Tmst Fund. Vet,
while almost $49 million in revenues was
collected in FY 1997-98, less than
$100.000 was senl on programs that
directly- benefited such families. Other
states with largc correclional populations,
such as New York and Califomia. are
using revenue derived from telephone
commissions to provide direct services to
inmate families, like visitor hospitality
centers, toys and games for children who
visit andincarceTnted parent, nnd trans·
ponation to remote prisons.
Because IllOSt institutions rely on the
inmate to infoml family members about
the policies and procedures associated
with visiting, many family members remain uninformed. not only arc family
members unaware of many of the rules.
but they also do not understand the security justifications behind the rules. The
department should develop II handuook,
providing families with information
about the depanment and its institutions. and discussing peninem rules and
why they are important. At a minimum,
institutions should be required to develop
a visitor infonnlltion sheet using a uni·
form format, to be mailed to all prospective visitors by the institution.
Visiting presents many challenges
for families. Many prisons arc located in
remote pans of the state, requiring long
drives at very early hours. Upon arrival at
the institution, visitors must stand in long
lines with no shelter from inclement
weather. Visitors often arrive uninformed
about the rules of the visiting park, and
their lack of infomlation is compounded
by the often inconsistent application of
the rules. Once inside, vending machines
are often broken or even empty. Children,
although a consistent presence. are generally allowed nothing to keep them occu·
pied for the six-hour visiting period.
Such visiting conditions strain both
the \'isitors and the correctional officers
working the visiting area, crenting hostile

Page 4

llnd negative relations in some cascs. For
the above reasons, Ihc Legislature should
designate an office of family serviees
within the depanment. Such office would
be respo,nsible for insuring that visitation
is provided in a manner tlml encouraged
family contact and development, espccially for the inmate's children, without
compromising valid security concerns.
The office could develop means of infanning families about the rules and policies of the department in a manner that not
only prepares them for future interaction,
bUI educates them as to the purpose of
such requirements. The office could also
develop informlltion and training to assist
officers 10 be beller prepllred for the
requirements of the post and provide better customer scrvice to visitors.
If the Legislature chooses to create
an office of family services, then this will
be the final ana necessary step of:! collaborative three-prong pannership with victims of crimes, communities of faith,
and inmate flllllilies. The first partnership
began about a decade ago when the LegisllllUre began to address the needs of
victims of crime. Through extensive
legislation. \'ictims have gained rights in
the criminlll justice system and access to
special programs alld services Furthermore. the department's Victim Services
Office serves as a focal point {or victims
who need services and infomilltion. The
second partnership was iniliated just two
years ago when the Legislature squarely
addressed the importance of inmates accepting personal responsibility for their
crimes. In §944.803, F.S., the Legislature
required the depanment to develop pannerships with faith-based institutions in
the community in order to assist inmates
in recognizing their accountflbility.
After addressing the needs of the
offender's victim. and the irnponance of
the offender's acceptance of personal responsibility while incarcerated, the final
step is to address the importance of the
offender's situlltion upon release. Now is
the time for the third component to be put
into place.
While overall conclusions and recommendations of this report suggest that
significant improvements are needed, such
changes will not come about unless
agency leadership embraces pro-family
policies. Families are. by their very nature, a relatively powerless constituency.

F.P.L.P. VOLUME 5, ISSUE 4

And, the Legislature has traditionally delegated to the executive branch these
types of prison mlll1agement decisions.
Even if the Legislature seeks to micro manage the prison system and impose
certain pro-family services through mllndate, it will most likely curtail its policy
interference when it is wamed that such
change may threaten prison security, increase legal liability, or remove vilal funding from mainstremn rehabilitation programs. For these reasons, the bulk of the
recQlllmendations listcd in this repon
arc direcled to the corrections professionals who are first and foremost charged
with the protection of public safety and the
best equipped to balllncc the needs of
security with the needs of family unification.
The challenge for corrections professionals prompted by this repon will be
to become a panner to families and view
them not as a burden but as a new constituency. While the promise to our citizens is to be tough on criminals and rnuintain tight custody and control of inmates
during their incarceration, the citizens are
also demanding a decrease in crime and
relief from its impact. By restoring fundamental family relationships which arc consistent with lawful living. the inmate may
be less likely to return to society with the
clear illlent to commit another crime. This
vision has the potential to save millions of
dollars through reduced recidivism and
may also spare some of our communities
and families from the hardships of crimc.

•

IMl<IW3

mr TWl'OOHt: CDM\'SIO~

II......
II......

11.II.....

.....
.....

II......

II.....

""""

•.."

91-92 92·9J 91-9' 94-9S 9S-!:6 96-97 97·\IIl

""""'"

{SM:r:rooc~itpn)

From the Editor...
Recently 1 watched as Ihe final touches
were placed on a Close Management Unit
(CM) that fomlerly had been an open population two-man cell donnilOry. Even though
the prison, Columbia C.l., already had a
specially built "T-Building" CM Confinement Unit that holds 250-plus, the powers
Ihat be had decided Ihat the tWO open population housing units that have cells would
also be ·converted to CM units. This will
result in approximately 800 people at this
prison alone eventually being in solitary,
sensory-depriving confinement for years at
a time in many cases. What really astonished me however w:as the final touch on
one of these converted confinement units.
On the outside of the windows were
placed boxes constructed out of brightly
polished gulvanized comlgmed roofing lin.
ostensibly so that the prisoners inside the
cells cannot see outside the small highsecurity type windows that fnce the open
compound of the prison. The tops and bottoms of the boxes were len open to provide
some measure of ventilation, but the sides
were enclosed with the tin to prevent "sideviews" out the windows.
At first the ramifications of these boxes
did not regisler on me, having seen similar
boxes constructed out of fiberglass comlgated panels on almost all Close Managemen! Confinement Units around the state;
its pan of the "program" to deprive as
much sensory input as possible in these
confinement units. Yel later that day the
West-facing side of the unit was baked by
the full aftemoon sun. The temperature was
an early-summer 90 degrees. The corrugaled roofing tin over the windows of lhe
CM Unit began renecling like giant spot.lights so blinding you could not look directly at them, there was no doubt the metal
was radiating a tremendous amount of heat.
I had been in one of Ihose cells when
they were open population. I knew that in
the summer months the small amount of air
that was drawn in through the louver-type
vem on the window was barely adequate to
ventilate the cell as it was. I had suffered
days and nights in the sweltering summer
heat of these cells. Any air drawn in the
window was hot air. BUI I knew that I had
never experienced anything like the CM
prisoners in these cells are going 10 experience with the metal boxes fastened over

Page 5

fhe window, bllking lind superheating any
air that might make it in the window vent.
Nor was [ the only one who realized the
seriousness ofwhnf is going 10 happen.
That evening, as open population pris·
oilers walk pnst the confinement unit going
to supper, nil eyes were onthc llletal boxes
installed thal day over the windows. From
hardened prisoners, lllan)' of whom havc
themsehes been in confinement at one
point or nnother. I heard gasps of disbe·
[ief. comments on how any prisoner in one
of those cells was going to "fry" this summer, how .the boxes will act like giant
"mdiators" cooking and suffocating the
cell inhnbilams. A modem foml of the
"hOI 00:';" from Florida's past a la "Cool
Hand Luke," history repeating itself.
Imagine, if yOll can. being confirled in
a 8' x [0' cell. The only fixtures being a
metal bunk, metal sink and toilet comb ina·
tion. a florescent light. The door is sleel
with a Ihick Plexiglas window Ihat you
wil! be punished for looking alit of. There
is 110 television. no radio, no diversions.
Any reading material is slrictly regulated.
You nevcr leave the cell except for five
mintlleS three limes a week for a shower.
or for one two·hour ollidoor exercise pe.
riod a week in a small chail11ink wire
"DOG run" type cage buill onto the can·
finement unit. You never speak to another
person unless your keeper speaks to you
firs!. In fhe cdllhere is a window wilh a
built·in louver venl for ventilation, but on
the outside of the window has been placed
a IIlCIIlI box so that nothing can be seen out
thc windo\\' and the incoming air is super·
healed in the summer so that yOIl conslaml)' sweat.
Now imagine, being in that cell for
years III a time. Imagine your altitude to·
wards your kcepers, towurds OIlier people. Imagine the depression, the loneliness. the alienation, Ihe mcntal gymnastics
that you will go through. Imagine a hale
that builds and builds: towards your keep·
ers. lowards a socicly thlll allows this to
happen. towards yourself. and finally in
Illany cases. towards anything that moves
or thlll is alive. Regardless if the rage is
rational or nOI. it's almoSI inevitable. But
you mUSlnot show the anger. if your keep.
ers see it your stay will be extended. Now,
imagine keeping all this inside. unable to
express it. Imagine what might happen
when )OU are finally released.
The citizens of Florida will increasingly be

F.P.L.P. VOLUME 5, ISSUE 4

nble to experience what lhe above type
confinement does to people as the
Florida
Department
of Corrections
(FDOC) continues to increase its use
of sensory depriving confinement on
thousands of state prisoners. Even though
the FDOC knows that 95 percent of prisoners will be released back into the com·
munity one day as sentences arc served,
the depanment is in lhe midst of crealing
confinement conditions so harsh thm many
of those released will be walking time
bombs.
In [995 Ihe FDOC began the construe·
tion of 45 T-building type CM Units, each
holding approximalely 250 prisoners in
24 hours a day lockdown conditions.
Those units are complete now, hOllsing
potentially [1,250 prisoners. Now the
FDOC is convening existing population
units to confinement units. Besides
Columbia c.i., in the past couple of
months conversion of the open population
cell·type housing units at Libeny and Taylor C.l.s to confinement units has been
verified. Many of the prisons in the Somhern pan of the stale arc convening their
open population units to confinement
units. 11 is clear that the FDOC is prepar·
ing to lock down a large percentage of
Florida's prisoners.
In coming issues of FPLP readers will
find more coverage on the effects and
conditions of confinement that Florida
prisoners are being subjected to. I personnlly, and many of the slaff, feci that CM
confinement. as practiced by the FDOC
and its employees, hilS the potential 10 be
the most serious threat to public safety and
the mental health of prisoners lhat the
FDOC has ever engaged in.
In order to adequately and fully ad·
dr~ss this situation, prisoners who have
experienced CM and who have been reo
leased, or those currently on CM status,
arc encouraged to write FPLP about
the
experience. We need factual
testimonies of prisoners of the conditions!
abuses in this confinement and how it has
affected them and others. We are especially imcrested in the psychological and
physical effects this type long lenn soli·
tary confinement has had on people. Ifany
documentation is sent, do not send origi·
nnls thm have to bc returned. Encourage
Olhers 10 participate in this project. spread
the news to other CM prisoners. We in·
tend 10 compile this information for a

report to nmionol and inlemmional human
and civil rights groups.
In May, Florida prisoners were noti·
fied that the case challenging the FDOC's
personal property restrictions, Tungate, et
al. 1'. FDOC. had been lost in the state
couns, and the injunction prohibiting the
FDOC from forcing prisoners to dispose of
personal property had been dissolved. Actually thai injunction had been dissolved in
October, 1998, when summary judgment
was granted the FDOC, bUI allempts at
rehearings and an appeal stretched the case
out until Mny. Cenification of that case as
a class aClion saved the FOOC from thou·
sands of individual chl1l1enges all across
the stme, in every circuit coun and, conse·
quently, from potentially adverse deci·
sions.
The new FDOC Secretary, Michael
Moore, has detennined that Florida prisons
will now have "wardens" instead of
"superintendents." Sounds "tough" to me.
FPLP has also been infonned, but not yet
verified, thnl Moore intends changes to the
regional director positions, something that
has been needed for years.
FPLP continues to grow with the sup·
pon of its readers. Everyone is asked to
continue encouraging olhers to gel in·
vo[ved by subscribing and supportir!g
FPLP. Prisoners are asked to share their
issues with Olhers and 10 encourage their
families and friends to subscribe, the out·
side network is crucial to FPLP's continued
effectiveness. Thank you, to nil those faith·
ful supponers who have made extra donations or got others to subscribe. Between
now and the next [egislative session Ihere
is II lot of work that must be donc, we can
do it if we all just keep working together.
BOB POSEY, Editor.•

UPDATES
• In Ihe Gomez v. Singletary case
(substitution of coni raJ release for stmutory
overcrowding programs ex posto f.'1CIO vio·
lalion), on May 20, 1999. (after the last
issue of FPLP had been sent 10 the printer)
the Florida Supreme Court denied thc
states motion for rehearing, bUl issued a
revised opinion in Ihe case. See: Gomez v.
Singletary, 24 FL W S254 (May 20, (999).
The revised opinion provides chans of how
the early release credits that were illegally
withhhcld would be distributed if the deci·

Page 6

sion stands. The coun also issued a stay
until June 21. 1999.10 allow the state time
to decide nhether to seek ceniorari review
but the U.S. Supreme Coun. Governor
Jeb Bush publicly stated that they would
Inke the case to the U.S. S. Ct. For Ihe
currenl SlalUS of this case. speak with an
infonned law clerk.
• In Volume 5, Issue J. of FPLP, in
Ihe "AROUND THE NATION" seclion. il
was reponed that a class action lawsuit
brought by Utah prisoners against a ban
on receiving wrilten or printed materials
that contain nudity or panial nudity had
been seuled with the UT DOC withdraw·
ing the policy and paying the prisoners'
attorney. Brian Barnard of the Utah Legal
Clinic. S15.0OO in anomey fees. Unpublished Case: Perry v..\fcColter. USDC
Ulah 97·C...·0475C. On October 28, 1998.
another class action lawsuit represemed
by Mr. Barnard was sell led against the
Davis COUnlY Jail in Utah that chal·
lenged similar censorship rules at that jail.
rules lhat purponed to ban not only mate·
rials depicling any type nudil)', but also
books and newspaper clippings. The one
hundred named jail prisoner plaintiffs in
the suit split S11.682, or SI dollar for
each day that the ban was in effect against
them \~hile in jail. Attorney Brian Bamard
recei\'ed 5 57.000 in attorney fees and
costs in the senlemenl. This is another
unpublished seulement case and not a decision on the merits. Ayala \'. Davis Co.
Utah, USDC Utah. Case No: 1:96·CV00030C. [Source: Prison Legol News.
5/99)
•
In Volume 5, Issue I, of FPLP in
the "AROUND THE NATION" seclion it
was reponed that on July 2, 1998. the
federal 9th Circuit Coun of Appeals. ruling on a case out of Maricopa Co., AZ.
had struck down a county prison's regulations banning sexually explicit materiA
als/publications depicting "frontal nudityM as overbroad and unconstitutional.
See: Mauro V. Arpalo, 147 F.3d 1137
(9th Cir. 1998). However, on December 2,
1998, thaI decision was withdrawn for an
en bane rehearing by the full coun of the
9th Circuil. See: Mauro I'. Arpaio. 162
Web I'age ,\ddreu:
hI! p:llmembns.lIo!.eomlfplplfplp. h Iml
E·mllil Address: fplpgllol.eom
Telephone; (407) 568-0200

F.P.L.P. VOLUME 5, ISSUE 4

F.3d 547 (9th Cir. 1998). •

PERSONAL PACKAGiS
10 PIlISON1!RS
from 1983 1IlItI1 1995 FkridI pri$cIrIen'
lImilits and friends could 5ef\d lhem pactagts
penulaJ UIlU like ahots. lIlIdtA'ear.
.• ml.lerisls. rame.. W.lcheS.1n 1995 !lie
es aJlo~ing fsmilits and friends 10 5ef\d
ckages Wtn rqlCalnI u Ihe FOOC reali~ed
! milllcN of doUsn ~m: being lpall on
by fUllilin and fritnds lb.! !he
wu llCl receiYtq all)' pat! of. Now
. pi$l:Ilm muJ\ pnhase all)' peracn.l
, m d'roup lbe PDOC...hid! ((IlIndJ widi
allIick ... r:ndtr for .bolesak lriees and
infla1e5 lbe c05lIo priaoJIen SO and uen

1Of ~.

I!lt _ ) '

10 ~

sucli

iIIll are mostI)' poor quaJily so iII.lltIe)'
lW be repI.Ictd ~)' • C'OlIIeJ from
uniIies and friend1. Man)' pisone{s families
Ite IlllJbte or llllWilllna lD send mOfle)' CO
nIlI •

ue !he shoddy &rxds at !he ~
'CCI, which forcu prisorIen CO obtain shou,
ear. belts. lIOl:b. CIC., from !he awe.•1
Srpl.)'eI'" e~. II is estim.ted
lbll
tupI)'mI are paying mllIion.1 of doUus mare
in shoes and IIIlder clolhing far pri.scJners Ihlll
befare 1995 when packages wm: .llowed.
Oul of !he Iwelve &tiles wilh ihc IIlllCJ!
•
popilllions, Tuu and Florida are lbe
)' two dw do lKlI han some J)'I%em where

the executive director poslllOn al FILS
since August of 1993. FILS is a non·profit
law finn located in Gainesville, Florida.
"ith the mission of pro\ iding legal assistance 10 people incarcerated in Florida's
state prisons, county jails and mental
health facilities.
Over the last few }ears Glen as·
sisted FPI.P in several areas. He became
good friends wilh some of our stalT and
worked hard 10 keep FILS elTeclive for
prisoners in these limes of cuts in
legal assistance for all disenfntnchised
groups. Glen \\as always available 10 advise FFLP staff as "e pursued our goals
and took the time to attend most of lhe
rallies, meetings and events that have been
organized by FPLP and the Florida
Prison Action Network (FPAA, of groups.
We will miss Glen at FILS. All of
the FPLP staff wishes him the best in
future pursuits and thanks him deeply for
all his help and his care, concern :Ind
honest compassion for others.•

AROUND THE NAnON
by Mark Shenl'ood

funi1ieJ and friends (In direed)' ~ and

purd.s.K lhenuth'u personaJ iltm far ibU
funD)' memba in pilon. Feu of dlaie rwelve
IWrS still .no. p.ckaees 10 be &em directl)'
from, !be f..'niIy III !be Jrisoaer- SiJ: of ltae

awes allow flJ'lliliellll ~ue: lZ'NPl""'n1
ilmu from • dr::siJll.llcd 'ender awo""n1 by
dcpanmenl. and !hen !he 'ender mails !he

me

......
.... ...,

item 1O!he'

r.

--

""'-

Tezu•..._._•.•No
C.lifami
yes
New yorlt..._yes
PDidL--...No

Ohio.

_

_ ..NO- __

No
·
_._·
No
....Yes

MichiJ&l'-...NO-._.. ~ ..__ Yc:s
1Jlimi·
Yc:s..--_ _·

_Y:,::===;;,

PtnrIJ)'l,ania..No

YCI

Nri
CaroIina......-No

Yes

V'qfiia---...Jl'o
!ofwauri
No

Yea
Yea

(Sour1:e: FL Hwse: Com-clions Committee
telephone Illn"e)' cOfl6.Icted between Jul)' and
mba 1998.1

MOVING ON
During the laller part of May,
1999. Glen M. Boecher. Esq .. announced
that he was leaving Florida Institutional
Legal Services (FILS). Glen Boecher held

Arkansas- A 5300 million class action
suit has been filed on behalf of victims
\\ho received tainled blood from the
Arkansas DOC. Arkansas state prison
board awarded a heft)' contraCl to a Lil1le
Rock company called I-Iealth Management
Associates (liMA). The company received 53 million a year 10 furnish medical services to prisoners within Arkansas
prison systcm. In addition to the heallh
care services, HMA initiated a "blood
mining" venture in \~hich prisoners were
alTered S7 a pim for thcir blood. This fee
is approximlllely half the fee paid to skid
row donors. The company then- sold the
blood on the imemational markel for S50
a pint. half the profits going to Arkansas
DOC. This practice continued until
American drug companies stopped buy·
ing prisoner's blood because HMA failed
to screen the blood for viruses such as
hepatitis and IlIV. The company then sold
Ihe prisoners blood 011 the international
markel. selling 10 companies in llaly.
Spain. Canada. A Canadian finn. Conlinental Pharma Cl')'osan LId.. was Ihe
prime buyer of blood from (!'IMA) lind- is
now named by the recipienls of "tainted
blood" in the S300 million suil as Ihe

Page 7

defendant_ HMA is also being sued by
prisoners because of unsafe praclices in
dra.....ing blood, often drawing blood !'rom
muhiple patients wilh the same needle.
causing the transmission of Ihe AIDS
virus and Olher communicable diseases.
Severn I limes throughout Ihe years HMA
came under al1llek for contract violalions and allegations of negligent prisoner plllient carc, however, during
President Clinton's entire administration
as Governor of Arkansas, the company
was allowed to operate unimpeded. It is
suspected fhat these suits are only the tip
of rhe iceburg in whar appears 10 be a
major heaJrh scam promoled by Arkansas

payers money. The Arizona Supreme Coun
issued a report recentl)" that estimates the
new program saved over 52.5 million in its
firsl fiscal Ye<l.r ending in June of 1998, and
looks likely to reap greater savings in the
fUlure. The Arizona S.Ct. repon said it cost
516.06 a day for intense supervision under
the new progrnm as opposed to 550 a day 10
keep an inmate in prison. Of the 2,622
people on the program, the report said 77.5
percenl tested drug free. Judge Gerber, an
AZjurist for over 25 yenrs said: "Many of
us clime to the conclusion that we were
parading Ihem through the couns and prisons without solving the root problem."

DOC.
•
Law suits filed by Bobby
Franklin Simmons and Rid,1' Lee Marshall, rwo paraplegic Arkansas state
prisoners, alleging that Arkansas DOC
officials placed them in solita!)' confine·
ment wilhom adequate fncilities to allow
them to eat meals or usc toilet facililies,
were successful. After n bench trilll Ihe
eoun entered a judgment against Ihe
guards and assistant worden, awarding
plaintiffs IWO thousttnd dollars (S2,OOO)
each. The defendants appealed. howe\er, the findings and award of the lo\\er
coun were upheld by the Eighlh Circui!.
See: SimmollS \'. Cook. 154 F.3d 805 (8th
Cir. 1998)
•
Arkansas Law to Pennil Life
Sentences for Youths. Arkansas youngsters convicted of murder can now be
selllenced to life in prison pursuant to a
measure that was signed illlo law by Gov.
Mike Huckabee. Stllte law previously prevented children under the age of 14
from facing adult punishment. The Governor was moved to institute the measure
after two boys. Mitchell Johnson, age IJ
and Andrew Golden, age II, were found
guilty of shooting and killing four studelllS and a leacher in March of 1998.
~Iowe\·er. because of the laws protecling
children under the age of 14. the
youths \~ere sentenced to a juvenile
detention home where they will be re·
leased \\hen they tum 21.

California- The Prison Litigation Refoml
Act of 1996. WlIS held to not apply rttroactively by the Ninth Circuit Court of Appeals
inSwann\' Bunks, 160F.3d 1258 (9thCir.
1998). Swan filed suit in 1994, claiming
that a guard had announced over a loud
speaker that unless other prisoners "did
something" to Swan, they would not receive a fan. No injury was apparent as
required by 42 U.S.C. section 1997e (e),
and the district coun dismissed the suit.
However, the Ninth Circuit's holding overturned Ihat finding, stating that PLRA cannot be applied rttroaclhely.
• Michael Wayne Riggs, age 47. is serving a 25 year tenn in the Califomia Depanmen! of Corrections after being convicted of slealing II bottle of vitamins
from a grocery store. Because Michacl had
prior felony otTenses, the theft, that is normally a misdemeanor in California, was
enhanced to a felony because of his prior
record. This conviction in lurn made
Michael eligible for California's "three
strikes" law which was approved in 1994.
• Francisco "Paco" Gavaldon, a CAprison guard. was arrested on charges of
conspiracy and solicitation of murder.
Gavaldon was video taped by authorities
while arranging to pay another man S I,000
and a car to murder his estranged wi~.
Prison sources identified Gavaldon as a
violent guard \~ho frequently assaulted prisoners, and who was brought before the
legislature in 1998 where he refused 10
answer questions about his role in a
1995 beating of II CA prisoner. A week
after his arrest Gavaldon WlIS still employed
liS a guard, said prison officials, yet was on
lenve while awaiting trial in Tulare CounlY
Jail on 51 million bail.

Arizona- Arizona, the first state to begin
lreating nil ilS nOllviolent dmg offenders
rather than locking them up, says its new
policy of diverting addicts from prison
into treatment has already Sll\ed the tax-

F.P.L.P. VOLUME 5, ISSUE 4

Colorado- The CO DOC banned smoking in all of its facililies on March I.
1999. Tobacco sales were stopped in December of 1998.
Connecticut- The legislnture has taken
measures 10 Ireat non-violent drug
offenders rather than imprisoning them.
A bill passed by the legislature drastically cuts prison time for non--violent
drug offenders on the condition that they
undergo frequent testing for drug use.
Housing a prisoner in Connecticut costs
approximalely S25,OOO/yr., while the
drug testing program is estimated to cost
just over S3,OOOIyr. One legislator said:
"Our old policy has been a huge failure.
We need 10 measure its effectiveness
rather than ils sexiness at election lime."
• Fonner state probation officer. Richard
Straub, 63 who thrcatened to scnd young
male parolees back to prison unless they
had sex with him, was sentenced to J 5
years in prison. Hc was convicted of sexually assauhing young mcn from 1986 to
1996.
Delaware- Superior <:.'bun Judge Susan
DelPesco has proposed allowing female
prisoners to keep Iheir newborns wilh
Ihem in jail. She said the United States is
among Ihe few countries .....ho seperate
women who are jailed from Iheir babies.
Woman who are housed in prison seem to
be more likely 10 find succcss if Ihey etlrl
care for their infants,· she said.
Florida.- A service known as VINE Victim
Information
Notification
Everyday· has recently been crented in
Palm Beach County, and has been opemting in five other Florida coumies. Victims
of crimes, or anyone interested in a criminal being released, can rtgister wilh
VINE 10 be called when a. specific inmate
is released, however, viclims of crime
will automatically be informed by the
system "'hen an inmate is rtleased that
was involved in their specific crime.
There is also a toll-free number for roundthe-clock updUlCS on inmates status.
VINE was developed in 1993, lifter the
slaying of Mnry Byron in JeITerson
County. Ky. She didn't know a man who
had sexually assttulled her was released
(Con/lnlltd 0#1 po~ 11)

Page 8

NOTABLE CASES
by Sheni Johnson and Brian Moms
Fourth DCA Finds

B.F.O. Sentence Illegal
Glen Donald Frnhmllll eollalernlly chili·
Imged his habllual offender sentences, In doing

so, Freshman succcssfull) argued that his II FO
Kntcncet failed to ronform \luh (crulln requllements or,he II 1',0. stalule In effect on Ihe dale
hIS offenses \lelt commillcd freshman's \'lttor)
dId Il()( oomc: easy. lmually, lhe: Honorable Ilona

M Ilohne$. Judge ofw Circuli Court, In and (or
Bro....wd Count). Flonda, dOlled rchc( Fresh·
man appealed. On appeal. cllmg SImI! " Mon.
C/IlO. 114 So_ld 429 (FILI99.). and Hopping ",
Smc. 708 So 2d 263 (Fla.I998). for lhe proPOSitIon t/lIl ". sentmce thai fall! 10 comport "Ith the
sllllUI0r> or l;OnSlltutrOnaJ Iimll.:1lI0ns 1$ by ddimtlon '1Ikgal,'" Ihe Fourth DCA rc\'cnc:d Ilrld remanded "Jlh dm:cllons
In reaching lIS decision in lhis ellSc. Ihe DCA
m;ognl7.cd lhal !lIthe umt Judge Holmes denied
Flcshmlltl's molion, suitt Interpretations of the
dccuion entered In "Ckn'u " S/Ol~, 661 So.2d
1193 (FII 1995), (amncwsl)I appealed 10 IImil
the ddinltloo of an 'Illegal sentence' to one Ih:l1
(.'(eeeds rhe swulOC) muamum for the cnmt at
Inue" From the decISions entered In Monemo
aNi Hoppmg, ho....e\a. rhe OCA concluded that
the: Aoru1a Supreme Coun h:u tc:Jectcd the SUlle's
SUItt. rwrov.. and enoncous interpretallon of the
01\ IS Court's deeision
In thiS case. the Founh DC,\ found Ihat
Freshman's offenses "'ere comml\1cd bet....een
Ot1Obf1 I. 1989, and May 2, 1991. l1IId that. in
order to qualify for 1I FO. llealment dUling thaI
ume frtlme. the H F.O, Slalllle required the
defendant to ho\'e "previousl)' becn eonvietcd of
1.... 0 or more felonltS ill this state."
~
775.084(I)(a)1. flOrida SlalUttS (Supp 1988)
(emphllSls allded); see also. Haxttr \'. Siolt, 616
So2d47 (Fla.I993). POfruh \' S101t.511 So2d
91 (Fla 1st DCA 1990) ("1988 habnual offendel
Slatute IICCCSSIWCS l1II Imlla! findlllg thll the:
Ikfcndl1lll hIlS pKVlously been convIcted of t,,"'O
or more fdonlcs m thIS suuc -I, The Fowth OCA
liso fOllnd I!w "(IJhe orda deellllng freshman a
hltlltual offender s!'lo.... s thlt Freshman's ptc:di.
CIte offenses ....-en: out-of-state connC1lO1'1s." Ulllmalel)'. the Founh OCA found FreshmM's
lifO sCIltences "Illegal" because the "record
affinnatllel) sho....-s a failure to compon .... Ith the
SlatutOf)' tcqultc:menl$ of the habitual offender
Slall/le "See Frohnwn r Swre. _
S02d
- ' N FLW 0107 (Fla. 4th DCA, 3-17-99).
1Comment; Although not mentioned Ibo\"(.
the Fnurth IlCA allo nOIrl.! that. In S/u/e I',
Johnson. 616 So.2d I (Fla.199J). Ihe Floridl
Supreme Court found that the 1989 amend.
menllto the habitual oITC'nder statutC' "iolated
the sinGle subjecl requirement of the ~lorida
Consrllution, Ralher than fOC'u~ing on rhe
uneOIlUltulionl1 single subject ,iolation, suf-

F.P.L.P. VOLUME 5, ISSUE 4

fiee it to lay that the 1988 o·tniDn of tbe habllual
offender uatult, ~ hleh became crftetio'e OetobC'r
I. 19811, and rtmalnet! In effect unlil ,\h)' 2,
1991. did nOI authorize II.EO. trealmenl based
011 oOI·of·SIMte eOI1 ..lellons, lIeclluse Fruhman's
ofrrnlu were eommllted durin!: the rtlevant
II Indow period and lhe Srale relled on out-ofSrlle tono'ictionltn IIUallfr him IS an II.F.O.. the
''-ourlh DCA found that the II,F,O. stnlfneQ
failed 10 C'omporl .... i1h the requlrel1leru.I of the
II,F.O. statute and thatthr lentelleQ are. Ibert·
fort, "iIll'lal." Ho....·tl(r. in Spdght 1'. Start, 711
So.2d 167 It·la. lsI DCA 1998). r~l"itw ptnding
IFia. S.CL CaR No. 93,207). rd)ing 011 the uriel
narrow definition of an "1IIq;11 sentenct" Ihat
follo.. td the drtisioll tntercd in Daris. tht Finl
DC\ held thai "relilllce on In impropc:r predi·
Ult orrmse dotS nOI render the Irntenet 'ilICCII'
for purposes of determining IIhtthC'r the error
111M) be mind for Ihe firsr tlmr 011 appeal."
S/H'igh/J. al 169: Jtt also. 80l'tr I', State. 24 t'LW
mOJJ (FIR, Jd DCA. 4-28-99) (Idjudlcation of
defendlnt I I an hahllual offender II 1I0t e0l:nlz_
ahle under mOlion 10 corfUI IlIeg.1 Sfnlfnee).
Unfortunately. lhe 1I0nr Court's rtce", anal)'sil
could nr} tuil) innuence the lIa)' the tlorida
SUllfeme Courl'S handlu Sptighlt.-bml

'·I.F.O. Adjudic:lIion Cnnnol Be
Challenged Under Rule 3.800(a)
Pursuanl 10 Rule 3 80ll(1). lola R Crim P.. Jesus
Bo,er IfIUcd thai he was enllllcd to tc:hef because
the prC'dieale offenses ml10dueed at his II F.O sentcncmg hearing failed to sausfy Ihe statutOI"')
sequential conviction requirement. Roben M
Pmeho. Judge of the Circuit Court. in and fm Dade
County, Florida, denied the mollon and So\Cr lip'
pealed
On appeal, Ihe Issue addressed by the Third
DCA \1'0$ 'whether 1\ defendlllll lIlay usc Flurlda
Rule of Crimmal l'mcedule 3.800(1) to challenge
[anI hablluIII offender adJudlClilrOn" In Icsolvmg
the Issue. the Court's ilIIal)'lol5 found thllt

Halmuoll:ltflOll U a twOoSIC'P /NOCC'S.I in 1M firSI
SIC'P, 1M dC'/endonl IS adjlldlrtllCd /0 lw a habltuol
offiNhr Once- thaI II dOM, 1M trwi C'OUt1l.:na>rs
whO/tM permISSible iC'goi ....unmum ma), ~ In tht
ucond slep. lhe C'OWllmposu unlCIICC'.
FOT Rult J 800(0) purpORs, 1M dljfC'nnCl
bttMun the fll,'0 Sltps lS Imporlant. Rule 3.8oo(a)
U by IU urlfU confi~d to (/llJliengmg on ~I/ltgar
sen/lIlU. ImpDSlllfJlr 0/ sen/enu O(tUrs In Iht
suond sup 0/ thC' habuual,:ulion procns nit
d''flndllnl's rtal lOrge/lit IhlS cose IS nOI the sec·
oml slep bUI Ihe firsl' lhe adjudlcolioll o/Ihe
defendonl as on habl/uni offelldrr.
The Court not~ thm uhhough "the viability of
pndlCale oITenses used for hllbltua!iulion 1:Sf1 ftc:quentl) be delennllled from the face of the record;
eircullUtances do e;cisili .... here an evidentulry
heating would be ntcc:sllll)', Ultlmatcl)'. the lll11d
DCA concluded lhal "an lllack on the habItual

offender adjudication ii OIIe .... hich mll51 be brought
undel Rule 3 850 and lIl.I) noc be brought unda Rule
3.800(a): In reaehlllg its deeision 111 Ih,S ClIK, Ihe
COlIn certified dlleet connlet ....1th the deCisions en·
tered in Judge v. Slme. S96 So.2d 73 (Fla 2d DCA
1991) (cn bone): Ff..shmarl \" Slatt. 24 F!.W 0101
(Fla. 4th OCA, J-11·99). Bell v Stale, 693 So 2d 100
(Flo, 2d DCA 1991); and, Bottlho v StalC', 691
So 2d 648 (Fla. 2d OCA 199n. The ThIrd OCA
affirmed the olda den)'mg Bove(s Rule 3 800{a)
motion See: Burt' r SUlfe. 24 FLW 01033 (Fla 3d
OCA.4-28-99).

What Happened To
DiscTelionary Jurisdiction?
William GIlr)' 1IllO'IId filed a IITII pdlllon
seding 10 Ino'oke the diseretlOllll) JUftsdlellon of
the FlOrida Supreme Courl lIuvlld. 5ubmlllmg nu·
merous factual allegalions III support of his clarm,
alleged that the I'lXlC lIleoneetl> asSIgned him 10
Close Managemenl Status, The 1'10 S.CI, notmg,
among other thinp, that llli aClion "should not be
consl/ued lIS an adjudicatIOn 01 t:OITIment on Ihe
menlS of the petillon: dcclllled to exercise Its dlsclelionDl) JurisdIction and I/'IIISfClTcd the case to the:
NmelCC'nth Judicial CirCUlI COlIn Significantly. the
Fla SCI. IUlnounced that

/I/n lhe fumrt...·t "',11 Itk-... ~ tkdllli! JlIrwlellon
andlrons/tr OT dlS/fl/SS wnr pcll/lOlU "'lid/. Itu 1M
pffunt~, ralSe Ill/Ulanllol usuu o/focl OT present
tndn'lduolt:td ISSlIlS lhal do nOi nqllin ImmC'dlillt
,C'soluIIO/I b)' thlSCOW'. OTun nor thC' I)pt' 0/ cas,.' m
"'hlCh an oPinIOn /,om IhiJ. Court lliQuld prtJ\'Ide
Important gIlldtng prl!fClplu lor I~ ~r roUfU a/
Ih,s Slat..,
Aller the majorit)· of the COIlr1 finished .... Ith
Its feeble allempt al Jusllfylllg lIS aCllons. the
Ilonorahle Ben I' Ovellon, Senior JUitice. di~·
sC'nted With \\hat appe:l.ls to be a cold hald fael of
l'IoridaJUSl1ee, That IS. Justice O\'erlon notes thut "the
rnaJont)' hu 5ubstanually redueC'd the aeeess to thle1
COUll for habeu pc"l1011eIS. tt has. by 1llliloplnlOl'l.
re\lnllcn amele V. !Cetion (3)(b)(9). Florida ConsUtu·
1I0l"l " Justice: (hCftCJn applmltl) remembcnd hIS oath
to prOte<:1 the righlli of the eltlZtrl$ of thIS Stlle Sec
lIummf v Slalt. 24 FLW sl09 (Fla.. S-6-99j

Court Record
Encompasses Jail Record
In 1990. PUI1UDllIIO a plea of no conttStto t.... o
counts of aggmvlted ballCI)', Ihe Eleventh Judlellil
Cueun Coun. m and for Dade County. Florida, placed
Manucl Hidalgo on probal1on, Subsequently. III 1993,
Hidalgo vioilited that probahon Ilnd was SC'nlenecd to
a four.and-one-half)'Car prison term. The eoun. how.
e..er. in sentencing upon the re\'ocauon of the ptoba·
lion. OIIly granted eredn for the tIme thaillida!go hid
SC'l'\'ed lmmedialely prior to the rC\'OCIllCJn or his
plobation. In other ..'Ol"1k. the c:oun f..led 10 grant
lIidalgo any crc:dll for the lime he SC\"'I'ed Incareented
pnor to actually being placed 01\ protwlOll

Page 9

In 199&. Hldalgo, .... ho IS .neateenltd u Ma)o
COfTtellOllal InslIIuuOII, filed a pro se motion seck·
InS. ImOlIg ocher thmp, eredll for lhc: lime he
seried lnearectaled POOf 10 beIng pllCed on proba·
1l0fl The Hooonble Ellen 1.cdfield, Judge of lhc:
C,rculi Coun. 6cn.ed !he rnDCtnrI and Hu;1llgo Ipo
pealed On IIppeal, the llmd OCA trellted Hidalgo's
rnotl(lll as a moltnrl filed punuantlll F10llda Rule of
Crlmmlll"rocc:dure 3 llOO(a),
In SIDlt \', MD~lnO, the Florida Supreme: COOrl
held that "credit tIme ISSUes arc coglllzable In I rule
3 800 mOlion when it is affirmatillely alleged that
Ihe COUlt records demonSlrote on their face an enll·
tltrnem 10 rdier" 714 So,2d 429,lIt433 (11]1I1998)
In this ClISC, the Third OCA, noting Ihll "It)he
ManCinO dcl:islon makes 1I strong polu::y stlliemeni
that 1I defmdant should be grllnlcd credit for all time
srned," 11111\1) reJecled the Slates request for "a
nlUTOW reading of the Manclna dCl:tsion."
The Thud DCA found tIw "In some p1rU of
HOfub.the JillI record ofa dcfendml's incarCCflllOl'\
IS ph)'S.caIl) IIlt:orporlllcd Into lhc: court file, .... hIle
In other pms of lhc Stale It IS not" 1l1c court.
ho..C\er, concluded thlll "enlltltment to [jail] credll
should not depend on the ugalles of !he Ita!
reCOfd'''tcplng S)'Slem" Uilimalel)', the Illda/go
CClUrl announced Ihal "a defendanl'$ JIll cald
[retltehng In and out dales of Incarcerationl sllould
1M: treated as II courl record, .. hethel or nOl lhe jail
card has ph)'Slcally been incorporated into the court
file" Sce fIId/llgo 1'. SWlj', _
So.2d _
24 FLW
D776 (Fla. 3d DCA, 3·24·99)

FL Supreme Court Restricts
115 Habeas Corpus Jurisdiclion
For Pro Se Prisoners
On Ma) 6, 1999. the Flonda Supreme
Coortwucd a SIX to one decision informing Flonda
pl1sonrn that no longer \I Illlhat Court entcnaJn plO
SoC Ind.gent pnwncrs' pelIUOIlS for ClI:u.ordl/llr)
thai conlaln sulmlntlallS$ues offlet. presenl
Indl\lduahzcd l$sues that do nOi requin: immedlale
r(1,QlutlOn, or arc rIOl the t)'PC of cues In I\hleh an
opmnm of that Court WQuld provide imporllll1l guidlOll pllnclplcs for O\hel stale tourts In O\her \I'Ol'ds,
the Suprcme Courl has spceilically announced Ihal
It "til no looger accept dlsereuoollf) JurisdiellOn in
habeas corpus pelltlOOS that do not lequile
·,mntcdllllc resolulion" by that Coun; if llII(lthel
kmn COlIn. appellale or CirCUli, can hCU" the case,
the FLS Ct .... 111 not.
Thil de'C1SJOn .... as rrndcrcd In a casc .... here
FlonJa pllsonef Wilhllnt IhuVlrd filed an
-Emergent) PeulIOfI fOf Writ of Habeas CorpusdllCcd) to the FL S Ct tf),"g to challenge hiS
placement on Close Mllligement at MlUlin CI The
penuon SI:l OUI numerous factual a1lcptions The
Coun notcd Ihallfanard alleged to hale ClI:hamled
all wmlnisl1ll1i\e remedlCS before filing Ihe p:hhon.
.... Iuch If he had rIOl the Coun would ha\'e simply
dismissed the petition for fllilurc to exhaust Ilul,
Illn'ard had nol e\en allcmpted to liIc the petitIOn
m the ClfCUlt COllrt whclc hc \I'M incarcerated before
tiling \11th lhe Suprcmc Coun. 'fhis,the Coun found
unac,"eplilble
The Supreme Coun noted that in the last
)ear alone o\er SOO petlUonS fot CX\l'aOldln~
tchef ha\·e been filed IIllh that Coun. With the
o\crv.hclmmg maJorlly of those cascs being from
prisoners secking to In\-ote!he Court"s discn:uOllllr)

""1S

F.P.L.P. VOLUME 5, ISSUE 4

JUllsdlCIlOO M3JI) of those cases. l'lOwe\er, "GUld
require fact·findlns. \lhleh the Supreme Court IS not
10 a poslltnrl 10 handle Such cases should be Iwt·
died b) the CIrcUIt COUrl .... hieh IS '" the besl poslllOll
10 resohe flCl·findlng lSSUC:S, staled the S Ct
One jusuce. Ch crton. filed a dlsscot to the
majority decis1Or1 Juslll:e (h.'ertoo' s main cntItem
.....IIS thaI the ~t)"S declSIOll ....111 be to deny
habeas corpus junsdlctlon to mdw.dulll petitioners
.... 110 file such petlllDnS .....llnoul the help of a
laW)'t'r. "Ill' thiS opmlOn. lhe majorIty has
substantially n:dueed lhe aeccn to this Coun for
habeas corpus peUllonefS
It appears to me lhlll
from now on the only hllbcas corpus pctitions lhis
Courl will consider WIll be those riled by attorneys
for Ihell clientS. It Will hale the effcel ofden)rng
access lO this COUrl: Chcrton slllied In his dlSKnt
The l/U.JOIl1)- transrnml Han-.rd's petillon
to the circUli coun (or Martin Counly_ Further, and
Slgtufiamll)', the Cowt noted tlW upon the circuit
COta1 rcccI\"ing the CIISC, "If it IS determined lhat a
filing (ee is appheable 10 this petItion, and .f 1JIt
petlllOl'lCl' "'1shcs 10 procttd In f0fT\\3 pauprns In the
transferee COIln. an affida\lt of IOdigent)- and 1(.
cornpllrl)'mg documenlillon shall be tiled by Ihe
petilioner '" the tram(erce court" That clelUly \las
an rnstlllClIOO to the ellCUII COIIll thaI the pellllon
liled by Han'ard prnbabl) should nOI be lIcaled as
one for habeas tOlpuS, but for mandlUrllls, In lhol
HaT\'llId was onl) seekinS relcase from a mole re·
strictive I)'pe continement, Md nllt flOm prison itself Sec: HDn'Ord \' Smg/tll/')', _ _So.2d _ _.
24FLWS209(Fla S/6I99)

FL Supreme Court
Extends Self Defense
Nonrttrtat Privilege
On March II, 1999, the Flonda Suprerne
Court ltalI"iled thl! lhc I..... I1oc:s not Impose a dut)
on people 10 rClrcal from their home before resornng
10 dcadly force rn sel(-defense agalnsl a c€KM:cupanl
of the home Of inVitee into the home, if that force is
nteess&r)'to p.e\·ent dealh (lr great bodll) harm Thc
court dceided Ihal Ihele IS onl) a limited dUly 10
rellC/lI I\lIhlO the reSldenee to the utent reasonabl)'
pOSSible, but only lhlll fllt belore rcsonmgln deadl)'
forcc lO Plolect aprn~t death Of &,e;1I bodtl) hillm
That deCISIOn was 0 It'Sull of II ClISe broughl by II
.....o man. Kathlccn WeIand, \1110 had bcc:n convlCled
of killing her hUiband "'00 she bad elalmed had
llbused her. Weiand hid bcc:n released (rom pusan
aller being grunted e.'l:ceull\e clement)' liom the
gO\emor on December 23, 199&, before her appcal
came before the hIgh eoun. bl:t the Supreme: Coun
relllned JurisdlClIOn o\el !he case 10 decide .... helhn
the JUI) in her casc: should halc bcc:.n read mSll1lC1I01lS presenting the nonletrc.ll pmilege as Silted
abo\'e ",hich had nol been done The COUll dedded
aftel much dlscusslOO of CUlTtlll unde:rslancling of
bllllered women s (or spouse, or co-habllMts) syn·
dlome thaI such rnsuucliom should be offered (or
lhe jUl)' 10 consider \lhen self·de(ense IS raised
Claiming ajuSlifiobte usc of fOlce
In so ruling. Ihc Supreme Coun rcccded
from 'IS prC'·lous holding III SlUle v. BobblT!, 415
So 2\1 724 (Fla. 1982), thlll had held that no sueh
IOSlruCllon must be gl\en 10 a jill) The COlIn lllso
plUllall) n:lKaled from Htdgu II SIDIi", I n So 2d
124 (Fb. 1965), on the same: issue The COIIIl. ho.... •

n·n, !pcclficaJly hcld Ihal thl5 ne..... ruling will onl)'
appl) lO fUMe cases and cases pendIng dllecl rev,ev. on the dale of IlS decision and that It .... ,11 not
appl) rcuD:leulcI) lO Ca$cs that ha\e already become final That pan o( thIS clwlgc In the I
111
lca\·e many, and mosll) female, pnsonrn lInoul
benefil from thIS deciSion..... h;ch IS lI1ICOOsetonable.
See. II'~Ulnd \' Statt, _So.2d _ , 24 FLWS124
(Aa. ]/11199)

Application of § 57.085, F.S.,
Requiring Indigent Prisoner
10 Meet Cerlnin ItequiremclIls
NOI Ex POSI Facio Vio/alion
OIlS Mack VlClt:son, 1lOI0llOUS for dC\·c1oping outrageous lI!Id fllllolous legal theones that he
lries and gets otner prisoncn to try, author of the
lOfamous "did" aq;UmcrJI thaI has resulted 10 numer·
ous prisoners balling theit cases procedurally =mi.
.....as sllipped by \he Aonda Supmnc Coun for .....JS!109 their lime wllh llIIOther bogus ItgaI Ihcor) In
this casc, V.cbon filed a pditlon fOf ....111 of man·
dlUrlus In the FlorIda Supreme Court agamst HlIf)'
Slnglcl:uy. former FDOC SterCllll}
Vltlson did nOI send the reqUITed fihng ftc
for the filing The court orden:d him 10 nIe an
nffidallll of Indlgenc) ..... hlch Vickson did On Ie·
Vjell of thc IImdn~il, howcI'Cf, It was nOlcd lh~t
Vlcl.:son had (lliled to comply with § 57 08S(7). FS,
.. hich requires a prisoner seeking to prOCC'td 1$ an
mdigent and \lho hll.'l been adjudicated indigenl
t.... ice In thc past Ihrce )~tlIS to liS! and attach a COP)
of all Judicial proceedings Ihnl commence or dispose
QflcgalactJQn filed b)' the prisoner In lhc: pl$tli\e
)UlS The COIln ordered Vltbon to comply .... Ilh
lhal n:quu~menl, SlIIa: he has filed numelous pro se
Indigcnl I(lIons In the IUS! three)ezI'S
Vidcson filed an objection to that order,
claIming that § S70gS{71\ ioIltes the Ex Post Facto
Clause because hIS enm: .....1 $ cornmmed before Ihe
enllCUT\CTlI oflhllt SlalUle. The SUPIeme: COUrt 00led
thaI claim was WIthout 3JIy merit. !he Statute does
not in llny manner directly increllSC a pTl$Oner's
erimmal senlence, nor does.t constltutc punishmcol
The court, pllllenlly, explnlll$ thAt the pur·
pose of that statute .. as to reduce rmolous, e.~ccs·
Sl\e lawsullS by pTlsoncrs such as Vlckson In a
Footnote Ihe coun hsts at least 20 Icgal aClIons Ibat
Viekson has liled In the Flondll Supremc Coun
alone in the pllSt fi\'e )Ct1n
Withholdrng more $CI"IOUS santtiOllS I! thiS tln\C, the
courl detemllned that Vlekson from this pomt for·
.....a rd mllst either sUlttl) compl) With §S7 O&S(1).
or pay the reqUIred fihng fer: (or any furthel actlOllS
thai he nIes '" any COUrl If Vicbon docs nOl.
comply, an) actions he files will be lrnmcdllldy
dlsmiS5Cd, Sec "/Chon II Smgltlary, _ _ So_2d
- - - - J 24 FLW S175 (HI.. 4/6199).

New Enlry for Appeal
Allowed Where Prisoner
Claimed Confinement Situation
Delnyed Notice of Appcnl Filing
FlorIda ptlsoner Leo 1I0Ihngs"'"Drth had his
lIppeal of an order denymg a petitIon for wril of
mandamus dlsmlucd fOC' bemg untunely filed but
reech·ed dlrt:CllOnS from the appeal tourt in how he

Page 10

ffill!tl be lIble 10 obUIm 11 new opportumt) to file a dismissed "'lthOUI SWlIlg O'llannl.han an opponunotite ofappcal m hIS parlleular cucvmst.antes. nil)' 10 amend. If he could and sallsfy thllt requlre:llolhngNuth had • peuuon fOl' • \lnl of ment And enn though O'Hanrahan apparent!) did
IlIIndamus denle:d b) the: clInut coun on Deeembn not appeal on the: dismlual of the Eighlh Amc::ndment
). 199& lie dId not file I notle:e: of appeal unlll e1l1lms. ...·hlth woold nOi require: such Slale
JanlW) II. 1999, SC\rnll da)1 O\'er lhe: )0 da) mand.aled PfesUII requirements. the appeal court de·
limn.allon penod for filing a nOIlc:e of appeal The Icmuned thalthosl: claims ma) stili be vllIble:.... h,le
appeal toon ordc~d lh:n he: sho\\ tallSe: \\h) lhc notlllilhe: "c:onfllSinJ naturc" ofO'Hanrahan'S plead·
appeal should nOI be dismissed II unlunel)' filed and ings The appeal coun f11l11) reJCC'ted the challen~ of
Ilolhnpwonh responde:d Ihal lht nOllte of appeal Ihe COllSlllUtionalily ofllle: prcsull stalute to mtafCn"'"1J nOI handed o\'er [0 prison omtutls unlll January IIled. pro se. prisoners
7th. but Ihat his mablhty 10 Ilmel) mall Ihe: nOlite
The appeal court AFFIRMED in part. anti
"'11I due 10 being In eonfinement "he \111I unable 10 REVERSED and REMANDlll> m part. 10 allow
olHlln nC:Ce:SSllI)' posl.lIge to mall the notice ofappcal O'ilanrahlln a chance 10 amend hiS "peluion" if he
despllc his fepealed efforts 10 do so.'
tan Sec O'lfllllrohtlll ,. Moorr. el a/
So 2d
The appeal coun decided thai Il Ixked the _.24 FLW D9S4 (4th DCA 4114199)
autool'lt) 10 grant a bela[ed appeal betause "the
proc«dlngs. belo... W(l'e cI'11 In naturt," BUI the [CtlnmmI"'" asc: II I>CII ,ncluded III NoI.ble C..c:s ~ause
coun sUJ&CSIed thlll Hollings...uth could sull file a of III pKCc:dcttiaI \alut. _ btc_ 11"'10 affect lit}' Ilpllf..
I 540. F R CI\ p. relie:f from Judg.rnc:nl mouon m c:anI fWIIlbn of pruoaom Thli II indudc:d III bapcs !hal:
f10nda pn~ ..."" may conIcmplaf~ a IW~ Iol;t_ fOf
Ihe CI!CUII C:OUrl explalnmg hIS mcullWanees. and If mtdocaI maIpfactJc~ ..11 be ...... ~ of tbc ~ prCllllf
lha! COUll \lIClIIe:d llle: order of IIClual and e:nlered II .cqoaarc:mmll dw e:USI If dq- ~ produa a 'mflCd.
fIC\O ordet of denial then a I\c:\\ enlt) would be t;OITobonun& -.!M:aI e,peru op&..- 10 "'PPOfI tbcIr com...,0 be fbsmIsscd And tbcy roukl
aelUd ... hen' Hoillngswonh could file a lLmel) pIauII. Ibm lbe _
petJUon fOf tenlonn. rather than appeal. pursU&1lI10 pouibly be UDCbOIICd f(lf lihllJ • &1,~ 1.1"'1'/11•• eQCt'ol' a
~It}· v FlorIda Parole CommWlon. 720 S.2d 216 DR.1IIIlI h3,~ 10 do f_ 1Il1;Oll/'.- and :Il.Ift"n lou of pili
(Fla 1998) Se:e: Hollingsworth v. S:t:=tCI1lD. ume fOf WIle: In most cases pnSOllof1I ''III no4 be Ible to
.'I1a wc:h 1/1 open llpII\IOfI bd(lfe fihnllUll' "hlch IS "hen
MOOfe, _
S 2d _
N FLW 01011 (lSI OCA
II hal 1lI be obwnc:d. un.lIl') FIXX.' Ib:IOfI"'~ I>CII ll'1Il1 10
~l2o,.W) .
PfO\'dc: P"\C apl/lJr onc ofrllClf 0"''' lk ....Ule of. rncarch.
and cllII\ply w,lh.1I lepl rfilUlltl1lCnls bcfOf~ film, JUlIS
no....adayl. III )-011 lJ\/IY Ita,·c 10 surrn KlIOIII cool<'llU'Cflf:e....'1
Medical Mnlpr3ctitc J~rcsuit
I1e\Oo

RClluirements 01 Wni\'cd for
. Prisoners
Florida prISOner Kn In O'llanrahan found oul
IiIl~mJ medltal malpmellte
J.U1l$ III swe: coun IS not a sImple: proc:c:dure:. and
th;1l In most mnana:s. because of cefUIO presulI
ItqUlrntlenlS 10 Flonda la\l. IS Impossible
O'Il:I.nrahan filed something called a
"PeullOll fOf Profc:s.slonal Malpfllu:llee of a Medll:lIl
Nature S«l.lIlg Relief fOf Damages et d, and
Proftslilonal Ne:gllgence." (such IIlcompelenl draftIng Immcdlalel) phl.ced lhe coul1 on nmice: thaI
O'lIl1mahan had absolu[dy no Idell "hal he WllS
dOlllg}. ag.1mst scvernl FIXX' employees. m;l.Inly
mcdtcal slaff Despile the litle of hIS "pcliuon,"
O'ilaurahan also c:lmimed m addlltOO 10 malprncliee
Ihal hiS Eighth Arncndmem ri&llts werc \';olll1ed In
an anempl to salisfy Ihe Slllle prC:SUII Ie:qulfemenl
of§ 766 202(S). F.S. "hlch re:qulles a \'cnfied,
COfTOborlhng medIcal expert 0funlOfl thaI medIcal
nalpfaCllCC' has occurred 10 aecomp:lll) :III) action
fOf rrI2IpractlCC' in orda to substanllalc: me(hc:al
malprltu« c:lallJu. O'Uanrahan filed an un\tt1fied
Ieller ...mlen b) a former dOC1Of \lho no longer
pratlleed medICIne: The CirCUIt eoun d,smlsscd tlle
"petUlon" \\Ilh prejudice based on the fallurcc to
campi) \11th the: presull requlrcmcnl
O'Il;ulfahan appealed. tl"mmg thai noI onl)
\1M II error fOf Ihe: cirCUli coun [0 dIsmiSS the: CtlSc:
on lhe prc:sull requIrement Issue. bUI Ihe dismiS5111
... llh preJudice: \I"lIS error. and lhat Ch~pler 766. F.S..
as apphed to hIm. lUI Intll.ltClllled. pro St c:1aimanl
\111.I unconshtutionalns den)·mg access to Ihe courl
The appeal eOUr1 affirmed the dismissal as con·
ccmed thc: flulure 10 suusf) tht presull requirement
of produclnll a \'mficd. corroboralmg medical experTs opinIon as 10 1hc: \ "blht) of Ihe: actIon. bUI
held thll lhc ae:t1Ol'l should not hne bttn

the: Jurd \la) thai

F.P.L.P. VOLUME 5, ISSUE 4

Deprivation of Visitation
With Minor Child Action
Not 1\100t, Action May Be
Amended 10 Slatc § t983 Claim
Ronda pnsollCf Rand} Spc:1lCC'f filed a pelllion fOf deelamlOl) judgment pUfsuanllo Chaplet 86,
F S. against a FOOC thWlfitSlton offiea fOf un·
I/I\\full) de:pnvmg him of hiS \ISUlIUon \llIh hIS
children b) a misapphcatlon of Ihe mlllOf child
\"I,Sltalion fCSlflCliollS adopted mto law dunng 1996
Ihal only applies to Ihose: p,isonc:rs \lho hlI\e been
con~lclcd of II KX Clime on a child under 16 )'ell.l1
old Spcnctr's detlarlllOry JudlllllCnt pClitlOn named
tlnsslfiea\lon OmCef 0, Gonlll!n, 1I5 haVinG
"rongfull) llpplied Ihal law 10 him 10 Jul) of 1996
and fcSlnelcd hIS \iSII/lIlOl1 l\llh his childfen for
aimOSI the: n!:Xt 1'1'0 )e:4rS Spencer Im\lall) soughl •
declaratIOn for lhe: cnculI eoun thaI Gonzalez III IllS
offielll tapllCl\)' had ""OIlgfully applied the lal\ 10
him and sought IIlJunCII\e ,elief enJoimng Gonl.llc:z
from such wltll'lgful action
On Mardi 2S. 1997. hovoC\a. Spencer
sooght to amend his petitlOfl to allege the depmallOl'l
of fedelal tomlllunonal IIghll undel ~2 USC
§198J and requesl c:ompenuIOf)' damages from
Gonulez III hiS mdl\ Idual capatlly Spenter fikd a
mOllon to amend \I Ilh I tOP) of hIS proposed
amende:d pelillon anached The: CirCUlI coun did not
lalte any aClion for alrnOSl1i )eltr. unhl Gonzale:c filed
n motion to dISmISS III Ma) of 1998 claiming the
sUSpenSIOn of visit/lllon p'lvllelltS had finnlly hecn
IiRcd and GOnla!c:z had becn transfe:rred 10 /lnOlher
inslitution. thllS mooting the action The circuit cOUrl
Ihen mD\e:d on Gonzalez's motIon and dlsmlsscd the
atliOU 1lli mOOI findmJ thllt the,e was no 10ngCf II
bona fide. aelual. or prCKnt nced fOI deelaratOf)
relief and 110 longef a bona fide dispute bc:t\l'tt1l the:

partieS (these: elements musl (.'tisl 10 sc:ck declara·
lory Judgment).
Spencef appealed the: CI'CUI! COIIn's diSmIssal alkg.lllg that lhc ClfCUI! c:oun ened III illS'
mInIng the pelttlon ""thout hl\-Ing provided
Spenter lea\"( to amend the: petlUon lO add the: f
198) c1111m. The: appeal coun llOIed Ih;1l Spc:ncn had
properly apphed fOf lhe leale: 10 arnCfld. thaI he had
no! abuKd Ihe pnvllege to amend. :md Ihat. "rf. lIS
Mr. Spenter alleges. Mf GonUIC'"L dcpmed him of
visilallon wilh his children for o\e:r a )elr under
color of SllIle law m Violation of fe:deral tonStllUIional rights. Ihc question of entilltmenllo compensatory damagcs under U U.S.C § 1983 IS nm
mool" The: lIppeal eoun REVERSED and REMANDED the casc: with directions tll:u on lemand
Speneef be allo....ed 10 ame:nd hiS petition 10 raIse: lhe:
§ 1983 tlVilllghlS vlolll1ion chum. Sec S~nar I'
Con:alt:. __ So 2d - - ' 24 FLW DlooS (lSi

OC'A

~1I6199)

[e-m. II d ~&C$hIIlf 10_ a F1lInda IIf1ICl"CI" C'Of1T'Ctl)
USC' lhc: 'U) oKNl and oftm O\alookcd or Ipnd pSIaaI
,chICle: of decbrarory Judce:mm The adnaul"l of ~
tClly Judpac:allol;t-. ""'" .mc1~.rehef p t I _
.-c mormous. II" a propnl)' dialled pcwan III ca...phallC~
"nil Cha;>ln 16. F S. d filnl And. pI:lI'SI,OIIIlllllhc dc:cbnlrClly Jud~l 5UI~Itl. 1\1\) utraOfdl/1M)" rellCf may lull be
s.nupt In lhe: samt Iol;tIOl\ ,f • ra,onble decbrluOf\ IJ ~
111M<!. Spencer also ~" !hal t 19U _ _ 1M)' be
fikd In Jlal~ COWU, ... hlch prO\1dcl many ad''''''lBltJ '"
nWl) inl.llnC~5. bul ...·h"h IIlOII prllOOt'll S«1n 10 bt loflllly
~~"'"alC of h IS also reflcshllli 10 ItC IOfIlt('JllC 10 al Ihc)e
cl/lUlfiClllioo offieerl .. /10 11l1\~ bcota .sppf"n& lhe eMd
,unahon rnmellOO fO many prlIOIlCtIlO "h.om.1 doc:Il>CII
apply. Eu:r llIICe t/uolla...·.19U 09(1)(n). F_S .... ~ adnpfed
II hu CIllIc:d lIUfbm& buI problems and ~ The
ml~pphtllllOl\l arc I1Uf 1lIfP""IlJ. 1I0\"e-n. as IDOII as . .
1.1.... "''CUIlnIO ell'"" lhe FDOC mhcr !han maJ,;.",&. casc-b).
QS<' IlICj",dual dna11llnllf_ "hc1bcr Ibc ta" appbcd to a
pnIOIXf sanpl)' appI.ocd Mto all prtIODnll
lmd 01
SCJI~ offcmc IIIIlIleft 1aIIClt .-nUlCd or O\~ cbSS>flClllOl\ olfocCQ 10 If)" 10 IOl1 M OUI PafIIp5 follo\o-.. lhol
ICtIOU:I dWlcn&c: by Randy S9c:Dccr!be ClIIISCqI:ICIlC of!be
IIICOIIIPC1I:1U IwIdhn& of l/1II 'uy IlIlpCmIIII ~ to - , .
pnIOlIC'fl ...,11 cause II'IOI'c Clrtful fe-1C.... aod appIlQllOIl of
t!lIS law thar is: QllClflOf\/lbic IllCir·lj!

",1:1I.,.

Fl.A PRISONERS WITH CHILDREN

• • •
am.nREN

wrrn PARENTS

INCARCERATED IN fLORIDA

PRISO~S

Page 11

(CQll/mwdjrQm fNJ~ 8)

from custody; he filially shot her. The
VINE sySlem is operating in 31 states and
in Monroe. Collier. Dade. Hillsborough
and Du\'al counties in Florida.
On April IS. 1999. the Florida
•
Supreme Coun accepled jurisdiclion in
the legal challenge to Constitulional
Amendment
No
2.
titled
npRESERVATlON OF THE DEATH
PENALTYn. \\hich passed into law in
last November's eleclion. Allegations
were Ihat Amendment 2 WtlS merely a
plo) by FL lawmakers to block the S.Ct.'s
cffons to do away with FL eleclric
chair. deeming it crucl and unusunl
punishment and appointing lelhlll injections as Ihe proper mcthod. The Amend·
ment changcd Ihe langullge of the FL
ConstiHUional definition of cruel or un·
uSllal punishment to be in accord with Ihe
US Supreme Court's jurisprudence. Thus.
ensur;ng thaI an)' fulure finding of\~hat is
cruel and unusual punishment must be
detennined in accordance with the US
S,C!, The Amendment enshrined not only
capitol punishment. but the electric chair
as the method of administering it in FL.
Georgia- Fulton County Jail authorities
\\ere told 10 provide adc-qullte lreatment
for its inmales \\ho ha\e tested positive
with IIiV. a federal judge ruled on April
16. 1999. Fulton County Jllil is presently
withom any fonn of system to stock andlIdminister drugs lind treatment to I-II V
positivc inmates. U.S District Court
Judge f\lan'in Shoob. also cOlllmented
during his ruling. Ihat he Ihought the suit
filed by eight IlIV-positive inmllles who
claim to ha\'e received substandnrd care·
should be expanded to include all health
care issues lit Ihe crowded COUlll) lock-

"po
• A Baldwin County inmate \\ho \\lIS on
suicide \~mch apparent I) hung himself
about fhe minules after <I dcputy
checked on him. authorilies S3id. Kel1)
Shinell. 33. of Dahlonega. was found
dead Authorities said Shinen used a
gllrbllge bag atlilched to a sprinkler outlel
to hang himsc:lf from the ceiling of his
cell. ShiOett \\1lS arrested last month for
allegedly stealing 5260.000 worth of
equipment from the county wllter department. The Georgia Bureau of Invcstigations is now qucstioning other inmates

F.P.L.P. VOLUME 5, ISSUE 4

about Shiflett's death.
lIIinois- The Illinois I-louse Judiciary
Committee has Iaken steps to discover
\\h)', since 1977, Illinois has executed
II prisoners \~hile another 1:2 \~ere
remo\ed from dealh ro~\ after Ihey were
found to be innocent. The Judiciary Com·
millee has voted for a measure halting
executions for one year to sludy Ihe problem. Moratoriums also have been dis·
cussed in Indiana and Pennsylvania.
• The Illinois legislature's package
which included a law requiring murder·
ers to serve full sentences and sctect violent offenders to serve 85% of their sentences. was slruck down by the Illinois
Supreme Court. The so called "Truth in
Selltencing" legislation was found to be
violative of the constitution because it
mixed unrelated subjects. The Supreme
Coun's ruling freed the first 18 of 2.570
people sentenced under Ihe overturned
law \~ho \~ere eligible for "good time"
credits. which reduced their sentences.
louisiana Slate prison officials at Angola were found by Legislative Auditor
Dan Kyle 10 hll\'c tapped an inmale fund
for 541.559 in food and household items.
Some of the money was used 10 pay for
bllnquets and barbeques for 28 evellls.
Among the e\,ents were a Chamber of
Commerce gnthering and meetings of
prison executives.
New York- Peter Farace. 25. died of an
nsthnlll nuack in February 1986. at the
Auburn CorrectiOllll1 Facility. Farace
hnd requested a refill of an asthma
inhaler. however. prison guards en·
sured his request never reached prison
mediclli Stlln: While locked in his cell
Farace had an asthma allack and slowly
died while his lung filled with Ouid and
his blood \cssels ruptured. On No..ember 23. 1998, a 'e\~ York coun of
claims judge. Nicholas Midley Jr.;
awarded the family of Farace 5350.000 in
damages for Faraces denth and 550.000 in
interest.
Norlh Carolina- Johnston County Sheriff Steve Bine! wnnts to chllrgc inmates
S5 a night to stay in his jllil. Bine! said
thllt a 34 )'car old state stlliute permits
counties to charge inmates 55 a night.

"The way I look at it ;s it's cheap rent for
lodging. three meals and a gunrd to look
at," Biuel said.
Oklahoma- On March
15,
1999
inmates· and employees of the Okla·
homa Slate Penitenliary had 10 snuff out
Iheir cigarettes for good. Prisoners were
given two weeks to rid Ihemselves of
lobacco products before prison officials
deemed it contraband. The prison holds
approximately 1.500 nervous inmates.
Tennessee- "It doesn't pay to do wrong".
reads the sign above the door to the Morgan County Jail. a brick fonress painted
bauleship gray. Sewilge dripped from the
ceilings, inmllles were not allowed to
shower for days, and some nights the
guards just locked the door and len. The
U.S. Juslice Department took action in
1997 after a female inmate, Shelly
Massey, hanged herself with a sheet and
her mother demanded lin investigation
A lenglhy inspeclion was perfomled by
the Justice Depanment in \\hich deplorable conditions were found. including
unsanitary food preparalion, bug infestalion. lind a lack of lraining for guards teft
in conlrol of prisoners. Under the new
Sheriff. Bob Gibson. the conditions in the
jail promise 10 greally impro\e. along
with the supervision of the Justice Depanment.
Texas- On December 19, 1998. II femalc
gUllrd working lit the French Robertson
unit. Texas DOC, was raped by lin inmate
while conducling II bed cheek at 2:40am
in one of the mllximum security sections
of tile prison. Jessie Trevino Cortez, 22.n
convicted rapist. opened his cell door.
grabbed the guard and held her hostage
for 2 hours. prison officials snid.
Twenty-four hours after Ihe incident 80
state prisons were locked down during a
Slate-wide "shake down". Prison officials
snid the lock doy,n was not related to the
assaullllithe French Robertson unit_ Iron·
ically. the unit \\115 awarded lhe
n
~prestigious prison accreditation of the
American Correclional Association on
December I, 1998. just two \~eeks prior
to the aSSllult.
• Texas Department of Criminal Juslice
(TDCJ), has put plans into aClion for the
(CQrr/mlNd orr pa~ 16)

Page 12

Dear FI'lP, My bunky hns let me read Ihe last couple of issues and I find mysc1fanxiously wailing on her to fimsh the lalesl. So, llIlll$t
hlne my o\\n copy.
Imn very impressed with y'Ollr efforts to help us, and extremely :tpprecilltive of the results! Thnnk you! B K lFC
Dear FlllP, You will find 19 stllmps with this nOle to renew my order. Sorry I can't send more. You arc all doing a fine job bringing the
truth 10 the forgotten in DOC.
Your Leglll Perspectives has helped myself and mllny others in ways only a re:tder could understand. from court to confinemcnt to the
free \\orld, the trulh is out 311 anyone has to do is read FPLP.
E\ef) library in FOC should order and every family \\ho would like to understand the truth about DOC should read FPlP.1 for one
hll\e no income and I ha\'e to sa\c up stamps each year just to reorder FPlP. but there llre many people \\ho can send 56 and don't. Th~
If) 10 get other inmales copies. \\hen if they \\ould jusl give up a few cups of coffee or coo"ies they \\ould be helping us all and
Ihemselves. Be a part of Ihe famil) thai brings the truth to all. Wilh OUI FPlP \\e inmales would still be in chains and the free \\orld
pwple \\ould be in the dark ages. So I ask 111110 open up your heart and send your book of stamps or 56.
And thank you FPlP for ttllihe help you have given me. Gary Bishop SRCI

Dear StttfT: What I want to SOllnd off ttbout is the food service within the DOC and at Chnrlone CI. When I Cllme into thc system in
1980, Ihe DOC master menus provided :tnd the inmates were served lhree subSlnntial, nutritious, wholesome meals per day. We could
select clean food tmys from lhe diny ones lind sec Ihe food items being put on our tmys. S0111e of tile ilems were self·served. Food service
back then WIlS not rellily an issue as evidenced by the majority of the elass nction lawsuits filed by Floridll prisoners over lhe past 19 years
BUI now although it's slill not lm issue, the food service at many of the prisons within the DOC is, in my opinion, bad if not sickening.
At just about every instilution thllt contracts wilh II food catering company, there is a problem with the food service. Either the portions
a~ small the preparations arc poor, or the food items served are oflhe poorest quality. The rolling door1 are sown on many of the sen'ing
lines, and this pre\'ents the observation of unsanilary food service that someone else may not recognize and complain about. t\1 some
prisons, inmates arc no longer allowed to seicci their own food trays, and at Charlotte, I have received many meals served on defectl\ e.
stained. or dirty food trays. To better the food service conditions at CCI. I have filed many grievances al lhe instilUlional and Central
Office le...el. ho\\e\er, 10 no a\'tIil. I have filed so many legitimate grievances. \\hich were denied. until I ha\e SlOPped complaining. Out
of all the grievances Ihat I have filed. lhe only one I recall being approved was lhe grievance I filed about the usc of food trays \\ ilh sharp
jagged edges. I ha...e filed aboutlhe preparalion and cooking of foods by inmales \...ho don't know how to coo~, the poor qual iI)' of the
foods served. Ihe insufficienl ponions sen'ed, lhe dirty food trays, and lllany other food scrvice problems that present a hazard 10 an
inmate's health: ho\\ever, to no :tvail. On one occasion I filed and was told Ihatl was not al McDonalds. Ho\\c\er, although I am not JI
''''IcDonalds where you "have il YOllr way", I nm not even gelling it lhe way it is supposed to be. For the heallh of all the prisoners
incarcerntcd. I hope lhe new Secrctary of DOC puts a boot in lhe companies that cnler food service to the DOC, kick them 0111 of Ihe
door, and employ certified chefs and dieticians lIt every major prison. For the Slime reason, I hope the Inspeclor General discovcrs the
other problem.s menlioned above and tllkes corrective action. Unlillhen, the food service at many prisons is going to Sla)' thc same-bad.
OS CCI

Dear Sirs. I have read y'our ne\\sletter for many years and hlwe decided 10 gel my 0\\11 subscription so as to kl )'OU kno\\ that your price
increase will not erode your reader base and that you have thousands more reader.; than what y'our actual subscription list shows.
Keep up the good work and consider m)'selfto be one of)'our ardent fans and supporters. BVL GCI
Dear FPlP, I ha\'e been a subscriber no\... for 4 years and I must admilthat your newslelter is the best one I have e\er come across for
Floridll Inmates. I would like to tell you aboui some of the things that are going on here at eCI. The conditions here are very bad,
especially in the Clo~ ~Ianagement unils. Being on C.M. here is like doing time in a Nazi concentralion cnmp. They allow us 10 dean
our rooms once a week (nnd hlllfthe times they don't do 11 at all) A lot of guys here arc being assulted and chemically maced for no other
reason but talking on lhe door. The use ofgrievanees is nothing but a red fing to the officers 10 retaliate on you by writing false D.R.s lind
verbal and physical abuse upon you. Right now this Inslitlllion has 2 dorms holding 400 inmmes on C.M.they also nrc convening anolher
donn for C.M. (another 224 beds for liSe for C.M.) and they are building an 800 man annex for nothing but C.M. inmates. Slowly but
surely' the FDOC is locking down the system so thlltlhey will have more control and be able to do what they want to us. Inmates need to
~'Uke up and see that we lire heading for some really hard limes unless we help SlOp it. I urge all inmales to unile and stop being sheep
and slllrttrying to help. There :tre many non violent ways help. From boycolling Ihe canteen to nOI using the telephone system 10 filing
f.411lt/ltn r<,rtll<'d ('Unnot M prtnltd MCOUU ofSfNlU ITSlrt~/lQrIS. U,wgMd Itf/us "III not M prmltd Of" Inltrs lho/ OIIl/OUII) Qrt n(Jl ,mtnt/ttlfOf" pI/hI'N>/Ion PltaM IM/Crllt m lour Ittltrs Ifrou do not lOanllt mltd. a/hierwlM FPI.P rtMn<ts I~ rl hllO ml 011 Idlers rUt/wd and to ..allltlltn fM It" Ih.

grie\'ilnces 10 having our lovcd ones get involved. If we don'l slap Ihis soon it will become another inslance of horror and tonure in our
hislory. When ),ou treat a man like and animal he will become an tlnimal over lime. Stop the 1Il1ldness before ils to hue. Thllnk you for all
thm you tire doing for us in here. Keep safe, stay strong and always be in the light! RW eel

Dear FPLP, This is jusl a lillie hello and a book of stamps enclosed to rene\~ my subscription. I see no problem with the subscription rate
increase, iI's money well spenl.
1will sa) in closing that some of the officers here also find )'our publicalion enlightening infonmlli\e and it does add a drop of insighI
into their struggle with professionalism in a world of madness. That's refreshing. BP

Dear FPLP. I've been gelling FPLP for the PllSt couple of years. And I can't believe it could happen, but each issue gets beller. The
FPLP has done so much to keep the prisoners informed and aware in the past and also it's finally making the public Rware, I'm sure thRt
lour aware oflhe purposed rules change for Close fl.lanagenlent. Another move by Ihe FDOC to add funher punishment 10 ii's prisoners.
They purpose 10 CUI our canteen items to 5 no food items monthly. If)'ou order 1\\0 pens. that's two of your ilems gone. They want you
10 ha\e nOlhing in Ihe FDOC. No self respect, no spirit, oh \~ell, I wish there were more like Ihe FPLP stafT in Florida. Thanl.. you for
~\haI your trying to accomplish. PY VCI
FPLP is great! It has helped me with my case, and it hIlS also helped me to help olher's with their cases. I am a Law clerk trainee
waiting to go to the FDOC lcg31 research clllSS 31 Orlando (CFRC).
FPLP has 3150 "opened up my e)ef' to \~hat is really going on at some of Ihese "concentralion camps" in this stllte. I have just
tmnsferred farlher smuh from one of those "camps". Keep up the good work! Thnnk you for helping "us". SK APCI

De3/" FPLP, As 111311)' other institutions h3\'e their secrets in their operating methods. We here at Lawtey have experienced some
frivolous times.
Example: When work squads leave for work on weekday mornings, some inmates arc pulled out of line and searched: leaving them
standing in nOlhing but boxers and T-shins.
We (inmates) are told Ihal we are carrying controlled subsll1nces (namely marijuana) in our boxers. It becomes even more hettie when
the lemperalure e:(ceeds belo\\ 32 d~es ouuide. As in 19,22, and 28 degrees in temperature.
Grievances are wrilten bUI mAny arc returned within a day or two stating that Ihese mtllters will be looked into but nothing stops the
searches. We have a female officer ~~ho consistently pushes issues that in tum arouses Ihe sergeant of the shift and then later the inmllte
is locked·up in confinement.
Things til this camp are changing daily bUI never for the belief. It almosl seems impossible considering I'm only one individUAl
bectluse othcrs here nrc 100 scared to challenge any discrepancies of theirs.
The lOP (chapler 33) iSlotalty overlooked to suit the inslilulions need. I'm very sorry to here about the deaths oflwo female inmates
at JefTerson C it goes to show Ihal more (inmates) need 10 quil hiding and make (help) make changes before il gets worse.
I want to thank and 10 encourage all of)'ou to keep pressing on \~ith what is obvious a positive outcome (newsletter). Thank you for
)our time 10 listen. M.N. LCI
Dear FPLP: Being an FPLP subscriber I'm greatl)' impressed with all the time and work put into this newsleuer by Ms. Bums and the
stafT. fl.ly hat's ofT to )'31 I need to cry OUI 10 all Ihe folks \\'ho read FPLP, espetially those who might be considering applying for
clemency wilh the use of counselor a paralegal. Ronald Rhue (of the Rhue Group, a parnfegalllSsociation, last known address, 1096 Fay
Ave.• Largo, FL 33771, PH. 727-524-2859) took my \~ife's money over a year 3g0 and has not RS of yel showed my wife or myself
(I11Ylhing lownrds prepaTntiol1 for my clemency pnckRgc. RhLle will not accepl my phone calls or tlnswer my letters. None of his promises
have been rcalized. My wife contncted the governor's clemency office and the allome)' generalo.nd was informed thallhcre have been
Oilier eompillints against Rhue. fl.1)' wife is currelltly working with the attorney general and Ihc Floridn Bar in an allemptto at lellsl have
Rhue relum all the paperwork Ihat I had sent him, and hopefully our money. I personalty believe that Ron Rhue, an e,'(-con himself, slill
has some -con in his life. ,\11 persons who have or Illa)' be considering a business rel3!ionship with /I.·lf. Rhue should be wary and look
elsewhere for like services from a qualified and teputablc provider. C.H. "1\.Ionty- Montgomery, Col CI
M

(,HI fl'/tus r'l'ct'/\Y'd camral hi' prmud NrnIUI' a/spat:r ,,'SIr/cllfJllS U"s/gMd ffl/us "111 "01 M prm/I'd or Il'IItrs I1ml ob\'iousl,' ort nal/n/trWl'd/or PUb/leu/l0fl. PItas.' INitro/tln l'OU' Itl/trs If '();I do nOI M·tml/I rln/td. o/!Jtn, lit FPI.P '?s.''''Y'S /ht fI hI fa Iml allltliUS rtCtI\Y'd and 10 td" IlI/tn for It" Ih

F.P.L.P. VOLUME 5, ISSUE 4

Page 15

building of segregation units in Texas prisons. These units are said to be used only to
house violent prisoners, and will include
cells \\ ith shoner and loile[ facilities. These
facilities enable prisons to keep a prisoner
closed in II single cell for long periods wilh
minimum man power use. A computer
prompts the guards to tum on showers [0
the cells for 5 minutes each day, and Ihe
food is slid through a slot in the door.
Prisoners are kept in lotal isola[ion with
minimal movement depri\'ing them of any
QUiltl from Ihe oppressive environment.

A.A PRlSOt~RS WITH CHILDREN

_..

• • •

OaLDllEN W!TH P~'TS

lNCARCERATID IN noRmA PRISOSS

1=1

Virginitl- Virginia's first super-maximum
prison, Red Onion State Prison, has become
(he focus of tile 1·luman Rights Watch, after
repons that inmates at Ihe unit have been
fired upon with shotguns, shocked with
electronic stun devices, and locked in cells
for 20 hours II day. Since its opening in
August of 1998, staff members at the Red
Onion unit have fired shotguns at least 63
times and hil inmates III least 10 limes with
so-called "stinger rounds that consist of
rubber pellets. Most of the injuries have
been slight. however. one inmate had to be
brought to the hospilal with pellets
imbedded in his face. The extrnordinarily
h"nrsh and restrictive conditions at the unit
were designed for extremely violent inmates, however, unable to find enough
"worst of the \IOrst", Ihe Virginia DOC is
R

F.P.L.P. VOLUME 5, ISSUE 4

simply sending mcn to the prison who
do nOI fit the criteria and could be
safely confined e1se\\here.

INFORMATIO NEEDED
FROM WOMEN
PRISONERS
Bonnie Kemess. of Ihe American Friends Service Comminee
(AFSq, is seeking testimonials from
women prisoners relating experiences
with extended isolation and/or Ihe lise
oftonure devices. The lestimonies will
be used in repons to imemational
organizations that monitor U.S. human rights violations. The receipt of
testimonies will be acknowledge. If you
wish to provide such information,
please contact: Bonnie Kemess, AFSC,
972 Broad Sl.. Nc\\ark, J 07102.•

FDOC DISCII'L1NARY
PROCEEDINGS: SYSTEMATIC DENIAL OF LIVE
WITNESS TESTI.10NY
The Supreme Court, in Wolff v.
McDonnell, addressed the constitutionally required due process protections
that should be afforded to prisoners who
arc subject 10 in-prison disciplinary proceedings that may result in the los5 of
gain time that has been aUlhorized by
state statutes or regulations. I Besides establishing several other minimal due
process requirements that prison officials must afford prisoners in such proceedings, the Court also staled:
W~ lI1l: alw of Ih~ oplnlon lhal the mmalt
IKlng dlselplln:u) plOen:dlng.> shoutd be .110... u1 10 ~all"'ltnesSCli and present d!xUlTl(Tllary
nukncc In his !kfenil: ... 1Ien pc:nnl!\lng him (()
do so will not be undut) hazafdous 10 1!1SlllullQnal
safel) or c:om:CllOll31 glWs I

The right 10 call witnesses to appear in person at a disciplinary hearing.
ho"e\er, is not absolule. and is subject
to certain qualifications. As noted
above, witnesses do not have to be allowed if it would "be unduly hazardous
to institutional safety or correctional
goals." The Court also identified a couple of other silUations where prison officials may properly refuse to allow wit-

nesses to testify at a disciplinary hearing:
Ordmllllly. the rlghl 10 prtSl:nt e"'ldencc IS
10 II fall heanng; bUllhc unttSltlet~d right to
all ... 111lCSSC$ from the prison populallon carnes
ob\IOUS poIenllal for dtsrupllon and for Interf~re~c
"'Ith the s"'lfI pUnlshment thai In IndiVidual ~ascs
may be e$S(nua! 10 canying QUI the c:oneellOtlal
program of the Instllulion IWlc must balance the
InmllIC'S Inl~resl In '\'Oldmg lhr: loss of plOd ume
agallnsl lhe needs of the pnson.1JIlI $On'Ie amount of
flulblhl) and leeommcdlluOtI IS IcqUlled Pruon
offienlls mUSI hll\'~ the n=sl\I} dlsrn:1101l 10 J.eep
thc h~lllln& "'Ilhm I~asonabtc limits and Lo I~fuil: 10
call \\llnt.Sscs Ihal may CI~alC a m~ of rcpusal Of
undermulC :Iulholll)
,'!though"c do not prescnile It. II would be useful fOl the Idlsclphnaryj
Commillee 10 Slale Its reason for rcfusmg 10 call I
... lloess.... hClhcr it ile for IITclcVM«. lacJ. of llCCCSSII). or the h~ards prt.Scnlcd In Indl"'ldual cases'
b;uI~

Thus, the Court identified that the
authorized reasons for refusing to call witnesses to testify in person at the hearing
are: (I) an individualized ha7..nrd to institutional safety or correctional goals: (2)
irrelevant (e.g.• a nonmaterial witnesses);
or, (3) lack of necessity (e.g., witness
Icstimony repetitious of other witnesses.
testimony that will obviously not contribute to the defense, elc.). But the Wolff
Coun only "suggested" that prison officials should have to state their reason for
refusing to allow a witness to lestify at the
disciplinary hearing.
Approximately ten }ears later. in
1985. the Supreme Court expounded on
its holding in Wolff in POIllI! 1', Rl!u/~
and held (as had not been specifically
done in Wolf!) thaI federal due process
docs require prison omcillis to slate one
or more of the authorized rellsons whenever a request to call a witness to testify at
the hearing is denied by prison officials.
In this context. the Ponte Court held that:
(Plmon oO'ielals may be rcqlJlrcd 10 c~plaln.
In a limned maonc:r.the reason I'lh) "'1Incssc:s "Cle
flO( altol'lcd to Itsllf). butlhc) ma) do so euller b)"
m»;lI1g thc nplanallon pan of lhr: -admIl1ISU'1lI\e
m:D,d- In thc dlil:lphnar} prOCttdIl1&, Of by prc:scru·
111& tdllmon)' 111 toun If Ihe deprlvltlon of I
-hbert) - mlerest IS challenged bee,uil: of the
ctalmed defectllOollOCSS dcnulli In olhct 1Oo1Xt!s, the
prison offiCials ml)' chose 10 C'(f1I1110 the" tkclSIOII
110 refuse 10 call the: 1'l11llCSSI atlhc hunng. Of lhe)
rna) dlo~ 10 e~f1laln II -taler - E.,ptafnrn& the decISIon at Lh= heartng I'llll or COUISc: not Irnmunlle
offieials from a subsequent coun ehallenge 10 Lhell
decision, hUI as long as thc rcllSOlls arc toglcall)'
rclaled 10 plc\enung undue hllWds 10 "mS\lluIlOnal
SIIrely 01 conecttonal goals,- thc c.,planallOll should
meet Ih~ dm: process requm:lIll:lllS IS oullined m
l
Wolff.

Page 16

Thus, while prison officials have fairly
broad discretion, within the authorized reasons, for refusing to call a requested witness to testify at the disciplinary hearing,
they do not have unlimited discretion to
refuse to allow such witnesses.
The reasons outlined by the Wolff and
Ponte decisions arc the only valid and authorized reasons for refusing to allow wilnesses to testify in person.
If other reasons arc used for denial of
live witness testimony. then arguably. federal due process (and possibly the prison
officials' own rules) is violated. Also, as
stated in Wolff, the reasons must be applied
in an individualized manner, In other
words. prison officials must determine that
each individual witness requested either
presents an undue hazard to institutional
safety or correctional goals if allowed to
testify, or is irrelevant, or is unnecessary
for the defense. And their decision is
judicially reviewable for ,Ibuse of discretion according to the above quote from the
Fonte decision,
Lin Wilness Testimony in FDOC
[n response to the decision in Wulff v.
McDullnell (that prisoners facing disciplinary proceedings "should" be allowed to
"call" wilnesses to testify m the hearing
unless cenain conditions exist) the F[orida
Departmenl of Corrections
(FDOC)
adopted administrative rules that incorpormed and complied with Wolff. In
1977, three years after Wolff was decided,
the depanment's rules stated in peninent
pan:
[33-22.08( 13) (i)J
(il The irlmate or the Disciplinary Temn rna)'
request n131erial Ilimesses. The chamnan Ilill clIII
those II Itne~ses (stun- or IIlIll<ltes) \Iho arc ;\v<lilable
and \Ihu arc determined to be ncces~ar)' [OJ an appreciation oflhe elrCllmstantts Repelill\c \Iimesses will
not be called Unavailablc \\ illiesst5 may submit \Iritten stnlCrncnts Witnesses will not be called if doing
~o would create a t1Sk of reptlSal or would undemline
aulhorll} The inlH<lte witnes, mliSl be \lilling tu
testify. An ,nmate witness ma)'c1ect to oller an orat Of
wrltlen Statement to the Ul~eSligahng ollicer 111 lieu or
a personal appeamnee belorc the Disetplmmy Team
The chnlllnan should nOle III the reflOlI Ihe reasons ror
dedUling to call reqllest"d \lllneSses,"

That rule f.1irly complied with WoIIT.
The rolLline procedure was to call requesled
witnesses before the hearing team, if available, to testify in person, if their testimony

F.P.L.P. VOLUME 5, ISSUE 4

was relevant, not repetitious, and would
not create a risk of reprisal or undermine authority. There was also a provision that if any requested witness was
not called before the disciplinary team
to teslify in person (whether because of
an authorized reason for exclusion existed or because the prisoner witness
"elected" to submit a wrillen statement
instead of appearing in person) then the
team chainnan was required to note in
the report the reasons for nol calling the
witness to the hearing to lestify in person.
During 1979, in a Florida case,
where prison omcials failed to nole one
or morc of the authorized reasons for
not calling a requested witness to appear at a disciplinary hearing to testify.
the First District Court of Appeals held
that prison officials must provide such
r'eason(s). The prisoner had been
charged with refusing to work. He
claimed that he was not refusing, he was
medically unable to work, which could
be verified by medical slaff. He requesled one of lhe prison 5 medical
slaff 10 be a witness. The disciplinary
team determined the witness was "not
necessary." because the only issue was
whether the prisoner had worked or not.
The circuit coun upheld the prison officials, bill the appeal coun disagreed.
The appeal coun held that under lhe
circumstances the prison officials' claim
that the witness was "not necessary"
was an insumcient reason for nOl allowing the witness to testify at lhe hearing.'
.FIlOC Witness null'S Evolve
In 1987 a Florida prisdner brought
a challenge in slate coun against lhe
FDOC claiming, in pan, that he was
denied constitulionally required due
process where he was nOl allowed to
call witnesses at several disciplinary
hearings, and that a "blanket ban" on
calling wilnesses al FDOC disciplinary
hearings e."isted generally. The First
District Court of Appeal determined
that if the prisoner's allegations were
true they "would constitute violaliolls
of Wolff and Ponte." The Court direcled thai an evidemiary hearing be
held in the circuil court to dClermine the
truth of the prisoner's claims. I
Following that case, in January of

1988 the FDOC changed its rules regarding the cal[ing of requested witnesses
to appear in person at disciplinary
hellrings. But the rule changes slil! (,'lirty
complied with the decisions in Wolff and
Ponte. Those changed rules provided in
penincnt pan, that:
[33-22.07(1)(a) and (b) I. and 5.1
('I) The Hemlllg Officcr or the Cb<lirnmn of tbe
Disciplinary Team Illay call inmme 01 ernplo)'ee
\lllnesses. SUhject to the provision, ofparngraph (b)
helow, an) \1;lne~s whose teslimuny is nccessary for
11 proper evalualion or the circullIstances. or II hose'
leSllmOn)' is requested by the inmate. shall be called
to leslify at the hearing.
(b) I. No witness shall be called ifil i~ clear that his
teslimony lluuld be irrelev<lnt, immaleria! or repctili~e,

5. The Ik<lrmg Officer or the Chamnan of the
[)isciplillary Team ma) delcrnllne lhat certall1 'Ill·
n..sscs shuuld not be called or thm cerlilin mrorrnalion ~!ml1 nUl be disclosed beeause to do so I\ould
create :I risk uf reprisal. undermine IluthOlily. or
othcrwisc present a thrcnl to the secoril)' or Older of
lhe inslitution The reason for any rcmictioo shall
he frlly e~pl:lined III the record of lhe hearing. but
infOfmmion-llmt should 1101 be disclosed shall be
withheld from the inmate.'

Those rules properly provided that
requested witnesses will appear 10 tcstify
in person at lhe hearing. if requested by
the Hearing Omcer, Chairman of tile Disciplinary Tealll, or the charged prisoner
The rules set out thc Wolff authorized
reasons for refusing to call a requested
witness 10 testify in person, and provided
Ihat the reasons for any restrictions on
calling requested witnesses must be explained in the record of the hearing. except when there was a valid securily risk
reason for not doing so.
The Florida First Dislrict Court of
Appeals had a chance to re.view those
rulcs when a prisoner judicially challenged the failure of a disciplinary team
to include in its repon of the hearing any
reason(s) for 1I0t calling an eyewitness to
testify at his disciplinary hearing. III The
appeal COllrt delcnllincd that such failure
to state authorized reasons for nOl calling
the witness was a violation of the de parlment's own rules. The Courl also found
lhat there were no valid reasons apparent
in the record for not complying with the
inSlructions set fonh in Wolff v. McDonnell - i.e., that willlcsses should be called
to appear at hearings abselll hazmdr. to
security. corrcctional goals, irrelevancy,
11
ctC.

Page 17

Further Evolution
Within three mOlllhs oflhe above decision by the District Court of Appeals, the
FDOC again changed its rules regarding
witnesses appearing at disciplinary hearings. Those changes were significant, and
were the first step the FOOC took to have
ilS rules make live witness testimony the
exception rather than the routine. During
April of 1988 the FOOC rules were
changed to prO\'ide different witness provisions for "minor" and "major" disciplinary
proceedings, and to add provisions for written Slalements 10 be used instead of live
appearances at disciplinary hearings. The
changed rules read in pertinent pan:
[33-12.005(4) (b»
(h) (II) nnmes of wi messes me given, the investigating officer shall then interview both inmate and
starr ,\itnesscs and. appropriate, ha.'e the Witness
Statement Fonn [)4·S56 completed.

(Minor proceedings)
\33-22.006(1) (h)[
(h) (11) the inmate pleads "nol guilty: evidence
is 10 be presented, induding statements from appropriate inmate and starr witnesses.

(Major proceedings)
[33-22.006(2) (g)]
(gl /lIf the inmate pleads "not guilty: evidence
to he presented, mc1uding appropriate lI\1nate and
sIllO·wimess.
IS

(All proceedings)
[33-22.007(2)(b)-(e)]
(b) The inmate, Hearing Officer or Disciplinary
Team may request malerial witnesses, Witnesses. staff
or mmale, found to be necessal)' to the proceedings
shall be called or their ,nillen stlllements provided.
(cl Witnesses shall not be called or certain infornmtion disclosed if doing so would create a risk of
reprisal. undermine authority or otherwise present a
threat to the security or order of the inslitUlion. The
inmate witnesses must be willing to testify but may
aller an om! or wrinen statement to the invesdgating
officer in lieu of a personal appearance, Notations
shall be made in the report with reasons for declining
to eall \\itnesses Of for restricting any informalion.
(d] No witness shall be called if it is clear that
his tcstimon)' WQuld be irrelevant. immaterial or repet·
itil'C.
(el if a witness is unavailable to testify at the
hearing, his signed wrinen slatemerlf may be aceepted
as evidence. Signed statements used as evidence shall
be read to tile inmate defendant e~eept as provided in
ll
paragmphs (a) and (c) ahol'C.

In the above rules it is notable that the

F.P_L.P_ VOLUME 5, ISSUE 4

FDOC changed its rules to provide that
before the disciplinary hearing is held,
lhe investigating officer would inler,
view requested witnesses, and if stlte
feels it is "appropriate," then Wilness
Stalement Fonns will be completed. In
lhe case of "minor" disciplinary proceedings (that still could have resulted
in the loss of gain time), if the charged
prisoner pled "not guilty." then those
wrinen "statements from appropriate inmate and staff wilnesses," would be
presented as evidence.
In the case of "major" disciplinary
proceedings, however, if the charged
prisoner pled "not guilty," then
"appropriate inmate and stafTwitnesses"
would be presented. However, although
the changes to the rules appeared 10
distinguish between "minor" and
"major" disciplinary proceedings, the
rules also stated that in all cases:
"lw]itnesses, slaff or inmate, found to
be necessary to the proceedings shall be
called or their written statemenl provided." That rule crealed the appearance thaI live witness testimony and
written witness statements were the
same and interchangeable in all
situations. And that was lhe way it was
interpreted by disciplinary teams after
that rule was adopted, i.e. written witness statements could take the place of
live witness testim.ony as long as the
"investigating officer" detCn11ined that
statements, inSlead of live appearances,
were "appropriate."

Systematic Denial of
Live Witness Testimony
During 1992 lhe rDOC was again
challenged in state court by a prisoner
claiming that he had been denied the
opponunity to have his requested wilnesses give live testimony at a disciplinary hearing. The circuit court in that
case found that the prisoner had not
submitted any evidence to suppon his
claim and "remanded" the case to allow
the prisoner 30 days to funtish such
evidence. The rDOC requested a clarification of that order to which the circuit court responded that the order was
to give the prisoner "the opportunity to
present evidence, by affidavil or other
documentary presentation to eSlablish

that he in fact requesled that witnesses
appear live and give testimony al any of
lhe disciplinary hearings." The prisoner,
however, failed to provide such evidence
within the time allowed by lhe coun and
his challenge was denied. The prisoner
appealed and the appeal court affirmed the
denial of relief without prejudice to the
filing of a new petition in the circuil court
to plead specific facts that had not been in
IJ
the first petition.
The following year, in 1993, another
prisoner challenged lhe FOOC in state
court claiming that the reasons given for
refusing to call his requested witness 10 a
disciplinary hearing were not valid reasons under the departmenl's own rules.
The reasons for refusing to call the witness to appear at the hearing were because
"it would do no good" and "the witness'
wriuen slatement was read during the
hearing." The circuit court found these
were not valid reasons according 10 lhe
depanment's own rules and gTartled the
prisoner relief The rooc appealed. On
appeal the FDOC argued that its rules
allowed wrinen witness slatements to take
the place of live witness teslimony at disciplinary hearings. The appeal coun disagreed, and found that neither of the reasons for refusing to allow lhe witnesses to
testify at the hearing were authorized reasons for witness denial under the department's own rules, The appeal court also
noled that even though in Ponte v. Real il
had been held that prison officials do nol
have to sate their reasons for not allowing
a witness to testify at the hearing al the
time of the hearing, FOOC rules required
the reasons to be documenled in the
record of the disciplinary hearing. The
appeal coun held lhat the prisoner had a
clear legal right to call his witness to
appear at the hearing, barring a legitimate reason why the witness could or
should not have been ealled.l~
On October I, 1995, the rODC
again changed its rules concerning
witnesses testifying in disciplinary proceedings
(among numerous
other
changes to all the disciplinary proceeding
rules). Those changed rules remain in effect today. They deleled the difference
between "minor" and "major" disciplinary
hearings concerning, whether wilnesses
could make a live appearance or submit
a written statement, In fact, the current

Page 18

rules make wrilten witness statements lhe
routine and live appearances at disciplinary
hearings the exlreme excep~ion in all cases.
The current rules provide:
[33-22.006(1) (g)]
(g) (1lflhe IIllnale pleads "nol guilty.' evidence
IS 10 be presem~d, including wiln~s5 Sl:uemen! forms
oblamed from .... ;Incsses.

133-22.006(2) (dl]
(2) The heMlII1l olTieer or chairman oflhe disci-

plin:uy leam has Ihe aUlhorily 10 require the following
acllons
(d) TMI an)' ""Itness(es) appcM allhe hearing.

[33-22.006(3)]
(3) The mmale 010)' reql.le51 lhot wilnesses ap,

pear al lhe hC:lrlllg, bUI inmate I,itnesses shall nOl be
roullllcly called before' lhe disciplinOl)' learn or hellrInll officer 10 plOvide liI'e lestimony fOI Ihe following
rC3SOllS·
(Ill Muiliple hearings Me routlllel)' scheduled al
one lime and lhe presence of willlcsscs during lhesc
hearings presenls a polenlial risk for lhc futility and
the safet)' ofslllffand inmoles as well as a di\'ersion of
addilional sC:CUrlly stalTfrom asSigned poSlS.

(b) The rOUllne presence of IIImale wllnesses
dUring hearlllg$ "culd eause a dislUpllOn in Ihe 01dell~ opcra\1on of lhe facilily, as il remo\'es inmales
from rCUline work asSlgnmenlS :lnd plOgroms.
(c) The tCSllmOn)' of witness rcquested by Ihe
charged inmale shall be prcstnled tlnough '\'finen
Wllness Slalement. Form OC-l·80-1e, unless lhe in-

~"

I HIlS compleled and Signed lhe "ltndS request
form durlllg Ihe lII\eSliglltion:
2. Makes a requesl al Ihe healing for a wilness 10
uppear 10 prol'lde live tCSlimony~ and
3. The dlsciphnal)' learn or hearlllS officer deler·
mmes lhallhe lellSOn plO\'ided by Ihe charged inmate
fOf rcquCSllng hl'e ICSllmonyOl ercomes thc burden on
IlI$tllulional stalT caused by Ihc relr;evalllnd escort of
1I,e "itncsscs tIS "ell;lS lhe di\'ersion orseeuril)' slaIT
flO111 asSIgned ]lOSIS due to the potenlial securily ri~k
lh~t rna)' result from lhe appearance of live inmate
\Illnesses and the disruption 10 lhe asSlgnrnents and
aCIlI Illes of mmate 'Illnesscs.
Hdl and (c) omntedl
(f) In no CDSe shall a wilness be called live or by
wl;lIen smlcmenl ifhis testimony would be irrelevanl,
Immaterial or repelilil'e.
(g)WlIIIC'$SCS Shall not be called or certain infor·
mauon disclosed if domg so would crCUle l\ risk of
repllSal, undemnne author;l) or olherwl~e prescnl l\
lhreat 10 the SeCUIlI) or order of lhe IIISlltullon The
mmate \\'III\e5SCS I1IU5t be willing 10 leslify by means
of 111I ami or 'Irmcn Slalemenl plovided 10 lhe in,'eSli·
pln\t officer, healing onieef, or lhe disciplinal)'
'~m

(h) IWlherc a WIlI1CSS statement is nOI read or

F.P.L.P. VOLUME 5, ISSUE 4

lhe inmate witness does nOl appear at lhe hearing
DS requesled, lhe lellSon shull be recorded in the
wilness disposilion form

(i) The ehilrged mmate \\111 nOI be: permilled 10 queslion or cross enmme wilnesses dming
lhe hearing.
(Emphasis added 10 abo\'e rulesl

The result of the above curren I
rules is system-wide denial of all requests for live witness testimony during
disciplinary proceedings. The disciplinary learns or hearing officers are
never detcnnining thaI the reason provided by the charged prisoner for live
wil1less teslimony overcomes "the burden on institutional stafT caused by the
retrival and escon of live witnesses as
well as the diversion of security stafT
from assigned posts due to the potenlial
security risk tlml may resuh from the
appearance of live inmate witnesses and
the disruplion 10 the assignments and
aClivities of inmate witnesses.,,15
If there is any doubt of the department's intention thlll absolutely no Wilnesses will be allowed to present live
testimony at disciplinary hearings, it is
dispelled by simply reading the back of
the Disciplinary Repon that is delivered
to charged prisoners, II clearly stales:
"The testimony of witnesses shall be
presented by written statementS, See
Rule 33-22.006(3) for complete informlltion regarding witnesses.,,16
Systematic/Categorical Denial
or Live Witness Testimony
Violntes Due Process
Following the adoption of the
above rules, in 1996, another Florida
prisoner lOok the FOOC to task in state
court for failing to stttlC valid reasons
for refusing 10 altow his requested witness to give live testimony at a disci·
plinary hearing. Apparently the disciplinary hearing had been hcld before
October I, 1995, before lhc above rules
went into effect, as the prisoner claimed
lhal the FDDC was required to note in
the report of the hearing the reasons for
rcfusing to allow his witness to nppenr
nl lhc hearing. The circuil coun denied
lhe prisoncr's petition for relief and he
appenled. The appeal coun noted that
there was nothing in the record to indicate "the prison official's reasons for
denying [the prisoner's) request to pro-

duce {the witness] in person." The appenl
coun also noted, "[there is no transcripl of
the hearing or notation in the record documenting the reason for relying on the witness's Iwritten f statement alone. However,
rnther than simply ovenurn the circuit
coun's denial oflhe prisoner's pelition, the
appeal coun remanded the case for lhe
FDOC to either expunge the disciplinary repon or hold another hearing. 11
At least six federal circuit couns have
interpreled Wolff v. McDonnell to require a case-by-case detemlinntion by
prison officials in the correctness of
denying a prisoner's request for witness.
Those courts have found that blanket
policies that categorically prevent witnesses from actually appearing at disciplinary hearings violate the Wolff due
ll
process principles.
In the most recem federal case the
Sevelllh Circuit Coun of Appeals, in
Whitlock v, Johnson, 19 struck down as
unconstitutional Illinois DOC rules that
provided that inslead of actually bringing
requested witness 10 teslify ill disciplinal)'
hearings, officials simply interviewed Ihe
proposed witnesses and presenled the disciplinary committee with a unsworn repon
summarizing the wimesses testimony,
That Coun, as have several others, held
thaI detenninlltions to exclude live witness
testimony must be made on a case-by case
basis, or due process is violated.
In a sitlll\tion very similar to the one
currently exisling in the FDOC, in 1996
lhe Ninth Circuit Court of Appeals struck
down as unconstitutional a jail pol icy that
was used to prevent all requested witnesses from giving live testimony at discilll
plinary hearings.
Challenging F'I>OC's Policy
Whenever a Florida prisoner is
charged with a disciplinary infraction and
there are witnesses thaI s1he can request,
the witnesses should be lisled with the
investigator. The invesligator is also required to allow the charged prisoner to
make a wrilten stalemem al thai time, That
written stalemenl should include (or only
state) that ALL wimesses arc requested to
appear in person before the disciplinary
team to present live testimony, Addition·
ally, when lhe invesligator intervicws the
requesled witnesses Ihey should documenl
(Conlmlltd on JIflgt 21)

Page 19

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The C8/1ing of America 15 the critically acclaimed Prison Legal
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Whon someone is accused or convicted of a crime, the inVIsible
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F.P.L.P. VOLUME 5, ISSUE 4

Page 20

(Commuted/rom page /9)

on their witness sttltement forms thtlt they
have additional testimony that Ihey wish to
present in person at the disciplinary hearing
(this is orten very true as only about four
inches is available on the wimess statement
famlS for the witness to write in).
It is imponant that the charged prisoner
repctlt his request for the wilnesses to
11
appear in person at the hearing. Since
Florida prison disciplinary hearings are not
recorded. to avoid disciplinary team members laler "not being able to remember" that
you requested the witnesses to appear live.
it would be the best practice to present the
hearing learn wilh a wriuen slatement (keep
a copy for )·ourself, of course) of your own,
setting out your defense in numbered paragmphs and restating that you request thai
the" ilnesses appear in person.
If the disciplinary team fails to document a valid reason (as sel out in wolO' v.
McDonnell and Ponte v. Real) why witnesses were not allowed to testify al the
hearing in person, or simply documenls
that "witness statements read," as mOSI
often is done, and Ihat ftlils 10 explain how
an individualized determination was made
on each requested \\ ilness to justify excluding them from giving live testimony, Ihen
),ou will have an excellent issue for appeal
and for any subsequent judiciol review.l.J
You. of course, would need to raise Ihis
issue on all of your administrative appeals
10 fully exhaust the adminislrofive remedies
4
before seeking review by a coun.: Failure
10 exhaust each alleged violation through
the administrative appeals process will prevent IIny unexhaustcd claims from being
raised later in COllrt for the first time. It is
imponant to realize thllt violations of federal due process and mandntory adrninislmtive rules may be separated into two claims.
You may clnim in such II case thaI your due
process rights under federal Illw was violated and thaI the department failed 10 follow its own rules.
This anicle is not intended to be all
inclusive. It is intended to stimulate further
research and pressure on the FDQC 10 com·
ply with the law. Prisoners who are interesled in this subject should actually read the
cases cited in this article and in the end
notes. -Bob Posey
End Notes
I

Wolff ... McDonnell. 9-l S Ct 2963

also. Slll1dm .... Conncr. 115 SCI 2293 (1995)
(rcaffirming Wolff, but cstablishmg a ncw
method of determming ~hethel a state-ereated
1lba1) interesl c.'I(ist)
2 WollT.td. at 2979.
3 WollT. td, at 2979 (emphasis added)
.. Pomte I Reat, 105SCI2192(19SS).
5. td, at 2196 (emphasiS added)
6 Rule 33-22.08 (I3)(i). FA C. (1979), Sec also~
Roberts v BneTUln. 368 So 2d 117. 11 S (Fla. 1st
DCA 1979) (quotmg that ,ute), and Plcclilio v
Waln~Tigllt. 382 So 2 I 7U.746, n I (Fll 1st
DCA t980) (quotmg that rule)
7 Robens Bnenon Id.
8 Adams
W:lln~right. 512 So2d 1077 (Fill
lsi OCA t987) ("permnlmSlll1 Inmate the limned
nght to eall wnnesses IS a mlll1dalOry prison
official dUI) unda the United Swes COIUhtu·
lion ")
9, Rute 33-2207(1)(1),(b)1. Ind 5. FA C.
(1988) (emphasis added) Sec: SlnlS .... Dulla.
519 Sold 1080, 1082 (FIll. 1st DCA 1988)
(quoting rule).
10 Suns I Dugger.ld

stating In record thaI •.... itnc:ss SlluemenlS rclld~ IS
1101 a valid reason fOI refusing to call ~l1nesses 10
testify In person athearlnsl
24 A pnsoncr allcgll'lS thaI hIS right to hal·e Wl1nesses appear at I diseiplinDl)· hearing was ... iolllted
undel I "bhtnkcI bllll" on hl·e witncu !CSllmon). 01
that lhe lell$OflS gll·en b) pnson offiCIals
lhe
exclusion of the witnesses ~ae nat a vllid Ua$OlIS
aecording to Wolff lll1d Ponte, or no( valid under the
dcpMtment's o....-n rules. must 5tt out ·dcllllcd fac·
tual allegations· In the JlChtlon or compllllnttMt IS
filed WIth the court T1Iost ·detilled fKtull II1legatlons" must Include (t) that the pnsoncl reql>C$kd
to call ~Ilne:nc:s bUI was denied. (2) Ihat the ~Il'
ncucs ~~Ie mllen:tl as evidenced b) :t hst of speCIfic Wllnesses reqlJCSted and I bod Ullemau of
~hal their tesllmony ....UIIld have been. and (3) thll
cuher the department made no notation in the rceard
i'l'lng \·Ihd reasons for nor calling the Wll.11tSSCS to
the hearing or that the reasons gil= wen: invilld
(per WalIT and Ponte andlor the dtpanment's a,,'lI
rules) See. 1I0lcomb \' IXX:. 609 So 2d 7SI, II 755

ror

(Fla 1st OCA 1992).1

11 hi
12 Rules 33-22005(4)(b). 33·22 006( I)(hl and
(2)(gt 33·1HI07(lXbHe). FA C (err ApI 1988)
(emphllSlS added) Sedlolcomb \ IXX:. 609
So2d 751. 755 (AI 1st DCA 1992) (quotmg
these rules tn patti
13 Holcomb .... IXX:. Id
14 IXlC ..._ M8IShall. 6t8 So2d 777 (Fla lSI
DCA 1993)
t S. Rule 33-22.006(3)(e)3 . F.AC. (199S)
16 DC~·80-l. DIsciphnM} RcpDf1 Form, (eff
101·95) Some mSlltullons Ire beSmninlto usc
computer-generated DISl:lpllnlUY RepM FolTllS.
e\·enluall) III m~lltullons IliIl lIowelel. those
computer-gencratcd DR fOlms Ibo stale Ihat
"Thc lestlmony of~ ilnesses shall be p,cscRled by
wnllen statement"
17. Williams .... Jamcs. 684 Sold 869 (Fla lnd
DCA 1996).
18, Eg, Whitiocl.: v Johnson, (5) FJd 380,
385-389 (7th ell 1998), Forbes v, Tli8i- 976
':2d 308, 317 Plh Cir, 1992); Ramer .... Kilby,
936 F,2d. 1102, 1105 (10th Cir t991): G,andi·
son I. Cu)lcl. 774 F.2d 598.604 (3d ell 1985):
Klllg I' Wcll~, 760 F.2d 1t9. 93 (6th Cn 1985):
Dalton V Huno. 71) F 2d 75,78(4th e,r 1(83),
Bartholomc~ ... WlItson. 665 F2d 915,918 (9th
Clr. 1982). But Sec: Ml:Gulnl1c5$ V Dupois.75
F 3d 794 (hI ell 1996) (Due process not ...iol:tted by not calling requested \Illnesses from
general prison papulallon Ilhen dbclpllnary hellf'
inp held in confinement unlL Reasons for uelu$Ion Included legitImate seeurny coneerns and
prisoner's claim that witnesses would only have
been able 10 -c.'I(pllm~ ~hat they saw much bet·
tel~ than in theil ~Tlllen statements )
19 Whitlock v Johnson,ld
20 Mitchell I Dupoilt;. 75 F.3d 517.525·26 (9th
Cll 1996)
21 Rule 33-22.006(3Xe)2 , FAC. (cIT 10-1·95)
22 Rule 33-22006(IXJ). FA.C (efT 10-1·95)
("The Inmate msy mtU:e any elosing statement,
~TlIlen or verbal. conterTling the mfraellOll for
consideration b) the hearing omcn 01 dIsci·
phnlll)' team.-)
23. Sa:
v Manh:l1l, 618 So 777, 778-79
(Fla lSI DCA 1993) (FOCX: offieiab SImply

PAST ABUSE REPORTED
BY PRJSONERS
According to a new report from lhe
U.S. Juslice Department released during
April, more Ihan a third of the women in
state prisons and jails say that Ihey \\-ere
sexually or physically abused as children
That is more than twice the reponed rate
of child abuse for women generally. Male
prisoners who claim to have suffered
abuse as children was much smaller, with
aboul 14 percent of male prisoners saying
they were abused as children, but Ihat
figure is still twice lhe nalional rale of 5to
8 percent for men generally.
The survey of prisoners in bOlh
state prisons and jails was conducted in
1996·97. The Justice Depanment repon
documents Ihat more than 36 percent of
women prisoners say they had been sexu·
ally or physically abused al age 17 or
younger.
Not surprising, the survey also
found alcohol and drug abuse higher
among prisoner who reponed suffering
child abuse, with 80 percent of abused
female prisoners and 76 percent of
abused male prisoners saying they had
used illegal drugs regularly as compared
to 65 percent of female and 68 percent of
male prisoners who reponed regular drug
use and who had not been abused.
The survey found thai a third of
women in stale prisons and a quarter of

ocx:

(197~)

Sec

F.P.L.P. VOLUME 5, ISSUE 4

Page 21

[hose in jails reponed having been raped
before incarceration. Almost half of all
women prisoners surveyed said they had
been physically or sexually abused at some
age before their incarccnllion.
Among state prisoners. Ihose reponing child abuse were more likely to be
incarcerated for a violent crime than Ihose
reponing not 10 have been abused.
The repon's findings show that prisoners who grew up al least panilllly in
fosler care. or if their parenls were heavy
alcohol or drug users themselves or if a
family member had been imprisoned. reponed higher levels of prior abuse.•

(Another Notable Case)
Close Management
Exercise Suspension
List Constitutional
The U.S. II th Circuit Court of
Appeals has detennined that Florida prisoners who are in Close Management confinement slatus have a state-created libeny interest in outdoor exercise and that Ihe
deprivation of same requires due process
protections. bOl lhat two Florida prisoners
al Florida Stale prison had received allihe
process Ih.1I they were due prior to having
their access to outdoor exercise suspended
and thai the minimal and post-deprivation
procedures used for implementing the deprivation comply with the Due Process
Clause. The coun also found Ihal a complete denial of outdoor exercise in Ihis particular case did nOI amount to cruel and
unusual punishmelll violative of Ihe Eighth
Amendment, nor was the Equal Protection
Clause violated where prisoners on death
row receive four hours per week ollldoor
e,'(ercise bUI those prisoners placed on a
"yard suspension list" receive no olltdoor
exercise.
This case was filed by Florida prisoners Frank Bass .:lnd Leonard Bean, who
arc bOlh incarcernt~d at Florida State Prison
(FSP). for mOSl, if not all. of their stay at
FSP bOlh these guys have becn on Close
Mnnagcment confinement. Prisoncrs on
Close Manllgement nomllllly receive 'only
two hours of outdoor exercise each week.
However. according 10 Floridll Departmcnt
of Corrections (FOOe) rules "if clear and
compelling facts can document fthat) such
exercise periods should rIO/ be gn'lnred"

F.P.L.P. VOLUME 5, ISSUE 4

then a prisoner may be placed on what
is called a "yard suspension list (YSL),"
and his outdoor exercise is suspended
for an indefinite period.
Both Bass and Bean had been
placed on such a suspension lisl several
limes for various rellsons. lllOse reasons included attempting 10 escape together from FSP during a previous outdoor exercise period by scaling a fence,
pulling a guard out of a dump lruck at
knife point, and anempting to ram the
dump truck through a fence. Other
charges included being in possession of
weapons and escape contraband and
having stabbed another prisoner in
Bass's case. and having murdered a
correctional officer and having escape
contraband in Bean's case. Because of
Ihe outdoor exercise deprivation, however, they filed a § 1983 action challenging the outdoor exercise policies
and procedures used to implement such
deprivation. They claimed thllt the deprivation of outdoor exercise for prolonged periods is both cruel and unusual
punishrnem, a discriminlltory violation
of equal protection where even prisoners on death row receive outdoor exercise, and that the procedures used to
deprive the outdoor exercise docs not
prvide due process protection. The federal district court granted summary
judgment for the prison officials and
Bass and Bean appealed. [n a fairly
concise opinion, Ihe 11th Circuit Coun
of Appeals affimled the summary judgment.
Firsl, the 11th Circuit coun discussed lhe Eighth Amendment claim. In
a brief history lesson. the coun noted
that when the first "modern" prison
opened in [790, prisoners convicted of
serious offenses wer,c kept in solitary
confinement and never allowed out of
their cells. Those conditions (according
to a single cited source) were not considered cruel and unusual punishmeni.
But the coun admiued that conlemporary standards of decency should bc
considered in whether punishment is
cruel and unusual, with the standard of
review in the context of II prisoner 5
conditions of confinelllent after incarceration being "the unnecessary and
wanton infliction of pain." (Cite omitled). While no outdoor exercise would

qualify as involving "infliction of pain,"
the coun explained, in this case and with
the violent history of Bass and Bean, such
pain was not inflicted without penological
justification."
Nor was the placement on the YSL
wanton. as the record before the coun was
"filled with evidence indicating prison officials were very concerned about the potentia[ IUlnn to inmates from placement on
the YSL, and took ... steps to ensure thai
Ihe plnintiffs were not hllnned," including
daily sickcall opponunities, weekly psychologica[ evaluations, and booklets on
how to exercise inside the (very small)
cells. Thus, the coun concluded that the
outdoor exercise deprivation suffered by
Bass and Bean did not violale the Eighth
Amendment.
Second, the coun considered the
denial of conslitutional due process claim.
Due process under the U.S. Constitlllion is
only required where a life. libeny or property interest exists. The coun noted lhftt
life or propeny was not an issue in this
case, therefore it must detennine if a liberty interest existed giving rise to due
process requirements. The coun discussed
that after Sandin v. Conner, 115 S.Ct.
2293 (1995), only two circumstances give
rise to a [ibeny interest in the prison context, (I) when a change in conditions of
confinement are so severe that it exceeds
the sentence imposed by a coun, or (2)
when Ihe stale creates by law a benefit and
the deprivation of same amounts to an
"atypical and significant hardship in relation to the ordinary incidents of prison
[ife." (Citing Sandin). The coun found the
second circumstance to exist in this casco
Citing FDOC rules, the coun held Ihat a
state-created protected libeny interest exists in outdoor exercise for Close Management prisoners, thus requiring some measure of due process.
The coun opined that the minimum
requirements of due process for prisoners
facing disciplinary action (involving the
deprivation of II libeny interest) (in this
elise placement on the YSL) are: (I) advance written notice of the charges; (2) II
wrinen statement of the reasons for the
disciplinary action Iaken; and (3) an opponunity to call witnesses and present
evidence, when consistent with insti[utional safety and correctional goals.
(ColllOlwecl 011 page].l)

Page 22

THOMAS E. SMOLKA
ATTORNEY-AT-LAW
3126 W. CARY STREET, SillTE 122
RICHMOND, VIRGINIA 23221-3504
TELEPHONE (804) 6444468

E-MAIL lesmolka@..l..orldDet..tt..nd

TELEFAX (804) 644-4463

ANNOUNCEMENT
Thomas E. Smolka is proud to announce the establishment of his law practice in
Richmond. His practice areas include: Criminal Defense Law, Appellate Criminal Law,
Post-Conviction Relief, Major Civil Litigation, Inmate Administrative Law and
•

Proceedings involving the Department of Corrections, Probation and Parole, Executive
Clemency, Interstate Compact and Institutional Transfers, Immigration Law and
Detainer Actions.
Additionally, Thomas E. Smolka and Associates located at 909 East Park
Avenue Tal/qhassee Floridq 32301-2646. Telephone Ca5Q) 222-6400.

Tel~lax C85Q)

222-

6484. will continue toprQyjde a full ranee Q/Consll/tjn~Services to Inmates on

Administratiye Executive Clemen<;y and Parole Related Mauers.

Subsequent to his 1975 graduation from America's oldest law school at the
College of William & Mary, Thomas E. Smolka was admitted to the Virginia State Bar
and became a member of the National Association of Criminal Defense Lawyers. Tom's
legal experience includes service as an Assistant City Attorney of Norfolk., Virginia
followed by many years in private law practice. Most importantly, Tom Smolka's direct
understanding of the American judiciary came when he confronted the criminal justice
system, won his direct appeal and was exonerated. See Smolka v. State. 662 So.2d 1255
(Fla. 5'" DCA 1995), rev. denied, State v. Smalka, 668 So.2d 603 (Fla. 1996).

F.P.L.P. VOLUME 5, ISSUE 4

.

Page 23

(Citing Young v. JOlles. 37 F.3d
1457.1459-60 (11Ih Cir. 1994).
But having sct out those minimum
requirements, the coun then embarked on
justifying why none of them were required
in this casco Bass and Bean were given

written notice of the intent to place them on
the YLS after they were placed on same.
The court held. however that the failure to
provide advance notice was irrelevant. Citing to a prior 11th Circuit case, McKinney
v. POle. 20 F.3d 1550 (11th Cir. 1994), that
had held that, essentially. where a laler
procedural remedy is available to cure any
prior procedural defect then the prior pro·
cedural deprivation is immaterial. Bass and
Bean, the coun noted. where able to and
did file several grievances after being

placed on the YSL. sO strict compliance
with the "advance notice requirement" was
not necessary.

plinary action be provided. was provided.
the eoun decided. when Bass and Bean
received the responses to their (post·

deprivation) grievances. TIlUs, they received written reasons, the court held.
On the third due process requirement, i.e., the qualified right to call wit·
nesses and present evidencc, the court
cited two reasons why this was unneces·
sary in this case. The first reason the coun

said was the threat that Bass and Bean had
historically been to Ihe safety of Ihe
prison, thus prison officials had UIC discrction to limit those rights. The second rea·

sons given by the coun was thai there was
no need for Bass or Bean to present any
evidence because, under the circumstances, the facts underlying the misbe·

havior whieh eaused the placement on the
YSL (i.e., the attempted escape, escape

require·

contraband, assaults, murder, etc.) "were
not in dispute." (In other words, the coun

menl, i.e., that wrincn reasons for the disci-

implied that they had already been found

The second due process

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F.P.L.P. VOLUME 5, ISSUE 4

guilty of those charges. or at least had
not challenged that they had occurred).
Therefore, the minimal due process
that Bass and Bean received after

counsel. basically because the outcome would
have been the same anyway. ee: Bass v.
Perrin. 170 F.3d 1312, 12 FLW Fed. C634
(11th Cir. 4/1/99).

placemem on the YSL was sufficient to

satisfy the Due Process Clause. accord·
ing to the coun.
Next, on the Equal Protection

claim, the coun briefly determined that
even though death row prisoners may
receive four hours per week of outdoor

exercise and the prisoners on the YSL
none. Ihat there was a rational basis for
any discrimination. "Death row prisoners have not necessarily shown themselves a lhreat to the internal operations

of the prison, while persons on the YSL
have." stated the coun. Thus. the coun
rejecled that elaim also.
The cou" also detennined that
the district COU" did not abuse its discre-

TIlE NEW SClUTI10N

In 1966, there were zr,CXIO
people in California's mental
hospi1als and 27.000 in the
state's
prisons
and jails.
Today. there are just 4,500
mental
hospital
beds
in
CaJifornia., and the number of
people in the S1ale's prisons
has exploded to 160.000.
{Sow"ce:
Ment.1I7

N.tion4J

w)_

AW......cc

ror

....

tion in denying Bass and Beans motions
for appointment of an expen witness or

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

ON-PROFIT
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