FLORIDA PRISON LEGAL

ers "ectives
VOLUME 8, ISSUE 5

LET'SPLAY
MONOPOLY:
Florida's Prison

Phone System
by Linda Hanson and
Teresa Bums-Posey
For

Florida

SEPT/OCT 2002

ISSN# 1091-8094·

prisoners,

maintaining contact with family and
friends can be extremely. difficult and

expensive.
Upon reception, the
prisoner is usually assigned to an
institution that is hundreds of miles
from their home. This assignment
renders regular visitation unlikely, if
not impossible, because of the severe
hardship it imposes on families who
are juggling to maintain their
personal lives in the absence of their
loved one.
Thus, the most
meaningful option available for
prisoners to maintain family contact
is the prison phone system. This
option is often the .only means
available to prisoners who can
neither read or write. But make no
mistake about it, prison phone calls
are expensive.

Prison officials recognize
that· maintaining family ties is an
iniportant factor in helping prisoners
make a successful return to society.
The question that begs an answer is:
Why are families of the prisoner
forced to use an expensive collectcall system that saddles the innocent
with telephone bills· that often reach
hundreds, even thousands of dollars?
Most of the prison population come
from the low to middle class
spectrum and· most were the primary
breadwinners in their household. So'
when they enter prison they leave
Wives, sons and daughters to manage
the affairs of the house on a very
. limited income. Most families can
barely survive even without the
burden of receiving their loved one's
collect-call.
And' many sacrifice
other essentials to be able to hear
their loved one's voice if only for 15
minutes, the maximum time allowed
per call..
In this article, we'll explore
the genesis of the prison phone
system, the cost for' families
including the many overcbarges, and

poSsible solutions to this unjust
dilemma.

The Boom

In

P~on

Watch too many TV police
dramas, and you're led to believe
that prisoners are' restricted to
making just one phone call. But the
nation's
telecommunications .
companies know better, and they are
making more than pocket change off
families ofprisoners.
Most local and state prisons"
allow prisoners to make daily callS,
creating a correctional phone market
worth'well over $1 billion a year. As
states across the country pack more
prisoners into jails and prisons - the
latest count is over 2 million competition ·to provide phone service
to those prisoners is fierce.
Through the history of the
penal system in America, most saw
prisons. as a liability. But in the
1990's that view changed, at least
with corporate America.
Prisons
became tremendous public works
projects, throwing off money as a

FAMlUES ADVOCAlES PRISONERS

iJ

N
.
THE
INSIDE

UNmD FOR PRISON REFORM

Book Review
Use afForce in Florida Prisons
Post Conviction Comer
'"
Notable Cases
'. ."
FI~rida Parole Game, Part 2
Corporate-Sponsored Crime Laws
.."

Phone

Systems

6
9
12
14
21
25

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FLORIDA PRISO~ LEGAL

FLORIDA PRISON LEGAL·

PERSPECl'IVES
P.O. Box 660-387
Cbuluota, Florida 32766
Publlshlng Division of:

FLORIDA PRISONERS' LEGAL AID
ORG.,INC
A 50I(c)(3) Non Profit Orpublulon

Fox (407) 568-6200
Email: fPlp@aolcom
Website: WWW.fPlao.org

FPLAO DIRECTORS
TcraaA Burus-Poscy
Bob O. Posey, CPL
David W. Bauer, Esq.
Loren D. Rhoton, Esq.
OIclIrHallson, CPL

UndaHanson

FPLPSTAFF
TaaaA 8llms-Poscy
BobO.Poscy
0Jcar HIIISOll
Shari JoImson

FPLP ADVISORY BOARD
William VllD Poyek
Philip BasJey-Tcny Vausbn
Michael Lambrix·James QuisteY
Uncia Oottllcb-Susan MllDniq
Enrique DIaz.(]eftc SaIscr .
Midlacl PlIImcr-Matt SlIawood
TrisbMiUs

Perspectives - - - - - - - - - - - . : . . . . -

for operator-assisted non-person-to
person collect long-distance calls and
the surcharge for residential Operator
Station Collect calls set by the interexchange carri~ with the highest
yearly donlestic long distance toll
revenues.
The Florida Public Service
Commission bas approved the rate
cap for opeiator assisted non-personto-person in-state pay telephone
collect calls at a maximum rate of
$0.30 per minute, plus a $1.75
surcharge.
(See
Florida
,Administrative Code 25-24.516 Pay
Telephone Rate Caps.) The eightyfive percent rate would translate· to
$0.255 per minute. plus a $1.487
surcharge. which means $5.31 per
15-minute call anywhere in the state
of Flonda. Of course this rate does
not apply to non-person-to-person
local ~, which cost $1.70 (eightyfive percent of the rate equivalent to
the local coin rate, $0.25, plus a
(RAPE) Reach out And Plunder
Everyone.
$1.7~ surcharge), for a 15-minute
call. The $5.31 per IS-minute call in
The attraction for these
Florida is at least three-times more
telecommunications companies ~
than . the dime-a-minute rate Sprint
exclusive access to a portion of the
charges the outside world.
inmate market. Unlike conventional
For those out-of-state family
pay phones. which let callers use the '
long-distance carrier of their choice,
members. the rate for receiving one
prison phones funnel .all of the
IS-minute call is 4 times the rate for
in-state calls. For example, one 15ininates' calls to a siDgIe company.
minute call to Michigan costs
In Florida, prisoners can make
$19.01. The same holds true for
collect calls only, which is especially
other states like Oliio, Mississippi
profitable to phone companies.
This writer bas
Under the current contrac:t . and Louisiana.
reviewed
phone
bills
from various
between the Florida Department of
parts of the nation and the most
Corrections and MCI WoridCom
chilling was a phone bill from the
Communications. ,which runs until
May 31, 2006,' rates and call
Virgin Islands. This bill showed a
surcharges charged to the called
tota1 of 19 calls during a three month
period totaling 93 minutes at a cost
party for intraJata and interlata
of $179.15. That translates to $1.93
collect calls sba11 be at eighty-five
percent of the rate cap approved. by
per minute I
The contract between the
the
Florida
Public
Service
Commission for operator-assisted
DOC and MCI provides for the
non-person-to-person pay telephone
Department to receive 53 percent of
gross revenues. ,During the 2000collect calls.
For interstate and
200 I fiscal year. the DOC generated
international collect calls regulated
$15,286,142.86 in prisoner telephone
by the Federal Communications
commissions.
The commissions
Commission, MCI is permitted to
charge up to the maximum toll rates
received by the DOC has steadily

. wet dog throws off water.

Once
communication. giants caught wind
. of the idea that a single pay phone
inside a prison could earn its owner
$12,000 a year, companies like MCI,
Sprint and 01hers lined up at prison
gates. The prisoners on the other
'side of the fence would. place
approximately $1 billion a year in
long distance phone calls. But unlike
those on the oUtside, the prisoners
would not have the option to, pick
their long-distance carrier - the
prison does. And so MCI and its
competitors learned that the way to
get prisoners as customers was· to
give the prison system a legal kickback: on a one-dollar phone call, the
Florida prison system would make
over 50 cents. more than the long
distance carrier idelf. In no time.
corrections departments became
phone call millionaires.

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climbed since the early 90's when
such commissions were kicked-baCk
to the Department as an incentive to
award phone contracts to the most
lucrative bidder. Instead of awarding
the telephone contract to the
company that guarantees the lowest
rates for the customer - in this case
families of prisoners-the Department
awards the contract to the company
that
provides
the , greatest
commission, or legal kick-back, to
the DOC. This practice encourages
telephone companies to submit bids
showing large commissions for the
DOC without regard to the actual
rates being charged.,
Under the current system,
the average in-state amount a family
member is charged per month to
accept prisoner initiated collect calls
is $69.19. The average for out-ofstate calls is three and four times that
amount.
Clearly families and friends
of loved ones in prison are being
raped when it comes to prisoner
initiated collect calls. The Florida
Public Service Commission has
openedly identified and labeled
prisons facilities as the last true
"monopoly" environment. As the
PSC reported in a April 24, 1997
memorandum, "the rates paid by
callers are higher than rates charged
to anyone else for station;.to-station
calling." And as if higb-cost alone
wasn't enough, families of prisoners
have been subjected to numerous
instances of overcharging. It began
in 1991 and, not swprisingly, occurs
today.
Overcharges
Since 1991, families of
prisoners who have accepted collect
calls have been overcharged 'eight
different times by seven different·
telecommunications
companies,
totaling over $3.5 million dollars.
In 1991, Peoples Telephone
was ordered to refund $653,000 in
overcharges and was fined $100,000
by the Florida Public Service

Perspectives - - - - - - - - - - - - - -

Conunission.

In

1991,
International
Telecharge was ordered to refund
$750,000 and was fined $250,000.
In 1993, North American
Intelecom was ordered to refund
$414,000 and was fined $25,000.
The
most
outrageous
overcharging came at the bands of
the cUrrent telephone contract holder,
MCI. In 1996, MCI was ordered to
refund $1,6 million dollars. But, the
overcharging was just the tip of the
iceberg. Upon further investigation
it was discovered that two DOC
employees involved in the contraCt
bidding process bad rigged the bids
so that MCI would be awarded the
contract. Those DOC employees
also were fo~d to have attempted to
destroy documents to cover-up their
involvement in the bid rigging
process.
Ironically, the two
employees were simply demoted to
lower· ranks and no criminal c:bar8es
were filed.
The adage that a crimiDaI
will return to the crime scene also
appears true for the criminally
minded.
MCI, who was caught
overcharging.in 1996, appears to be
making a repeat' performance. Under
the current contract, MCI can charge
up to 85 percent of the Maximum
rate cap approved by the PSC for
operator assisted non-person-toperson collect calls made inside the
state.
Following this methodology,
for a prisoner-initiated collect call to
a local exchange, the rate should be
$1,70 (85 percent of the set use fee
ofS.25 =$.2125 and the surcharge of
$1.75 = $1.4875).
When you
combine the 85 percent fees, i.e.
$1.4875 and $.2125, the total comes
to $1.70. However, the local phone
bills reviewed by this writer reflect a
clwge of $1.75," thus, a $.05
overclwge per call.
There does not appear to be
overcharging to' other in-state calls,
but out-of-state calls are suspect. (At
the time of this writing the author

bad not received the long-distance
rate caps from the Federal
Communications Commission.)
What Can Be Done?
During the late 199Os,
organized efforts by prisoners'
families in Nebraska and Nevada
resulted in those states' DOCs beiJJg
forced to forego or significantly
reduce the commissions received by
the prison system off telephone
contracts. That resulted in much
lower rates for prison collect calls.
, In Nevada, because of pressure from
families, the state's Public Service
Commission actually adopted rules
limiting how much commission the '
Nevada DOC could receive on phone
contracts.
In 1999, a lawsuit filed by
prisoners' families in KentuCky
resulted in that state's Public Utility
Commission mandating lower rates
for prison collect caUs.
As family members have
become more vocal in other states,
lawmakers and public service
commissions' have bad· to pay more
attention to their complaints.
Legislation bas been introduced or
studies ordered to be done in several
states to find ways to reduce the
burdens on families.
In 2001, prisoners' families
in New Mexico, tired of the
exorbitant rates, organized and were
successful in having a new law
passed in that state that requires
prisons and jails to provide phone
services at the lowest reasonable
cost.
To achieve that, the law
prohibits prisons and jails from
receiving a kick back commission or
.share of revenues charged by the
phone companies.
'
In Ohio, prisoners' families
recently persuaded the prison system
to require a 15 percent reduction to
rates on all new phone contracts.
And Missouri officials, pressured by
prisoners' families, has announced
that the state's prison system will
foregc> any commission on that

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- - - - - - - - - - . . . . . ; , - . - - - FLQRIDA PRISON LEGAL

state's prison phone contract.
In January 2000, a· national
organization, CURE" started a
campaign
entitled
Equitable
Telephone Charges (eTc.) designed
to .raise awareness of. the huge
financial burdens being placed on
prisoners' families by exorbitant
phone call rates. The campaign.
aimed at educating legislators, has
had some success in several states.
CURE promotes allowing prisoners
to make direct, instead of collect
caDs, through implementation of a
debit card system. Money for caDs
under such a system comes out of
prisoners' accounts, making them
more aware of and responsible· for
how much to spend, while allowing
lower cost calls to be made and
retaining security features .on prison
calls that prison officials insist on.
Several states, including
Colorado,
Indiana,
Vennont,
Tennessee, Iowa and Montana have
systems set up to allow prisoners to
make debit calls.
The Federal
Bureau of Prisons allows prisoners to
make either collect or debit calls.
FPLAO Takes On Phone Rates
In Florida, no relief on the
phone rates has yet materialized. In
1998 and 1999, Florida Prisoners'
Legal Aid Organization lobbied in
TaI1ahassee to try to obtain some
relief for families from the excessive
prison collect phone rates.
Our state lawmakers are the
people who hold the power to bring
change to reduce ,or provide
alternatives to exorbitant prisoner
collect calls. As State Representative
Allen Trovillion told the Gainesvi//e
Sun, "It's an additional hardship on
the families." Trovillion wanted to
find ways for prisoners to make caDs
at a reasonable rate for their families,
or to cut the DOC's commission to
achieve lower rates. To that end, in
2000, Represen~ve :rrovillion
sponsored a bill in the state House of
Representatives· that would have
required prison phone contracts to go

,JJerspectives - - - - - - - - - - - - - _

to the phone company that
guaranteed the lowest rate to those
paying the phone bills, i.e. prisoners'
families. Under that bill, the DOC
would not have received a
commission. Unfortunately, that bill
did not become law. (The text of
that bill can be found at:
www.leg.state.fl.us.
under
the
"Session" section, House Bill 1975
(2000).)
FPLAO is once again
gearing up fOr a major effort to
obtain a reduction in the phone rates
being charged Florida prisoners"
families.
Increasingly, family
relationships and communications
are being strained and obstructed by
the outrageous rates being charged
by MCI WorldCom to meet its
obligation to give the FDOC one of
the highest commissions in the
country for the current phone
contract that is scheduled to run until
2006.
The FPLAO Board of
Directors have voted to take on the
phone rate situations as a project that
will not end until significant relief is
afforded prisoners' families.
All
FPLAO members are called on to
participate in this effort and get
others to participate. Prisoners are
asked to get as many people as they
can on the outside to participate.
We have state· elections
coming up in November. As the first
step in this project, between now and
the election, you are asked ,to contact
your local state representative and
senator, those running for those
positions, and Gov. Jeb Bush, and his
opponents, Janet Reno and Bill
McBride, with emails, phone calls.. or
letters, and simply inform them that
,you are a family member or friend of
a Florida state prisoner who is being
charged enormous and excessive
collect phone rates to maintain
contact with your incarcerated loved
one and you would like to know their
position on reducing that burden on
Please copy
prisoners' families.
FPLAO with any emails sent and

responses
received
at:
fplao@aol.com. Information on how
to contact legislators can be found at:
www.leg.state.fl.us. Jeb Bush can be
emai1ed at:
jeb.bush@niyflorida.com.
Second, log on to FPLAO's
website, www.fplao.org, and check
out the information about the
telephone situation under the Family
Issues section. Stay tuned to that
site. After the election that site will
be used to launch an email campaign
to get legislation introduced and·
passed to resolve the phone mte
problem. That site will also carry
information about events now being
planned to address the situation.
Now, let's get busy and
show the FDOC how to really play
the monopoly game. If you are sick
and tired of the excessive phone
rates, join with us to do something
about it. Right Now! •

AROUND THE
SYSTEM
Severely Restrictive Mail Rules
Proposed. In the last issue of FPLP

it was noted that the FDOC had
proposed new amendments to the
Department's mail rules that are
intended
to
severely
restrict
prisoners'
and
their' outside
correspondents'
ability
to
,communicate. Specifically, it was
noted that the FDOC had proposed
changing the routine mail. rules to
.a1low only 3 pages of "additional
written materials" to be included
with an actual letter and sent to a
prisoner as routine mail. It was
noted that such proposed rule, if
adopted, would prevent prisoners
from having someone outside send
them legal materials they may have
stored with a family member or
friend, or prevent them from having
family members, friends, or typing
services type legal documents for
them. The proposal would also

4-------

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- - - - . - - - - - - - - - flORIDA PRISON LEGAL

prevent the receipt of bank
statements, legal transcripts from
court reporters (which are private
companies and not "courts or
attorneys," and' thus not "legal'
mail"), Internet research. clippings
and any other type ''written
material," except and unless sent 3
pages at a time. For example, under
that proposed rule it would require 7
envelopes, with postage for each. for
someone outside to send a prisoner
20 pages of infonnation about DNA
testing that bad been printed off the
Internet. or 67 envelopes, with
postage for each, to send a prisoner a
200 trial transcript that was stored at
home and )VllS now need to work on
a case.
FPLP noted that the FPLAO
staff strongly objects to the FDOC's
proposed rules in this regard and bad
taken steps to challenge such rule
adoption.
The result of that challenge
was that on August 23 the FDOC
published notice that it is changing
the rule proposal. The proposed
change would provide that instead of
3 that ~ pages of "additional written
materials" could be included along
with letters in routine mail.
,
Additionally, in an effort to
get around FPLAO's challenge which asserted the fact that the
FDOC was attempting to create an
economic barrier to those outside the
prisons ability to send writt,en
material to and communicate with
prisoners - the FDOC added the
following in the change to the
proposed rule:
Requests to send enclosures of
greater than five pages shall be made
to the warden or his destgnee prior
to sending the material. Exceptions
to the five page Itmitation are
tntended for enclosures concerning
legal. medtcal. or other stgntjicant
tssues, and not for material for
general reading or entertatnment
purposes. The warden shall advise
. the sender and the matlroom of hts

Perspecttves - - - - - - - - - - - - -

approval or disapproval of the
request.

FPLAO
has
now
recha1lenged the proposed rules with
the changes. The proposal' remains
infirm. even more so with the
changes.
Five pages instead of three
make little difference to the deterrent·
effect or negative financial impact of
the proposed rule. As in the above
example, that would only mean SO
envelopes and postage for each to
mail the 200 page trial transcript,
instead of 67 envelopes.
As for the "exception by
warden approval." normally it takes a
month or two now for prisoners'
outside supporters to receive a
response to a letter to a warden.
much too long when dealing. with
those
.correspondents'
First
Amendment rights.
Concerning the warden
exception. the term included in same
about "other significant issues" is
vague, fails to establish clear criteria,
and thus is subject to arbitrary and
capricious interpretation by wa{dens
or their designees. .
Additionally, the exception
is not neutral, as required by law,
where it excludes material (or allows
other material) based on subject
matter content not found to be
de.trimental on a case-by case basis to
institutiomil security.
The fact that the ''warden
approval"
process
can be
circumvented by those financially
able and willing to send the exact
same material that the warden cannot
approve as more than five pages
(general reading or entertaimnent
material) by simply sendiDg it five
pages at a time supports that the
proposed rules' intent is not to
achieve a legitimate. penological
purpose, but simply to obstruct
communication.
Nor is there a
provision in the proposed rule
establishing a procedure, where if a
mail sender does apply to the warden

for a page limit exception and is
denied, to appeal the warden's denial
to someone other than· the warden
with authority to oVerturn his
decision, as is required by U.S.
Supreme Court case law.
FPLAO is determined to'
pursue all available remedies,
administrative and legal, to prevent
adoption of these proposed rules.
The ability of those outside to
communicate with. share information
with. and assist those. locked inside
our prisons in maintaining contact
with the .outside world is too
important and too precious a right to
allow prison officials to obstruct any
further than it already is, just on a
whim. Stay tuned to FPLP for
further information on this serious
situation as it proceeds.•

PRISONER
CIVIL RIGHTS
PETITIONS
DECREASE,
WHILE HABEAS

CORPUS.
PETITIONS
INCREASE
Recently the Bureau of
Justice Statistic released a new report
detailing the number of petitions
filed by' federal and state prisoners in
U.S. District Courts during 2000.
The report analyzes the impact that
the 1996 Prison Litigation Refonn
Act and the 1996 Antiterrorism and
Effective Death 'Pen3Ity Act have
had on the number of federal
petitions filed by prisoners.
The report sets out the
statistics showing' that the Prison
Litigation Reform Act (PLRA) bas
resulted in a decrease in the number
ofcivil rights petitions that have

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been filed by federal and state .
prisoners, while the Antiterroiism
and Effective Death Penalty Act
(AEDPA) appears to have resulted in
an increase in the number of habeas
corpus petitions being filed by state
prisoners.
Included in the report are
Statistics and tn:nds concerning
prisoner-filed petitions between 1980
and 2000.
A free copy of the report
entitled: Prisoner Petitions Filed in
u.s. District Courts. 2000, with
Trends 1980.2000, NCJ No. 189430,
is available by writiDg to: NCJRS,
P.O. Box 6000, Rockville, MD
20849-6000, or on the 'nCt at:
www.ojp.usdoj.govlbjs/abstractlppfu
sdOO.htm •

u.s. PRISON
POPULATION
NUMBER SLOWS
A report released during July
2002 by the Bureau of Justice
Statistics shows that the nation's
prison population during 2001 grew
at the lowest rate since 1972 and had
the smallest numerical increase since
1979.
The report found that at the
end of 2001 there were 2.1 million
people in'federal and state prisons or
in local jails. However, according to
the report, there was only a 1.1
percent increase in the number of
incarcerated Americans for that
entire year. That is the lowest
increase for a year since before the
prison building and inparceration
boom began. In filet, states the
report, in the last six months of2001,
the number of state prisoners
nationwide aetua11y deceased by
3,700 people.
This latest report was
released only a month after report
by the F.B.I. claiming that crime is
beginning to increase again after a
decade ofdeclining crime rates.

a

Perspeetlves - - - - - - - - - - - - - -

Allen J. Beck, co-author of the BJS's
report, said .there's no real
contradiction between the two
reports. Beck noted there is always a
lag .between .commission of a crime
and the ' arrest, conviction and
sentencing.
Alfred
Blumstein,
a
criminologist at Carnegie Mellon
University, points to another possible
reason for the stagnant prison
population rates in the face of a'
claimed increase in crime rates. He
notes that the slowing in the number
of prisoners is not only a result of a
decade of falling crime rates, but also
a result of more states rethinking
their prison policies. That rethinking
stems from states trying to save
money where they face budget
problems and where some states
have 'looked more to alternatives to
prison to deal with drug problems.
[Source: NY Times, 7131/02] •

BOOK REVIEW
by Bob Posey
Florida
Prisoner's
Litigation
Manual, Volume One:
Legal
Information on Prison Discipline,
Mandamus, and Appellate Review.
GEO; Albert Publishing Co., LLC;
Softbound; 313 pages; 524.95 plus
S3.95S&H.
Both prison officials and
prisoners have a substantial interest
in prison discipline,
For pris~)D
officials, . their interest is in
maintaining order and the safety of
both staff and prisoners by imposing
disciplinaJy
measures
again$
prisoners who violate prison rules.
For prisoners, what is at stake when
disciplinary action is taken against
them for an alleged rule violation
depends on the alleged charge and
penalties authorized for such charge.
In Florida prisons, prisoners can face
a wide range of punishments if
charged. with violation of prison

rules. Often, prisoners charged with
a rule violation at' the least will find
themselves faced with loss of gain
time if found guilty of the charge in a
disciplinaJy hearing. Additionally,
or alternatively, prisoners can be
placed in confinement for rule
infractions and for certain charges
have mail, telephone, or visitation
access restricted or tenninated.
Repeated, or' what prison officials
view as very serious infractions, can
even result in loss of all gain time
and/or long-term confinement for
many months or even years in what
the FDOC terms Close Management.
Obviously, because of the
sanctions that may be imposed in
prison disciplinary proo:edings,
prisoners have an interest in ensuring
that they are punished only for
infractions that they are aetua1ly
guiltY of. Prison officials, especially
lower ranking staff who interact with
prisoners on a daily basis, sometimes
exceed the purposes and goals of
responsible discipliDe by falsifying
disciplinary reports for a variety of
reasons, including personal dislike,
retaliation,
reliance
on
fil1se
infonnation
from
confidential
informants, etc.
In such cases,
disciplinary procedural rules are
often bent or completely ignored by
disciplinary hearing officials eager to
support their fellow staff member
who brought the charge. Often,
disciplinary . hearing members in
Florida have little actual knowledge
or undemanding of the disciplinary
procedure rules, why they exist, or
what rights under the law prisoners
have when faced with disciplinary
action. Unfortunately, the same is
true of most prisoners.
Most often when Florida
prisoners are accused of a rule
violation of any seriousness, they
will be placed in confinement to wait
for a disciplinary hearing. In such a
situation, suddenly, they realize that
don't know what the rules
governing disciplinary proceedings
are or even how to obtain a copy of

are

6---------------

FLORIDA PRISON LEGAL

them. They may have a vague idea
what the rules are, but often that idea
is based on erioneous infonnation
gleaned from compound gossip.
Panicking, they discover that trying
to get a copy of the disciplinary
. rules, administrative appeal rules, or
other rules, such as those they
allegedly violated, is a whole ordeal
in itself that may not' be possible to
acx:omplish within the time available.
They . also come to realized that itS
almost impossible to get" assistance
from the prison law libraries
anymore and that the few law clerks
left are more interested in criminal
law and have little Imowledge
themselves
about
disciplinary
matters. On top of all that, the
charged prisoner may' have an idea
that there are certain rights involved
"in disc;iplinaIy action, but they don't
know 'bow to do the necessary legal
research to find information about,or
1egal cases that have defined, those
rights. They discover there is no one
source for all that information; its
like a treasure hunt in itself tIying to
track down the information needed to
effectively defend oneself against
disc;ip1inarY ~on, the information is
scattered throughout so many
different sources. At least, that was
true until now.
Recently
I
had
the
opportunity to review the new
, Florida
Prisoner's
Litigation
Manual,
Volume One: Legal
Information on Prison Discipline,
Mandamus, and Appel/ate Review.
In a word, this professionally-printed
all .new and up-to-date manual is
excellent. It is exactly what has been
needed by Floricta prisoners for a
very long time. This manual brings
it all together on Florida prison
disc;ipline into one source, but
,
doesn't stop there.
,
The manual is designed to be
a complete guide for Florida
prisoners defending against. or
legally
administratively
or
challenging. prison
disciplinary
actions, in addition to providing
comprehensive coverage ofhow to

Perspec~ves

--------

_

file and litigate petitions for writs of , Britian's Cadbury Schweppes, to pull
the ad that was scheduled to run 120
mandamus
(whether used
to
to 150 times this year, often on
challenge disciplinary. actions or to
youth-oriented programs.
compel prison or other officials to
comply with the law Oli rules
''No company would make
jokes about rape' outside the prison
governina
them).
•Extensive
coverage is also given to explain the
context," said Lara Stemple, an
attorney .and executive director of
difference between petitions for writs
of certiorari and direct appeals' and
SPR. "Men and women are routinely
raped and sexually brutalized in
how to litigate both.
Divided . into
fourteen.
prisons throughout the country. It's
time to stop the joking and start
chapters, the manual begins with
sections discussing the distinction , taking sexual violence against men
between legislative, administrative, . and women behind bars seriously.",
and judicial law and continues into
7-UP initially responded that
the ad would not be pulled.
. sections on how to read and analyze
rules and legal decisions. There is a
However, in June, as prisoner
advocate groups continued to rally in
well layed out chapter for the
prisoner that has no litigational
support of SPR, 7-UP cbangOO its
experience on how to do legal
position and pulled the ad.
research. That chapter is not just for
the novice, however, it has some
very useful lists detailing where
statutes, rules, session laws, and case
decisions caD be located' on the
Internet and obtained from state
In the last issue of FPLP an
universities.
Also included is a
article
that bad run in the St.
Florida statute .reference listing, •a
Petersburg
Times was the source of
glossary of legal tenns, research
an
article
about
Aramark /
references for further research, and
Corporation,
a
private
company
an appendix of full-sized fonus with
providing food services to Florida
examples ofhow-to-do-it.
state prisoners. Following the Times
An important and much
article,
that paper ran an editorial
needed book, this first volume in the
critical of Aramark, which in tum
F70rida
Prisoner's,
Litigation
resulted in a letter to the editor by a
Manual series has the potential to
citizen basically stating that prisoners
greatly improve conditions of
deserve
whatever happens to them in
confinement for Florida prisoners. It
prison.
That letter sparked FPLAO
is a must-bave self-help survival
director
and FPLP co-editor Oscar
guide for all Florida prisoners. •
Hanson to write his own letter to the
Times' editor, which that paper
printed on July 19. That letter stated:

-CommentarySPEAKING OUT

PRISON RAPE·
NOT FUNNY

The LA-based group Stop
Prisoner Rape, SPR, earlier this year
appealed to 7-UP to stop airing an ad
that depicted prisoner rape as a
humorous punch line. SPR, with the
support of more than 80 other
prisoner advocate groups - including
Florida Prisoners' Legal Aid 01'8.asked 7-UP's parent company,

7

As a Florida prisoner. I
would 'appreciate ~he opportunity to
voice my opinion regarding Aramark
of
Corp..
the
Department
Correction's food-service provider
for most ofFlorida's prisons.
While the department's
prison population
is
indeed
.Incarcerated as punishment for .
crimes allegedly committed against
the slate and its citizens, we, as

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

prisoners, are not stripPed of our
status as human beings living in a
civilized society, albeit
more
restricted one. As such, we should
not be expected to live in the lap of
luxury, but neither should we be
subjected to subhuman treatment.
The July 7 letter to the
editor, Prison is for Punishment,
conceived while the writer enjoyed
his
morning
smorgasbord.
commented that "prison is a place of
punishment. Jt's not a nice place to
be....SO what if their (prisoners ~
sloppyjoes are a little runny?"
Runny sloppy joes are one
thing; spoiled chicken soaked in
vinegar to disguise the rottenness is
another. Further, the writer fails to
recognize that what Aramark has
done in the name of profit would
constitute serious charges should he
receive the same treatment at his
local eatery.
No human - incorcerated or
free - should be comPelled to eat.
rotten food from the hands of a
nefariousfood-service provider.
-Oscar
Hanson,
Sumter
Correctional Jnstitution, Bushnell.

a

PerspectJves - - - - - - - -

the public and letters to newspaper
editors is an excellent way to do that.
You can either exercise your First
Amendment right to speak out, or
you may just find it taken away too.

•

•

"RAT MAN'~
TRAPS $3,000
IN
RETALIATION
SUIT
'by David M. Reutter

A 42 U.S.C. §1983 action.
filed in a Florida State Court alleging
retaliatory job changes for the filing
of grievances and lawsuits that
challenged the ge~eral
living
conditions at Glades Correctional
Institution (Gel) has been settled for
$3,000. In June 1993, I began filing
a large amount of grievances
challenging the living conditions at
GCI, which was built in 1934. GCI
sits on the tip of the Everglades, a
mile south of Lake Okeechobee, and
Whether
osCar's
letter· is. surrounded by sugarcane grown in
caused the writer of the original. the mucky soil; hence, Gel's
editorial letter to change his mind is
moniker. ....The Muck."
not known. However, Oscar's letter
By 1993, The Muck was a
probably did cause some citizens to
dilapidated run down prison that was
at least think about what is going on
infected by rats and insects. Its
in Florida's prisons, and that's what
overcrowded, single story, open bay
is important. Instead ofjust gripping
donnitories an: built on pylons and
and complaining to other prisoners
housed 184 to 242 prisoners each.
~bout what the media was reporting,
While housed in C dorm, I
Oscar took action to have his voice
discovered the putrid smell that
heard by the public. More prisoners
permeated the air was from a pool of
need to do the same.
raw sewage that sat under the dorm.
Letters to editors and
The windows were broken, window
reparters of the media an: considered . screens were ripped or non-existent,
"privileged mail" by the FDOC and
subjecting
prisoners
to
the
the envelopes may be sealed before
Everglade's population of giant
mailing them. There is no reason not
mosquitoes. The roof leaked and we
to write the media, and every reason
marked the floor to· indicate the best
for prisoners to do so. The FDOC
location to set mop buckets when it
doesn't want the public to know what
rained. Electric wiring was exposed,
is really happening in our prisons. It . and there was no battery operated
is prisoners' responsibility to inform
emergency lighting. The guards had

8--

_

keys or radios after the nightly
yard lock down; .they could only
contact assistance by telephone.
My
grievances
and
complaints to Gel and the Florida
Department of Corrections (FDOC)
were met with denials and inaction.
ODly the State Fire Marshall ordered
corrections. After a complaint to the
County Public Health Unit (CPHU)
resulted in an inspection, I was called
for interview with Charles Morris,
Assistant Superintendent of Security,
and was told I would receive a job
change so I would not have so much
time to litigate. It was changed that
day.
I then filed a motion for
Temporary Restraining Order (fRO)
to correct' the unconstitutional
conditions. Ultimately, I -received a
job in the law library as a clerk. By
then, the TRO was set for hearing
and I informed Donald Obrakta, head
librarian, of my deadline. As was
GCI law library custom, he told me
to work on the deadline and do my
job. Such a custom was necessary
because FDOC policy mandates
priority use of all law library
materials is provided to prisoners
with deadlines imposed by rule or
court order. I went to court twice on
the TRO. Upon return the first time,
I was reinstated as a law clerk. The
second time I was tenninated.
Present at the TRO .hearing was
Superintendent Gerald Abdul-Wasi
and John Townsend, Assistant
Superintendent of Programs. At the
hearing. a guard testified he went on
workman's compensation for two
weeks after a rat bit him while
reaching into a cabinet in the guard's
station. Sgt. John Runkles testified
there was a rodent control problem,
and not enough time was being
devoted to correcting that problem.
The Court denied the TRO.
Upo.n return to Gel from the
TRO hearing, Obrakta informed me
Townsend ordered my termination~
Gel
institutional
operating
procedures prohibited Townsend
DO

_

from making such an order.
According to Obrakta's detailed
daily log, be contacted Townsend in
order to respond to my request
seeking the reason for my
termination. Townsend replied law
clerks may not work on personal law
work on duty, and I violated that
rule.
The defendants during
litigation of this action were unable
to provide any' such rule.
On
discovery, I obtained a memorandum
that showed action to create such a
rule was taken 30 days after the
termination. My new job assignment
was as a "Rat' Man" on the newly
created Rodent Control Squad, which
required 'setting rat traps 7 days a
week over a 4 month period. After
denials of administrative remedies in
this pre-PLRA suit, I filed the § 1983
action in state court alleging the job
changes
violated
my
First
Amendment right to be free from
retaliatory action for exercising my
right to file complaints with coUrts
~ administrative bodies.
After eight arduous years of
litigation and discovery, the case was
set on the trial docket and ordered
into mediation. On June 5, 2002, I
agreed to dismiss the suit for $3,000.
As the "Rat Man" I learned
perseverance, adherence to civil
procedure, and a good document trail
catd1es
administrative
rats.
Although Townsend, Morris and
Obrakta avoid admitting liability, the
settlement shows these rats' were
ensnared in the Rat Man's trap.
Many thanks to the "litigation
warriors" who taught me so much
over the years; you know who you

are. See: Reutter v Townsend, Case
No: CL 94-8349A1, Fifteenth
Judicial Circuit Court, Palm Beach
County, Florida:.•

Perspectives - - - - -

USE OF FORCE
AND CHEMICAL
AGENTS
ON THE- RISE IN
FLORIDA
PRISONS
Following the death of Frank
Valdes at Florida State Prison,
corrections officers now must carry a
handheld video camera when .they
use force to remove an inmate from a
cell, called cell extraction.
The DOC also began
installation of cameras .throughout
the state's prison confinement wings,
like the confinement wing where
Frank Valdes .was housed, and is
further considering placing cameras
throughout prisons designated as
confinement or cloSe management
facilities. .
Prison officials state that
improved record keeping and
investigation of inmate complaints
and the videotaping demonstrate
DOC's commitment to prevent
an~ like.the Valdes death from
occumns agam.
Despite the noted changes,
critics argue that loopholes exist.
The most visible example is a rule
ihat exempts incidents where prison
officials use chemical agents, such as
pepper spray, from having to be
videotaped.
DOC figures. show the use of
chemical, agents, which includes
pepper spray and tear gas, increased
17 percent during 2000 and 200I.
Use of force incidents
inc~ed 2.6 percent over the same
two-year period.
,
In a news article published
by the Gainesville Sun, Lisa White
Shirley, an attorney with Florida
Institutional Legal Services in
Gainesville, said, "I don't think that

9

_

it's a sincere effort, and the'
videotaping exemption is an example
of that."
A, representative of the
human right group Amnesty
International said it has "~ous
concerns" about conditions in
Florida's
prisons,
especiaJJy
regarding confinement units and
what it calls overuse of chemical
agents.
Since the DOC began
keeping statistics on use of force and
use of chemical.agents,the nuptbers
continue to escalate. 'the prison With
the highest number of incidents is
FSP, followed by Santa Rosa,
Washington and Columbia.
DOC spokesperson Sterling
Ivey said the Department encourages
the use of chemical agents to avoid
physical contact between officers and
prisoners, which he attributes to the
increase in the number ofincidents.
Christopher Jones, Executive
Director of Florida Institutional
Legal Services, said the problem bas
shifted from beatings to overuse of
chemical sptays. "Our prisoners are
showing up with extensive chemical
'burns," JOnes said. "The injuries
don't match prison reports,.. he said,
''where officers say they only used
three, one-second bursts of the
chemical spray."
Shirley, the attorney with
FILS, who is working on a lawsuit
over the issue of chemical spray
abuse, said they have evidence of
inmates with second-degree bums.
"They're soaking the prisoners." she
said.
Shirley
has
collected
evidence from 15 prisoners at
various prisons for the case.
.
[Note: See Use of Force chart in this
issue- -eel] •

~

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

In memory of those who have 'passed on•••
March
Frank Whitehead· SFRC
Richard Jones· Martin
VVilliam L. Garber· CFRC
Allen R. Linkhom • NFRC
Gabriel A. Baena • SFRC
Charles H. Polite· NFRC
JImmy L. Riggins - NFRC
Rudolph B. Jones - NFRC
Jack Postell- NFRC
Robert J. Durham· NFRC
Solomon Drayton· SFRC
U1anda B. Baker· Lowell W
Charles D. Kushmer - Columbia
Jesse R. MIles - NFRC
Alvin J. Gibson - SFRC
Jacob A. 'Floyd - NFRC
James Davis· NFRC
Leis!'& K. Courtney - NFRC
Juan L Becerra· Washington
Steven J. Caporale. NFRC
John B. Crutchley· Hardee
Ris~y Darden - NFRC

April
, Herman Wiggins ·,NFRC
Donald Hicks· NFRC
Jerome A. Harris· Wakulla
George I. Barkoskie • NFRC '
Bobby Keller - Wakulla
.
Guillermo Sanchez· NFRC
Carlos Lyons - SFRC
King S. Thompson. NFRC
Samuel L. Hunter· NFRC
Edward E. Kirkland - NFRC

April continued
James Burton· So. Bay
Illinois Underwood· Everglades
Zebble Edwards· Lowell W

May
Andrew F. Delaney - Union
VVillie J. Spel1cer· CFRCS
Joseph E. Larose· Columbia
Alfred Vazquez - Opalocka WRC
Lynn O. Feldpausch· CFRCS
Larrl L. Addison - Gulf
VVilliam Curran· NFRC
Broward C. Turner· Okeechobee
VViUie Blacksure • NFRC
Lucious F. Hines· NFRC
Isaiah Alford· Taylor
Bobby L. Brown· NFRC
cecil Johnson· NFRC
Reginald P. Cooper· NFRC

June
Joseph L. Salter· Santa Rosa
Frank L. VVilIiy - NFRC
ArthurL.Barldey-Taylor
Ruben Estrada - NFRC
Wilbur Jenkins· NFRC
Robert Carridine - SFRC
Tanya R. Collier - Hemando
Larry D. Clements· SFRC
VVimam R. Blandon - Jackson
Armando Sierra· Dade
James D. Hall· Martin
Tony Vasquez - SFRC
Robert Rigby. NFR.C. . . . . .

STUN BELTS
IF YOU WERE REQUIRED TO
WEAR A STUN BELT AT TRIAL
PLEASE CONTACT:

ATTORNEY MICHAEL GIORDANO
412 E. MADISON ST SUITE 824
TAMPA, FLORIDA 33602

10--------------

_ _ _ _ _ _ _ _ _ _ FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - -

LOREN D. RHOTON
Attorney At Law

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DIRECT APPEALS
STATE POST CONVICTION
SENTENCE CORRECTIONS
FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS
NEW TRIALS
INSTITUTIONAL TRANSFERS
412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 226-3138
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11--------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - -

POST CONVICTION CORNER
My most recent articles have dealt with the filing
of a U.S.C. Title 28 §2254 petition for writ of habeas
corpus with the federal district courts. Unfortunately, since
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) was passed it has become extremely difficult for
state prisoners to obtain collateral relief from a judgment
and/or sentence in the federal courts. The likelihood is that
a federal 2254 habeas petition will be denied at the district
court level. Unlike at the state level, the petitioner does
not automatically have the right to appeal the denial of a
2254 petition. This article will deal with initiating an
appeal of the denial of a §2254 petition and requesting a
certificate of appealability in order to obtain permission to
pursue an appeal.
'
Once a district court has issued an order denying a
§2254 petition, the habeas petitioner has several options.
Firstly, the petitioner"can file a postjudgment motion
asking the district court to reconsider the denial of the
§2254 petition. Federal Rules of Civil Procedure 52(b),
59, and 60 all provide vehicles for filing such
postjudgment motions. Federal Rule of Civil Procedure
52(b) provides that "[o]n a party's motion filed no later
than I0 days after entJy ofjudgment, the court may amend
its findings- or make additional findings- and may amend
the judgment accordingly.". Therefore, if the petitioner
wishes to request rehearing or reconsideration ofthe denial
of a §2254 petition, a motion should be filed requesting.
such reconsideration within 10 days of the order denying
relief. Such a post trial motion should usually be filed
pursuant to Federal Rule of Civil Procedure 52(b) and
should. be presented in the form of a Motion to Alter or
AmendJudgment.
It is not necessary to file a Motion to Alter or
Amend Judgment in order to pursue an appeal of the denial
of a §2254 petition. The filing of such a motion, though,
does toll (stop) the mnning of the jurisdietional·period for
filing a notice of appeal. The decision whether to file a
Motion to Alter or Amend Judgment or other appropriate'
postjudgment motion is a judgment call on the part of the
petitioner. It has been my experience that once a federal
district court denies a §2254 petition, it is unlikely that a
postjudgment motion requesting reconsideration will be
granted by the same judge. Nevertheless, the right to file

- - - - - - - - - - - - 12

_

by Loren Rhoton, Esq.

such a motion does exist, and, as long as it is
timely filed, does not jeopardiZe the ability to file a notice
of appeal in a timely manner. I recommend that before
filing such a postjudgment motion, though, that the
petitioner determine whether he or she is willing to accept
the additional delay of the appellate process that will
follow. If such a delay is acceptable, then there is no harm
done by filing a Motion to Alter or Amend Judgment or
other appropriate postjudgment motion..
Generally, once a court has entered a final order on
a §2254 petition, the petitioner has 30 days therefrom to
,file a Notice ofAppeal if an appeal is·to be pursued. See,
Federal Rule of Appellate Procedure 4(aXI). The
requirements for a Notice of Appeal are listed in Federal
Rule of Appellate Procedure 3(c) and a Notice ofAppeal
form is provided in Form I of the Appendix of Forms to
the Federal Rules of Appellate Procedure. If a Motion to
Alter or .Amend Judgment or other appropriate
postjudgment motion has been timely filed, then the 30 day
period for filing the Notice ofAppeal begins running from
the date of the entJy of a final order disposing of said
motion. See, Federal Rule of Appellate Procedure 4(aX4).
Otherwise, if no such postjudgment motion has been filed,
the 30 day period for filing of the Notice ofAppeal begins
runnilig from the date of the final order on the §2254
petition.
Once a Notice ofAppeal has been filed, it does not
automBtica1ly mean the petitioner is allowed to appeal the
district court's denial of relief. Unlike many other litigants
in the federal courts, habeas corpus petitioners must obtain
permission to take an appeal of their case to the circuit
court o~ appeals. The permission to appeal must be
granted by either the district court or the circuit court of
appeals. Said permission is granted in the form of a
Certificate ofAppealability (hereinafter, COAl.
Upon filing a Notice of Appeal with the district
court, the district court is automatically required to
determine whether· or not· a COA should be granted.
Federal Rule of Appellate Procedure 22(bXl) provides in
part: "[i]f an applicant files a notice of appeal, tho district
judge who rendered the judgment must either issue 'a
certificate of appealability or state why a certificate should
. not issue." Therefore, technically, as long as the Notice of

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

.Appeal is timely filed with the district court, there is no
need to file any pleadings in support of a request for a
COA. Nevertheless, I recommend that an Application for
Certijlcate of Appealability be filed in the district court
along with the Notice of Appeal. Said Application for
Certijlcate of Appealability should explain to the. district
court why it would be proper for the court to issue a COA.

Title 28 U.S.C. Section 2253(cX2) provides that a
certificate of appealability will be issued only if the
applicant "has made a substantial showing of the denial of
a constitutional right" Furthermore, in Barefoot v. Estelle.
463 U.S. 880 (1983), the United States Supreme Court
held that in order for a certificate of probable cause (the .
pre-Antitenorism and Effective Death Penalty Act
equivalent of the current Certificate of Appealability) to be
issued the appellant must make a "substantial showing of
the denial of [a] federal right."
In defining the
"substantial showing" standard, the Supreme Court
admonished district courts that they may not deny
applications for probable cause certificates solely because
they have already denied the petition on the merits:
"[O]bviously the petitioner need not show that he should
prevail on the merits. He has already failed in that
endeavor" Id. at 893.
The United States Supreme Court held that rather,
a certificate must issue if the appeal presentS a "question of
some substance," i.e., at least one issue: (I) that is
"debatable among jurists of reason,"; (2) "that a court
could resolve in a different manner"; (3) that is "adequate
to deserve encouragement to proceed further"; or, (4) that
is not "squarely foreclosed by statute, rule or authoritative
court decision, or [that is not] lacking any factual basis in
the record." Barefoot at 893. It has been held, in
Hardwick v. SingletaJy, 126 F.3d 1312 (11 1l1 'Cir 1997),
that the standard governing certificates of appealability for
appeal of the. denial of a habeas corpus petition under the
Antiterrorism and Effective Death Penalty Act (AEDPA) is
materially identical to the pre-AEDPA standard for
certificates of probable cause for the appeal ofa denial of a
habeas corpus petition.
Therefore, in an Application for Certlficate of
Appealability, it is crucial for the applicant to demonstrate
a substantial showing of the denial of a federal right.· The
factors listed in Barefoot must be sufficiently argued and
applied to the applicant's case in order to obtain a COA.
While it is likely that the district judge who denied a §2254
petition will also deny an Application for Certlficate of
Appealability" it is still recommendable that the habeas
petitioner file such an application.
.
If the district court denies a request for a COA,
Fedeml Rule of Criminal Procedure 22(b)'also provides for
.the issuance of a COA by the circuit court of appeals.
Once again, there is no explicit requirement that a formal

Perspectives - - - - - - - - - - - - - -

Application for Certijlcate of Appealability be filed with
the circuit court for the circuit court to grant a COA. See
Federal Rule of Appellate Procedure 22(bX2).
Nevertheless, it is strongly recommended that such an
Application for Certificate ofAppealability be filed with
the circuit court if and when the district court declines to
issue a COA. The right to appeal the denial of a §2254
should not be left to the chance that maybe one of the
courts will see that a COA is appropriate. It is better to
spoon feed the courts the precise reasons that a COA
should Issue.
While it is rare that permission to appeal the denial
of a §2254 petition is granted, COA's are occasionally
issued and petitioners do sometimes pursue appeals to the
federal circuit courts ofappeals. Therefore, I hope that this
article has been helpful in pointing habeas corpus
petitioners in the right direction when attempting to obtain
aCOA.
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•

13-----

CRITICAL
RESISTANCE

SOUTH
Strategizlng beyond the
prison industrial complex

.APRIL 4-6, 2003
NEW ORLEANS, 'LA
For more info and to get'
involved, contact:
CR South
PO Box 791213
New Orleans, LA
70179-1213
phone: 504.837.5348 or
toll free: 866.579.0885

_

FLORIDA PRISON LEGAL

Persped1ves - . . , . . . - - - - - - - - - - - -

The following are summaries of recent state and federal cases that may be useful to or have a significant Impact on Florida
prisoners. Prisoners Interested In these cases should always read the full case as published In the Florida Law Weekly (Fla
L. Weekly); Florida Law Weekly Federal (Fla. L Weekly Fed.); Southem Reporter 2nd Series (So.2d); Federal Supplement
2nd Series (F.Supp.2d); Federal Reporter 3rt1 Series (F.3d); or Supreme Court Reporter (S.Ct.).

FEDERAL APPEAL COURT

Ford v. Moore, 15 Fla. L. Weekly,
Fed. C 717 (nib Cir. 7/2102)
.
This case involves the
habeas corpus time limitations set
forth in the Antiterrorism and
Effective Death Penalty Act of 1996
(AEDPA).
AEDPA sets forth a one-year
statute of limitations for a prisoner to
apply for federal habeas relief from
the judgment of a state court. The
limitations period is tolled, however,
while a properly filed state post
conviction petition or other collateral.
review attacking the pertinent
judgment or claim is pending.
At issue in this case is
whether AEDPA's statute of
limitations is tolled when a state
collateral attack does not present a
federally cognizable claim.
The 111b Circuit aligned itself
with both the Ninth and Seventh
Circuits in light of the Supreme
. Court opinion in Artuz v. Qennett,
531 U.S. 4 (2000). The Court held
the plain language of the AEDPA
statute merely demands a state
cballenge related to the pertinent
judgment or claim at issue, not that
the state cballenge must be based on
a federally cognizable claim.
[Note: This case involved a Rule
3.800 motion that the 11 th Circuit
deemed an attack on the judgment
notwithstanding the fact that this
particular motion attacks the
sentence ofa conviction.)

Tucker v. Moore, 15 Fla. L. Weekly

Fed. C 914 (11 th Cir. 7113/02) .
In this case the Eleventh
Circuit 'resolved a question left· open
in the case of Smith v. Jones, 256
F.3d. 1135 (lIth Cir. 2001) as to
whether the discretionary review
exhaustion rule of 0 'Sullivan v.
Boerckel, 119 S.Ct. 1728 (1999),
would also apply to 2254 petitioners
seeking
review
of
Florida
convictions.
"
In an important decision, the
Eleventh Circuit held that in the
absence of stronger indication that,
there was an established right to seek
review in ,the Florida Supreme Court,
the Boerckel rule does not apply to
petitioners who invoke the required
"one complete round of the State's
established appellate review process"
and use "the State's established
appellate review procedures." There
is not a requirement to resort to any
"extraordinary procedures."
(Note: The method of review
involved in the Boerckel case was "a
nonnal, simple, and established part
of the State's appellate review
process.'1
FEDERAL DISTRICT COURT
Carruthers v. Jenne, 15 Fla. I,..
Weekly Fed. D 358 (S.D. Fla.
6/24/02)
•
Ollie Carruthers filed a
action with respect to conditions of
his confinement while housed in the'
Broward County Jail system.

On July, 1994, the parties
entered into a consent decree, which
was ratified· by the United States
District Court, Southern District of
Florida.
The consent decree provided
for broad prospective relief with
respect to confinement conditions
and monthly payment of the
Plaintiff's attorney fees, as well as
compliance monitoring, which would
be completed by the Plaintiff's
counsel.
In August, 1996, subsequent
to the enactment of the Prison
,Litigation Reform Act (PLRA), the
Defendants filed a Joint Motion to
Terminate /Dissolve Consent· Decree.
The motion remains pending.
On August 2, 2.00 I, the
Court appointed an expert to
examine the conditions of the
Broward Jail and prepare a report as
to their constitutionality. The report
has yet to be filed.
'
The Defendants argued that
until the Court rules on their Motion
to Terminate, all prospective relief is
automatically stayed by operation of
thePLRA.
The. Court rejected this
proposition and held the automatic
stay provision of the PLRA stay only
prospective relief within· a consent
.decree and not the consent decree
itself. Attorney fees and monitoring
. cost are not prospective relief for
pulpOSCS of PLRA, and neither is
automatically stayed by operation of
thePLRA.

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, Johnson v. Bush, IS Fla. L. Weekly
Fed. D 441 ( S.D. Fla. 7/18/02)
Thomas Jefferson and seven
other lead Plaintiffs filed suit against
the state of,Florida on behalf of all
Florida citizens conVicted of felonies
who have completed their sentences
but nonetheless remain ineligible to
vote
because
of
Florida's
disenfranchisement law.
The Plaintiffs alleged that
the
disenfranchisement
law
arbitrarily and irrationally denies
them the right to vote because of
race, discriminated against them on
, the 'account of race, and imposed an
improper pon tax and wealth
qualification on voting in violation of
the First, Fourteenth, Fifteenth and
Twenty-Fourth Amendments to the
United States Constitution.
The United States District
Court for the Southern District of
Florida held that the state of Florida
was entitled to summary judgment
on
claim
that
Florida's
disenfranchisement law violates
substantive due process and equal .
protection
under
Fourteenth
Amendment, give clear Supreme
Court precedent, which held that
felon disenfranchisement laws do not
violate the Due Process Clause or
Equal Protection Clause found in the .
Fourteenth Amendment.
As for the First Amendment
claim, the Court held it does not
guarantee felons the right to vote.
The Court went on to reject the
remaining claims and granted
summary judgment to the State of
Florida.

FLORIDA SUPREME COURT
State v. Byars, 27 Fla. L. Weekly S
625 (Fla. S.Ct. 7/3/02)
In this case the Florida
Supreme Court accepted jurisdiction
to resolve the issue of whether a
restraining order enjoining a
defendant from entering a structure
applies to structures "opened to the
Plclblic" for purposes ofa burglary ,

Perspect1ves - - - - - - - - - - - - - -

charge.
The Supreme Court held that
existence of an injunction prohibiting
defendant from entering his wife's
place of employment' is irrelevant to
strict analysis of whether premises
are open to the public. For pwposes
of the burglary statutes, the· issue is
not whether defendant has been
prohibited from entering a structure,
but whether "the premiseS are at the
time open to the public." In other
words, it is the nature of the property
that is described in the applicable
statute, not the status of a person.
Thus, the' Supreme Court
agreed that the trial court properly
dismissed burglary charge that ~
based upon defendant's having
entered wife's place of employment,
which was open to the public, in,
violation of existing domestic
violence injunction.

[Note: It is possible for a defendant
to' be charged and convicted for

trespass under the facts of this case.]

Hall v. Stale, 27 Fla. L. Weekly S
627 (Fla. S.Ct. 713/02)
In this case the .Florida
Supreme Court addressed the
constitutionality
of
Florida's
Criminal Punishment C<xIe codified
under Section 921.002, Fla. Stat.
(Supp. 1998).
In
addressing
each
constitutional challenge, the Supreme
Court held that the Criminal
Punishment Code does not violate
due process rights, does not violate
constitution prohibition against cruel
and unusual pllnishmerit, '~ not
violate double jeopardy principles,
does not violate right of access to
courts or right to appeal, does not
violate principles of separation of
powers, and does not violate holding
of United States Supreme Court in
Apprend/ v. New Jersey.
Spencer v. F.D.O. C., 27 Fla. L.
Weekly S 646 (Fla. S.Ct 713/02)
Florida,prisoner Randy

..

Spencer petitioned the Florida
Supreme Court for a writ of
mandamus seeking to overturn the
finding of frivolousness and a
restoration ofhis gain time as a result
of a disciplinary report.
Spencer's odyssey began
when he filed a civil rights complaint
in the United States District Court,
which ,was dismissed without
prejudice for Spencer's filiIure to
comply with Court's order: Spencer
appealed the decision and sought to
proceed without paying the filing fee,
but the federal district court found
the appeal bad been taken in bad
faith. The Eleventh Circuit Court of
Appeals upheld the .order and
dismissed the appeal as frivolous..
The Eleventh Circuit's Order was
sent to the prison where Spencer was
incarcerated,
,which
instituted
disciplinary. proceedings, held a
hearing, and made a finding of guilt
forfeiting 120 days of Spencer's gain
time pursuant to Section 944.279,
FIa. Stat. (2001).
The Court held that no due
process violation occumd as alleged
by Spencer. Statute provides co~rts
the authority to refer inmates to DOC
for discipline when they have
engaged in misconduct in the
judicilllY, including federal courts.
Further, despite Spencer's claim,
discipline for frivolous suits does not
violate prisoner's rights to free
speech and to petition the
government.
Tormey v. Moore, 27 Fla. L. Weekly
S 661 (Fla. S.Ct. 7/11/02)
Keny Tormey, a fonner state
prisoner, bad petitioned the Florida
Supreme Court for a writ of
mandamus prior to her release.
arguing that the single subject clause
of the Florida Constitution was
violat.ed when a new provision
enhancing punishment for all
murderers was added to the Law
Enforcement Protection. Act, which
origina1Jy only enhanced punishment
. for offenses committed against law

--------.....:.---,..----15 - - - - - - - - - -

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- - - - - - - - - - - - - FLORIDA PRISON LEGAL

enforcement personnel.
rcoffender as defined in this section,
The
Supreme
Court
such defendant is not eligible for
recognized that the title to the new ' sentencing UJ;lder the sentencing ,
legislative act indicated that it was
guidelines and must be sentenced [as
"an act relating to criminal
a prison releasee reotrender]."
penalties:' it goes on to significantly
Brazeail v. State, 27 FIa. L. 'Weekly
narrow and restrict types of criminal
D 1606 (Fla. lit DCA 7/9/02)
penalties addressed in the act. An
honest reading of the title results in
Florida prisoner, Thomas
the conclusion that the act provided
Brazeail, appealed an order rendered
for increased "criminal penalties" for
by the trial court that denied his
persons who commit criminal
motion for post conviction relief.
offenses against law enforcement
Brazeail entered a plea of
personnel and only law enforcement
guilty to various offenses and
personnel.
received ~ negotiated prison sentence
, The Court further noted that
of seven years. Later, Brazeail filed
the exclusion of provisional credits
a motion for post conviction relief
for persons convicted ,of general
under Rule 3.850 and alleged that his
murder is not reasonably connected
plea had not been voluntarily,
with the expressed subject. The
knowingly, and intelligently entered
Court determined to sever part of the
because his counsel had inconectly
act that was not properly identified in
advised him that he would be eligible
the title.
for release after serving no more than
In finding a single subject, four years ofhis sentence.
violation, the Supreme Court held
The First DCA held that
only those persons who were
misadvise by counsel that· defendant
excluded from receiving provisional
would be eligible for release after
serving no more than four years of ..
credits because of general murder
exclusion created by chapter 89-100,
his sentence when, in reality,
section 4, Laws of Florida, who
defendant would have to serve at
committed their offenses on or after
least 85 percent of his seven year
January 1, 1990, but before May 2, . sentence stated a colorable claim for
1991, the date on which the
relief since he alleged be would not
have entered plea but for the
Legislature reenacted the provision,
misadvice.
will be entitled to relief under this
The First DCA recognized
opinion.
conflicting views of whether a
defendant must also make further
FLORIDA APPEAL COURT
f3ctual allegations that there is a
reasonable probability that the
Nettles v. State, 27 Fla. L. Weekly D
ultimate outcome of the prosecution
1432 (FIa. lilt DCA 6/17102)
would have been more favorable for
question in this case is
him had be not entered the plea.
whether a defendant may, pursuant to
The
Court
extensively
a negotiated plea, be sentenced under
discussed the other state court ruling
both the Criminal Punislunent Code
'that relied on Hill v. Lockhart, 474
(CPC), and also the Prison Releasee
U.S. 52 (1985) to require these
Reoffender Act (PRRA). The First
additional filctual allegations in order
DCA held that such a sentence is nOt
to satisfy the prejudice prong
nec:essarily illegal and certified
established
in
Strickland
v.
c:oofIict with State v. Wilson, 793
Washington, 466 U.S. 668 (1984).
So.2d 1003 (FIa.2d DCA 2001) and
The Court held that a
Irons v. State, 791 So.2d 1221 (Fla.
defendant's allegations that he ,would
51b DCA 2001), which held where the
not have entered a guilty plea had he
state attorney establishes that a
been accurately advised by counsel
defendant is "a prison releasee

. The

I

Perspectives - - - - - - - - -

_

of the consequences is a sufficient
allegation of prejudice. " The
prejudice test to be applied under
these ,circumstances is not whether
defendant would have, ultimately
fared better had "he not entered plea,
but whether he would have entered
the plea had be been competendy
advised by counsel.

Roberts v. State, 27 Fla. L. Weekly D
1539 (FIa. 3d DCA 713102)
Florida prisoner SOlomon
Roberts sOught appellate review' of
the trial courts' denial of his
"Petition To Invoke All Writs," and
argued that be Was denied due
process and equal protection when
the trial court retained jurisdiction
for thirty-three (33) years of his life
sentence. Roberts argued that the
trial court lacked statutory authoriiy
UDder Section 947.16 (3), FIa. Stat.
(1981), to retain jurisdiction over
one-third of his life sentences
because a life seirtence is indefinite.
The Third DCA agreed and .
cited Cordero-Pena v. State, 421
So.2d 661, 662 (FIa.3d DCA 1982)
for its reasoning. As in CorderoPena, the DCA held the trial court
cannot retain jurisdiction over a life
sentence imposed under section
947.16 (3) and that a defendant's
entitlement to parole consideration is
solely controUed by the separate
statutory requirement that he be
required to serve no less than twentyfive years before becoming eligible
for parole. See Section 775.082 (I)
Stat. (1981).
[Note: Effective October I, 1995,
parole eligibility for capital felonies
was eliminated].

Zollman v. State, 27 Fla. L. Weekly
D 1579 (Fla. 2ad DCA 7110/02)
In this case the Second
District Court of Appeal held that it
was error to', summarily deny
Zollman's Petition For DNA Testing.
ZoUman had been convicted of
sexual b~ry, kidnapping and
robbery. As a result of the recently

---------------16 -----'---

_

- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL 'PerspeCtlves ---~-----------

euacted Rule of Criminal Procedure
3.853, Zollman sought DNA testing
of the contenis of a rape kit, victim's
;clothing and cigarette butts found at
the rape scene.
The circuit court denied the
motion on the ground that it was
fucia11y insufficient. The Second
DCA disagreed. The Court held that
role 3.853 (b), subsection 4, requi~
a defendaDt to allege sufficient filets
to establish two things: firs4 that
identification was a genuinely.
disputed issue at trial; and second,
that the .requested DNA "testing
, would either exonerate the defendant
or mitigate his sentence.. In this case,
the appellate court found Zollman.
made sufficient allegations on both
issues.
Because ZoUman made

sufficient allegations that would bear
directly on his guilt or innocence, the
case was reversed for further
proceedings.
[Note: Rule 3.853, unlike Rule
3.850, does not allow the trial judge

to simply summarily d~y the motion

if the record conclusively shows that
the defendaDt is not entitled to relief.
Rather, if a Rule 3.853 motion is
filcially sufficient, the trial court must
order a response. However after
Considering the State's response, the
trial court may either enter an order
on the merits of the motion or set the
motion for hearing.) •

ADVERTISING NOTICE
Due to a concern for' our members, the FPLP staff
tries 10 ensure that advertUas I in these pages an:
reputable and qualified \0 provide the services being
offcted. We C4IU1ot meet every advertiser, however,
so members an: advised to always personally contllet
advertisers for further infonnalion' on their
qualifieatiollS and experience beflllC making a
decision to hire an attorney or other professional
service provider. You should never send legal or
other documents to an advertiser before cbntacting
them and receiving cliJections to send such material.
For those wishIng to advertise in FPLP, please write
for rate infonnalion. Address such mail to:
Rorida Prison Legal Pcrspcclivcs
AIlD: Advertising
P.O. Box 66ll-387
Chuluolll, FL 32766

Or
Email: FPLP@aol.com

DAVIp W. COLLINS, Attorney at Law
former stale prosecutor with more thIui 1S years ofcriininallaw experience
AV" rated by Martindale-Hubbell Bar Reg#ster 0/Preeminent Lowyers
fA

Yo",. voice In TlI1ltdIqssee representing prisoners in all
. aretlS ofpostJoConv!ctlon relief, Including: - .
appeals

Heuscases
.habeas corpus
'3.850 motions

writs of mandamus
clemency
representation before Parole Commission

W,lte me today abo~t your easel
P.O. Box S41
t4onticeUo, FL 32345
(850) 997-8111
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- - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspect1ves - - - - - - - - - - - - -

,

MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices ofMichael V. Giordano
412 E. Madison Street, Ste. 824
Tampa, Florida 33602
(813)'228-0070
A STATEWIDE pmctice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**

**PAROLE**
**DIRECT APPEALS**
**HABEAS CORPUS**
**POST~CONVICTION

RELIEF **

*INEFFECTIVE COUNSEL
*WITBDRAWALOFPLEA
*ILLEGAL SENTENCES
*ACTUAL INNOCENCE
*I.N.S. DEPORTATION
I am a fonner Assistant State Attorney (Felony Division ChieO. Assistant Public Defender (Lead Trial Attorney), and member of the·
faculty at the University of Florida College of Law. I have devoted over 25 years to the teaching and practice of criminal defense law,·
and I am an author of a 1,250 page text on federal practice in the Eleventh Circuit The major thrust of my practice has been postconviction oriented. There is approximately 70 years .of combined experience in my office. I do not believe you can find more
expe~enced representation in the Stat~ of Florida or elsewhere.

The hllllll of a lawyer is lID importanl decision IbIll should not be haicd solely on odYatisc:mcIlIs Befonl )'0\1 decide. a* us 10 send you me written infonnalion a»oot our qualiliCllIlOOS

18---------------

FLORIDA PRISON LEGAL

Perspect1ves

Perspectives: Inside ~ Out

cheaper to lock a man up now than allow him to jump in and out of
plison in the future.
,
There are people in here that have lost any right to ever be free, or
really to breathe. But the lartJer portion of the "hardcore criminal's"
Florida wants to lock up' and let die in prison, are drug addict's that
don't even know how to steal to support their habit. Soon it will be a 5year felony for prostitution. Drug's and poverty are the enemy, not the
people, regardless of race.
Make a choice to get out and stay out, make this insane experience
mean something, make your life mean something. BAMA

Oreetingsl My name is Edward Bailey, I work at Oviedo Publishing.
and in the course of my work I am sometimes in the position of
working on your newsletter. Many times when we print we only
examine the paper in the context of printing (on the press) as opposed
to reading it. With your publication, however, I always read It, and over
the last two years that I've been working at Oviedo, I've become very
impressed with your work. Keep up the good workl .
Dear FPLP, I am a new subscriber and have only received one issue. I
enjoy reading eaCh of them, but most of the guys that receive them are
either, not willing to share their copy with others, or they have several
people waiting to read them when they pass them on. I think it's
wonderful that you are all so dedicated to helping others see what is
truly going on in our judicial system in this state.
I had the privilege to meet Oscar at another institution when I first
came into the system, and I found him to be someone that is not out to
sell someone a dream. He is a realistic person that is only out to help
others to help themselves. Oscar knows that when I first came into the
system, I only had a sixth grade education, but as detennined as I've
been, I now have my OED and attending a computer course to further
my knowledge. Thank you Oscar for being a friend to others.
I have developed a strong friendship with some wonderful people
through correspondence, and they have kept me optimistic and fighting
my case. Your publication is very important to me also, so please keep
them coming. LH TCI

Dear FPLP, I receive the newsletter and wanted to ~II you how much I
enjoy it. This is the only way I can find out what is going on in Florida.
I am a Florida inmate doing my time here in TN. On an interstate
compact, I have a life sentence and have been in for 26 years, hope to
go home soon. Thanks MM TN
Dear Perspectives, I would like to thank you for the time and effort you
put in your magazine. I do enjoy reading it especially the Post
Conviction Comer. I find so much tnith in what you write. Thanks. W
NCFRC

FPLP, as the new era of the FL DOC begins, does anyone care? I really
don't believe anyone does. Do you? I've been building time since the
70's Sumter, Brooksville road Prison, Polk, Baker, Marion, Hamilton,
Jackson and Lake. I got out in '97' and just got violated for technical's
this year.
To be honest I'm overwhelmed with the insanity I've found, and
experienced since my return to the New FDOC. I've witnessed inmates
being tortured, assaults by brown shirts and white shirts on prisoners.
It's like open season or more like Dante's hell made real on earth. No
one knows why Valdez got kicked to sleep pennantJy. We all know he
was murdered. Not the first, not the last to meet his fate in a concrete
box.
Back: in my day beatings were used as an educational tool the'lesson
was, "your tn prison you don't run shit". I myself once brought on an
understandln~ session upon myself. A convict knew, don't cross the
line. and you were safe. as far as brown shirts went Everyone
remembers K wing slim, Nigger Charlie, Breezeway Red, Sbithouse
Shorty. Also a few at the Rock, I've never met, but have heard about,
many other brutal Legend'S of the FDOC. I guess what I'm saying is
Valdez was no hero. He was a convict. He made his choice, cheated 01 '
sparky, the hangman, or whatever they use now to kill people the state
decides needs killing.
Florida has built one massive prison system. And are scraping the
barrel passing new laws every day to keep it full. We're no longer
punished for what we've done. We're punished for what we might do.
Because as was explained to me, the powers that be have decided it's

FPLP, now that I'm away from Gulf Annex, I have a little tidbit for
you.
The Osterback case made it illegal for the prisons to put coverings
over the windows in the T donns especially in CM, as it was inhumane
sensory deprivation: Gulf Annex still bas the coverings on 2 T-dorms,
P and 0 dorm and refuses to take them down. The men in these dorms
are doing regular time without any disciplinary problems, some
minimum custody, yet the window blocks are up.
Ijust thought I would mention it, as it is sadistic and wrong for them
to do that and also be allowed to violate a court ruling. There are many
other atrocities going on at 0 A that should be dealt with. JM BD W C
Dear Razorwire, May 10th was my second anniversary of being In
prison. Today was the scariest of all of them combine. I witnessed a
young woman being brutally beaten down with a baseball bat. Horrific?
Extremely. But the part that is the most disturbing is that it could have
all been avoided. Just yesterday the same two were fighting and
yesterday was not the first time either! Within minutes the entire yard
was complete chaos. Making the whole situation worse was several
inmates actually cheering the girl on. You see the inmates expected this
whole situation. The 'batter" (for lack of a better term) had been
waiting all day for an opportunity. She had been carrying an unopened
soda in her back pocket all day. I assume in her warped mentality an
aluminum baseball bat would make a better statement. After all of the
brouhaha the compound was closed. Then I had to come back to dorm
being run by a male officer who is from the Men '5 unit across the
street. He it under investigation for bringing in a gun. A man with
AIDS' gave him up', while on his deathbed. Florida"Department of
Corrections has the gall & audacity to claim Care. Custody &
Control"?
r
beg
to

a

It

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives --------~-----

differ. The women's unit is full of drugs, heroine, crack, powder coke or
pot, not to mention the misuse of
Psychotropics. Take your pick! It's all here. A week ago Saturday there
was 6 fights before lunch. I sincerely wish more people out there knew
about what is really happening on the inside. Perhaps some of these lazy,
illiterate people (guards) might have to .worle to earn their living Instead of
smuggling in drugs or guns, or turning their backs while people are dieing.
Name withheld at authon request.
FPLP, Rotten food and shortages are nothing new for prisoners I thanlQ you
for making it known to the public for the few who care.
I would like to bring to your attention the long term medical effects are
devastating from improper nutrition, and no vitamins or mineral
supplements. In 1997 I developed Gastric Reflux Disease, and Irritable
Bowel Syndrome, all long-term effects from eating rotten garbage. There
are many inmates suffering digestive and intestinal disorders. In the future
my esophagus and stomach linings will erode and then what?
But again Bush brags about how much money they save at our expense.
Bush employing Aramack was a conflict of interest, wash my back I'll
wash yours. Respectfully LM DCI
Dear FPLP, I am wriling in reguards to an incident that took place here at
Charlotte C I on August 25, Inmate John Harlow has been in a wheel chair
ever since I met him back in 2001. Recently with the arrival of a new
Doctor, Dr. Dranler, his wheel chair was taken from him. I along with
numerous other inmates can attest that John cannot walk two steps with out
extreme pain. While on a visit the District Di~r Marta Villacosta gave
John back his wheel chair after personal appeals from many concerned
inmates. On Monday Dr. Drattler again took Johns wheel chair and sent it
to the property room with strict instructions not to return it to inmate
Harlow under any circumstance. I was a witness to this. Fast-forward to
Sunday the 25'" of August, John hasn't been 10 the chow hall in six days
because he can't make it there; well he was called to the visiting park to see
his daughter and brother. John has to crawl on his hands and knees. The
assistant warden stands and watches him. When two inmates try to help
him the warden orders them to drop him. screamiftg, "he can walk". A Sgt..
Finally gets him a walker from medical and it takes the two inmates
helping him to finally get there IS minutes later, a normal4().second walk.
After crawling and fighting with a walker the AssL warden allows. him a
wheel chair only after bitching him out and of course for his family's sake.
Five minutes into Johns visit He DIED! And sadder to the story his brother
had a stroke. John was my friend and I am mad as hell! Wexford runs the
medical here and their main concern is saving money not treating inmates.
The same as ~ost prisons. I believe it is a lot worse here. We have many
inmates with hepatitis C. Because Inferon is so expensive they just do not
treat them. Numerous grievances are filed most go unanswered: Well
nothing will bring John back but I hope and pray that justice is reached
here. I hope John's life does nol go out in vain. TI CCI
Dear FPLP. Over the years I have written the Perspectives many times,
never have received any replies, but I write it off as .. The Perspective can
not answer all the letters received." Then I wonder if in fact the letters
reach you across the state, we do not know if our letters are received by the
Perspective at all and thought that perhaps a page in the Perspectives could
mention or list the letters received but cannot be answered. Being
inc8rccrated since 1967 I feel that this would make men/women not feel
they are unheard. Its hard for people in prison to give support to others
when they feel that no one is listening and only a few are recognized.
The Perspective is a movement for all and many of us understand what
it takes to keep it going, but sorry to say thousands ofothers don'L
The "new breed" as I call them. doesn't understand that what the "ole
timers" are going through today- will affect them tomorrow. As I see it the
so-called System has regressed into a deeper hole and in time no one will
be able to climb out.
The Perspective has ~n the light into that hole from the beginning and
only support can keep its light from burning out, if that happens, its total
darkness.
I've always told others "once you confine your mind and heart all hope
for you is lost, stay alive inside your head and heart, and you can beat the

system by' the use of pen and paper. We must do the time and nol let time
do us."
I want to let you know I read every line written in your publicalions
even when they are not mine, so keep the truth coming. Sincerely JB
GCI
Dear FPLP, I would like to say what a wondcrt'ul job you are doing to keep
the inmates informed as to what Is going on in the'state prison system. I
read your latest edition and I must say Bravol What an excellent job. Keep
up the good worle. JH HCI
.
Thank you for your SepL 19 message that " you can find all of this
information on our web page www,fplao,org." I have spent a good bit of
time looking at your web page, and congratulate you on the excellent
information that is there, and thank you for the good worle your
organization docs. Email Audrey RIvers
Dear Friends: As Prison Reform Unity Day approaches, we are faced with
the usual mix of enthusiasm from some states and silence from others. We
are at a loss to understand why this is so, since it's universally
acknowledged that no state has a prison system which respects the basic
human rights of prisoners and their families.
We know this is NOT ok with the folks who are receiving this message.
Many of you are getting actively involved In demanding changes in'
America's penal system beyond exchanging e-mails, writing lelters'and
signing petitions, but many more ofyou are not.
Exchanging e-rnails, writing I~ and signing petitions are good steps to
take, but let's be honest here; thus far these things have NOT brought about
any noticeable changes. That's because a few e-mails, letters, and sparsely
signed petitions here and there are easily ignored - millions of voters
stand'fg in unity are NOT!
A few e-malls, letters and petitions are not even local news. Millions of
voters standing outside prisons, state capitols, court houses, at the graves of
murdered prisoners all across the country on the same day would
be INTERNATIONAL NEWS, and force our government to address the
problems we and our loved ones live with daily.
Ifyou are tired of worrying about the safety ofyour incarcerated loved one;
if you are tired of horrible visiting conditions; if you are tired of paying
exorbitant long distance bills; If you are tired of state murder; if you are
tired of the cruelty of Segregation Units; if you arejust plain sick and tired
of how you and your loved one are being treated, then DO SOMETHING
ABOUT IT! Coordinate or participate in a rally in support of the basic
human rights ofprisoners and their loved ones on October 19!
There are at least TEN MILLION PEOPLE in this country whose lives are
DIRECTLY AFFECTED by the inhumane conditions in America's
prisons. Individually, we have no power. Small groups and organizations
have little or no power and few, if any successes. But all of us together are
a FORCE no politician can ignore.
It's not going to happen ovemight. Nothing this big ever is. Many people
are reluctant to participate in public rallies for various reasons - allhough
none that I've ever heard are valid. The bottom line is, if something is
important to you, you will find a way to do. it. We all have to talk to other
prison visitors while we wait in line, and encourage them to participate in
PRUP. We can't reach the people who aren't online without YOUR HELP!
The prisons will change even if we don't all participate. The problem is
that the changes will be forWORSE, instead ofBETrER! If that's not ok
with you, please participate in a Prison Reform Unity Day observance in
your state. Please don't think that there will be enough people without you.
Only YOU can fill your place in a rally, and it's going to take ALL OF US
to get the job donel Email LINDA TANT MILLER

20----------

_

- - - - - - - - - - - - - - F:LORIDA PRISON LEGAL

-PARTTWOTHE FLORIDA
PAROLE GAME
by Bob POsey
The
Florida
Parole
CommiSsion (FPC) bas been around
for more than 60 years and continues
to exist today, although parole was
abolished. in Florida in 1983 for
almost all prisoners who have been
incarc:erated since that date. How
does the Commission continue to
survive? How does it jUtHy' its
existence? Why bas it proven to be
impossible to phase out this largely
redundant and taxpayer-revenuedraining bureaucracy, and when will
it end? Those questions and more
are not something citizens in Florida
sit around and ask themselves. The
public, if it is even conscious that
there is stiD a Parole Commission in
Florida, has little, if any, correct idea
wbat the Commission does, and
probably cares less. The only ones
who does care are a minority; family
members and friends of the
remaining 5,000+ Florida prisoners
who are parole-eligible and who the
Commission ruthlessly has trapped
as pawns in a game where the
Commission controls the board.
Even those people who do
care find it hard to remain infonned
about the FPC. The Commission,
with an arrogance born from decades
of welding almost unquestionable
power over who was released or who
remained· in prison, coupled now
with a desire to avoid close scrutiny
as to why it still exists, cloaks itS
activities in mysteJY and obfuscation.
And its not only paroleeligible
prisoners
and
their
supporters who are stymied by the
Commission.
Occasionally, state
lawmakers have questioned the
FPC's existence and are surprised
with the resistance encountered
against clumging the Commission in
any manner.
Iri the meantime, those
prisoners locked into the Parole

Perspect1ves - - - - - - - - - - - - - -

Commission's game keep
older, Florida taxpayers
continue to fund and agency
time, and the agency itself
basks in the shadows cast
Florida sun.

getting
blindly
past its
blithely
by the

Confident and Strong
According to

the Parole
rudimentaIy website,
the "Commission is confident and
strong; By working towards its goals
and planning for the future, the
Florida Parole Commission will play
an important role in the State"s
Criminal Justice system in the new
millennium." Just "where does such
confidence come from?
The
Florida
Parole
Commission is authorized by the
Florida State Constitution under
Article IV, Section 8 (c), which
states:
C~mmission's

There may be created by law a
parole and probation commission
with power to supervise persons." on
probation and to grant paroles or
conditional releases to persons under
The
sentences for crime.
qualifications. method of selection
and terms, not to exceed six years, of
members of the commission shall be
prescribed by law.

Where
the
Parole
Commission is a constitutionally
authorized body, any changes to its
overall powers and duties can only
be made by amending the Florida
Constitution in one of two ways.
The State Legislature may propose to
amend the State Constitution by a
joint resolution passed by three-fifths
vote of both the Florida House of
Representatives and the Florida
Senate. The proposal then would
have to be placed on the general
election ballot.
The second method of
changing the Florida Constitution, to
change or even abolish the FPC's
fundamental authority, would require
a citizen-led initiative to have the
proposal placed on the ballot. To do

that is a huge undertaking.
Foremost, a percentage of Florida"s
population, approximately 450,000
people would have to sign. a petition
in tavor of the proposal.
The
signatures would then have to be .
verified by the Florida Elections
Commission, and if approved, then
the proposal could be placed. on the
ballot.
Funding the organization
DeCeS5aJY to get a citizens'.initiative
on the ballot is often very expensive,
frequently requiring hundreds of
thousands or even millions of doUais,
unless there is a large group of
dedicated people willing to collect
signatures.
However, even if either of
those two hurdles could be oven:ome
and the proposal is placed on the
.ballot, the biggest hurdle would
remain - convincing the voting
public to vote for the proposal. The
FPC has reason to be confident those
hurdles cannot be jumped.

Masters or Survival
In 1975 the state Legislature
enacted
the
Correctional
Organization Act of 1975 (Chapter
75-49, Laws of Florida) and created
the
Department
of Offender
Rehabilitation (what is now the
Department of Corrections), thus
reorganizing the correctional system
into a separate state agency. .
new Department of Oftender
Rehabilitation was made up of the
Division of Corrections, which
fonnedy had been a division of the
Department
of
Health
and
Rehabilitation Services, and the field
staff of the Parole and Probation
Commission. The Act transfim'ed
the authority to supervise persons on
probation or parole for felonies from
the Florida Parole Commission to the
Department of Corrections. contrary
to the supervision powers granted to
the Parole Commission by the
Florida Constitution.
The Parole Commission
challenged the Act in Howard v.
Askew in the second judiciai circuit
and the court declared the

-------------21---__....:.-

m

_

flORIDA PRISON LEGAL

supervision-transfer provisions of the
chapter law unconstitutional. Rubin
Askew, then governor of Florida,
who bad signed the Act into law,
appealed the lower courts' decision
to the Florida Shpreme Court, which
ruled, without ever addressing the
merits of the case, that the petitioners
lacked
standing
to
appeal.
Apparently, a backroom deal was
struck with the Parole Commission
not to push the issue as no further
action was taken and the .DOC
continues to (unconstitutionally)
provide supervision to released
prisoners and probationers.
Though unconstitutionally
stripped of its supervision staff, the
Parole Commission survived the
1975 reorganization. In 1983 that
survival was shakened when the
parole system was abolished in favor
of guideline sentencing.
The
Lqjislature
left
the
Parole
Cominission entact to deal with those
prisoners, already sentenced to
parole-eligible sentences, but clearly
notified the Commission that it was
to wrap up its business in that regard
over the next few years as the
Commission would eventually be
phased out
The end of the
Commission was in sight.
By the end of the 1980's,
however, under the new guideline
sentencing scheme, the Florida
prison system was bursting at the
seams. Lack of prison capacity and
federal litigation concerning prison
overcrowding forced the state
Legislature to craft several early
release valves. Two of those valves
were Conditional and Control
Release.
The Conditional Release
Program was created in 1988. Under
conditional
release,
guidelinesentenced prisoners convicted of
serious .crimes are subject to
mandatory supervision (by the DOC)
after prison. equal to the gain time
received while incarcerated. This
allowed some early releases to
alleviate overcrowding, but wasn't
enough.

Perspectives - - - - - - -

_

In 1989 the Control Release
having not been in office during the
Program was created. That program
Commission's heydays befOre and
established a uniform criteria for
shortly after 1983 when parole often
determining the number and type of
depended on who you knew or could
guideline-sentenced prisoners who
payoff, went into the 1996
could be released early under
Legislative session detennined to cut .
supervision (again, by the DOC) to
the Commission down to size.
maintain the prison population below
Bills were introduced in both
99 percent of lawful capacity.
houses that would have transferred
Neither of those prograDlS
almost all duties of the Commission,
had anything to do with parole. But
except the parole decision-making
the Parole Commission, tettering on
function, to the Departlilent of
the brink of elimination, saw them as
Corrections. If passed, the bills
potential lifesavers.
Although
would have reduced the Commission
release under either Conditional or
to about SO employees, down from
Control release was largely an
over 200, and would have slashed its
administrative function that could be
budget from over $10 million to $3
performed by the DOC (that 'would
million a year. The bills sailed
provide the actual supervision
through House and Senate Criminal
anyway) the Parole Commission
Justice Committees with approval
called in political "favors" and
before the Commission could
lobbied other lawmakers to be
marshal its defenses, but once it did,
included in the programs. The result
the fight was on. When the dust
was,
essentially,
the
Parole
settled, the compromise reached was
Commission being given the
reducing . the
number
of
authority to review release decisions
commissioners from 6 to 3, cutting
made by the DOC and to approve
approximately 50 employees, and $3
them.
Once again the Parole
million from the budget.
Commission was given a new lease
Then Rep. Robert Sindler,
on .life. And although control release
chainnan of the House Corrections
was ended in 1994, when prison
Committee, commenting on the
capacity increased with the prison
Legislature being stymied in its
building boom, conditional release
intent, said, 'They have a lot of
remains in effect and was the Parole
political coMections and they call
Commission's bread and butter
them in. They (Parole Commission)
throughout the 1990's (along with
are a master at surviving."
the decreasing pool of parole-eligible
prisoners).
And the Game Continues
Viewing the 1996 cuts as
The real test to the Parole
only a minor setback, by Fiscal Year
Commission came in 1996. The
2000-2001 the Commission again
attention of lawmakers in both the
had over $10 million a year in budget
House and Senate turned to the
and almost ·200 employees, again.
Parole Commission fOllowing a
Going into the 2001 Session,
string of publicized events. The
lawmakers again sought to cut the
Commission had been accused of.
releasing early the son of a business
Commission and were only partially
associate of then Gov. Lawton
successful.
Many of the
,Chiles. One parole commissioner,
administrative
functions
beina
Gary Latham, was in the news
performed by the Commission
accused of sexually harassing a . concerning conditional release, 'that
secretary. And the Commission was
were also being done by the DOC,
were turned entirely over the DOC.
being vilified in the press for the
mistaken release of more than 100
And the Legislature mandated that
prisoners. Lawmakers, many of who
the Commission close and relocate
owed no favors to the Commission,
its field offices to unused space

--------------22----

_

------~------ FLORIDA PRISON LEGAL Perspecttves - - - - - - - - - - - - -

~DOCmci~~.Nosipffi~

cuts were made to employ~ or
budget, however. And no action was
taken (or suggested) to provide any
relief or benefit to parole-e1igible
prisoners.
On June 30, 200 I, there were
825 people on parole in Florida that
bad been released from the state's
prison system. On that same date
there were 5,682 Florida prisoners
remaining in the system who were
parole-eligible.
The
Parole
Commission has worked it out so
those people are its ace·in·the-hole.
Each year a few will be released on
parole as an almost equal number
have their parole revoked and are
returned to prison, largely for petty
"technical" violations, to make up for
those released.
In that way the
Commission never runs out of game
pieces.
.
In Fiscal Year 1998-99, for
example, II0 were released on
parole, 116 had their parole revoked;
in 99-00 only 89 were released on
parole, but 96 had their parole
revoked; and last year, 00-01, there
were 101 released on parole and, by
an amazing coincidence, 101 had
their parole revoked. But then, its
hardly surprising that few parol~ are
granted, during the 2000-2001 Fiscal
Year parole detenninations only
made up: 8 percent of the
Commission's entire "operations"
(less, it is expected, than what was
devoted to coffi:e and smoke breaks).
Growing old, an endless
round of mostly fiuitl~s hope,
failing health, poor medical care,
suffering and then death in prison.
That's what most Florida parole·
eligJble prisoners have to look
forward to a,s long as they are willing
to be pawns in the Florida Parole

Release Workload of FPC;" Auditor
General Report No: 13433, "Audit·
Function of the .Florida Parole
Commission.'1
[Note: The first part of this article
appeared in the last issue of FPLP.
This article is not intended to be allinclusive.
~uch more could be
written about the Florida Parole
Commission and the conundrum
parole-eligible prisoners' are in, and
more will be written. As stated in
the note to Part One, a special section
of FPLAO's new website, at:
www.fPlao.org, has been devoted to
the parole issue in Florida with the
intent to create debate and activism
on the problem.
At tl$ point
FPLAO is interested in hearing from
parole-eligible prisoners to determine
if they, and how many of them, are
interested in joining· a project to
place pressure on lawmakers to make
the Parole Commission more
accountable and to step up the
release of those who have .been
languishing in our prisons now for
20, 25,30, and 35 or more years
waiting to be paroled. If FPLAO
hears from enough parole-eliSible
prisoners, FPLAO will take the
project on, and changes will come.

of all kinds
~ord Processing
Desktop Publishing
Resume
,Electronic Mailing (email)
Black I Color Printing &
Copying
Coli Binding
Laminating
. Faxing
etc.
CALL OR WRITE

£.'E'J' !MY :FINfi'E'RS 110
YOl11t TyPIN(i .
SastfraZ. tr6o.as
1911 Marcia Dr., Orfando, FL 32807

4 0 7 • 2 7 3 • 4 0 9' 9
OPEN 2417

By Appointment Only

1===::s:i5iiii!!!======::========!!iE!!!:===II

Write: FPLAO, Attn: Parole
Project" P.O. Box 660-387,
Chuluota, FL 32766. Write to<hlY!]

Game.
[Sources: FPC, FCC and FDOC
Annual Reports; Florida Constitution
'and Statutes; The Tampa Tribune,
3120/96; St. Petersburg Times,
3/8/96; OPPAGA Report No: 9544,
"Information Brief of Control

23 - - - - _ - - : -

_

- - - - - - - - - - flORIDA PRISON LEGAL

Perspectives - - - - - - - - - -

FAMILIES * ADVOCATES

* PRISONERS

On the Web Now!
During June 2002 Florida Prisoners' Legal Aid Organization, Inc. (FPLAO), .
. launched an exciting and innovative new website. Over the next few weeks
and months this site will become a major source of news, information,
resources and advocacy for Florida prisoners and their families, friends, and
loved ones. Spread the news about:

www.fplao.org

News - Resources - Family Issues - Parole - Florida prisons ~ GrassRoots
Activism - FAQ's - Myths & Facts about the Florida prison system Bulletin Boards - Telephone Rate Monopoly - Civil Rights - How To
Inform~tion - FDOC Rule making - Family Visitation - Post Conviction
News - Parents in Prison - Reports - Inmate Welfare Trust Fund - LinksLegal Assistance Sources - Upcoming Events - Maintaining Family Contact
- Getting Involved- Abuse Alerts - Interactive Site - Courts & Cases - and
much, much, more.
-

Now Available:
Become an FPLAO member, renew a membership, or make a
donation online.

24 - - - - - - - - . ; . . - - - - - : - - - - -

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - -

Corporate-Sponsored
Crime Laws
by John Biewen

Over the past tWo decades.
America's
prison
population
doubled, then doubled again. before
finally leveling off at abaut two
million inmates. One result: a $50billion con-ections industry. Thcll's
bigger than tobacco. The crackdown
on crime has enriched corporations
that build prisons or sell products to
them. prison guard unions, and
police departments that use budgetfattening. incentives to pursue drug
criminals. In this special report.
American
fWdio
Works
con-espondent John Bielven explores
how some groups with vested
interests work to influence public
policy- helping to keep more people
locked up longer.

Prison

Industry

a

Revenue-

Generating Opportunity
The annual trade show sponsored
by the American Correctional
Association is like other big trade
shows: a sprawling bazaar of
colorful display booths. This one
fills a huge hall at the Pennsyivania
Convention Center in Philadelphia. It
brings together shoppers - mostly
prison administrators
and
hundreds of vendors hawking their
wares. You can find plenty of
companies selling the basics, of
course:
prison' design
and
construction; fence and razor wire;
. uniforms as wett as RIT dye to colorcode those uniforms and a system for
stamping them with· numbers and bar
codes;
handcuffs;
surveillance
equipment; janitor services; steel
doors and powerful locks and the
electronic control rooms from which
to operate them. The major phone
Sprint,
companies are here Verizon, AT&T and the Bells and
former Bells - vying to provide
cotlect-call service to inmates'
families. DuPont shows off a new

lightweight, Kevlar protective vest
just for prison guards. It won't stop a
buttet but it will protect against
inmates attempting to "stab and
slash" the officer, explains Dupont's
Gary Burnett. Of the 450,000 guards
in the nation's prisons and jails,
"only about fifteen-percent of them
are now protected, so the goal is to
get protection on as many as
possible," Burnett says. ,
Then .. there's the eye-catching
B.O.S.S. chair. With its wires and
straight back and gray finish it looks
electric. But it's nQt what you think.
It's the Body Orifice Security
Scanner, a device designed to detect
metal contraband hidden inside the
body. "We're looking for handcuffs,
keys, razor blades, smatt shanks,
etcetera. Basically tI1e person sits
down in the chair; if they have any
metal contraband hidden in the
vaginal or anal cavity," the chair's
display panel lights up and beeps,
explains David Turner of Ranger
Security Technologies. You can get
a B.O.S.S. chair for $5,000.
On its Web site, the American
Correctional Association points to
the $50 billion spent each year to run
the nation's prisons and jails. And it
warns companies, "Don't miss out on
this . prime
revenue-generating
opportunity."

Is the Prison Industry Self.Serving?
Think of it. Two million prisoners
eat six million meals II day. Here to
help meet that need is Jim Carrol1 of
Canteen Correctional Services. "We
provide
food
services
and
commissary services to correctional
facilities nationwide. It Inmates get
sick. Another corporation, the St.
Louis-based Correctional Medical
Services, is the leading provider of
"comprehensive medical care in jails
and prisons on a contract basis,"
explains company representative Jim
Chaney. Prisoners exercise and kill
time in the game room. "We sell a lot
of sporting games, board games,

puzzles, table games to prison
facilities," says Brian Wexler, Vice
President of Sales and Marketing
with Quality Table Games. Some
people point to all this money being
made on prisons and wonder: Is the
industry serving the needs of
inmates, or is it the other way
around? Outside the convention
center in Philadelphia, a few hundred
people block traffic for a peaceful
march through Center City. These
protesters say a powerful web of
private and public interests - the
prison-industrial
complex
perpetuates the war on crime for
money. ''No more prisons I No more
prisons!" they chant. A young
woman shouts through a scratchy
megaphone: "We are no longer
asking. We are demanding! No more
making money off of the flesh of
other
human. beings!"
Some
conventioneers with the Correctional
Association seem bemused at the
notion that they're causing people to
get locked up.
"I think it's Halloween in
Philadelphia,
man,"
says
conventioneer Ray Zaroufie as he
waits to ~ss the street outside the
convention center and w~tches
chanting protesters dressed in striped
imitate costumes. Zaroufie works for
a Tennessee-based company that
supplies prison commissaries. "00
prisOners got to eat?" he asks. "00
they' got to shave? I . mean,
somebody's got to sell that to the
state to put in those jails and the
prisons, right?" Zaroufie has a point.
Just because people make a profit
from prisons, that doesn't mean
there's a corrections lobby that works
to drive up the inmate population.
Certainly other forces have helped to
do that. Crime soared in the 1970s
and '80s. The news media devoted
headlines and the tops of newscasts
to the crack epidemic and gang
warfare. Many Americans .were
alarmed. Politicians from both major
parties seized the issue and held on
tight. For two decades, a political

2S - - - - - - - -

_

.....- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

consensus prevailed: the nation
needed tougher sentences, more
police, more prisons. Sure, when it
snowed prison-related contnlcts,
businesses flocked to grab them. But
do corporations also try to boost
demand for their services? To some
activists concerned about a "prisonindustrial complex," the American
Legislative
Exchange
Council
presents a striking case in point.

Corporate-Sponsored Legislation
The
American
Legislative
Exchange Council ALEC for
short - is not well known to the
general public and doesn't try to be.
But the organization, founded in the
early 1970s, boasts of helping to pass
hundreds of state laws every year:
From tax cuts .to loosened
environmental regulations to longer
prison sentences. "As you know,
ALEC plays a vital if understated
role in shaping our national agenda,"
Tennessee State Representative
Steve McDaniel told a luncheon
audience of a thousand at ALEC's
8llnual meeting last summer at the
Maniott Marquis in New York City's
\he unsung
Times Square.. "We
heroes of American public policy."
More than a third of the nation's
state lawmakers - 2400 of them are members of ALEC. Most are
Republicans
and
conservative
Democrats. ALEC says its mission is
to promote free markets, smallgovernment, states' rights, and
privatization. Members gather at
ALEC meetings to swap ideas and
form "model legislation." Legislators
then take those "model" bills home
and try to make them state law. In a
luncheon speech to the group, former
Wisconsin
Governor
Tommy
Thompson-now
the
Bush
administration's health and human
services
secretiry-fondly
remembers his days as a state rep
and an early ALEC member in the
1970s. "Myself, I always loved going
to these meetings because I always
found new ideas. Then I'd take them

are

Perspectives - - - - - - - - - - - - -_ _

back to Wisconsin, disguise them a
little bit, and declare that 'It's mine.;"
In forming and spreading its
ideas, ALEC gets help from
corporate leaders. More than a
hundred
companies
co-sponsor
ALEC conferences including
Turner, a construction giant and the
nation's number one builder of
prisons; and Wackenhut Corrections,
a private prison corporation. Another
200 companies and interest groups
join ALEC as ."private-sector
members." They pay dues for the
privilege of helping to write ALEC's
model bills. The result is corporatesponsored legislation, says Edwin
Bender of the National Instih;1te on
Money in State Politics. "Bayer
Corpo~iOll or Bell South or GTE or
Merck pharmaceutical company
sitting at a table with elected
represen~tives, actually hammenng
out a piece of legislation - behind
closed doors, I mean,· this isn't open
to the public.' And that then becomes
the' basis on which representatives
are going to their state legislatures
and debating issues."

Tough-on-Crime
Measures
Increase Prison Population
ALEC's
corporate
members
include at least a dozen companies
that do prison business. Like
Dupont; the drug companies, Merck
and Glaxo Smith-Klein; and the
telephone companies that compete
for lucrative prison contracts. And
Corrections Corporation of America
(CCA). It dominates the private
prison business building and
running prisons and renting cells to
governments. At last count the
company housed 55,000 inmates in
'65 facilities in twenty-one states and
Puerto Rico, says CCA Vice
President Louise Green. Neither
CCA nor the American Legislative
Exchange Council will say how
much CCA pays for its ALEC
membership. The latter group's
corpO'1lte memberships go for
$5,000 to $50,000 a year. Green says

belonging to ALEC gives the
corrections corporatiQn a chance to
explain the benefits of privately-run
prisons to state lawmakers - "that if
those states and counties have
considerable overcrowding in their
jails and prisons that partnering with
a private corrections company can
realize cost savings to their taxpayers
and we can offer effective
programming for their inmates."
But CCA does more than chat up
lawmakers at ALEC meetings. On
top of its membership dues and
contributions to help pay the bills for
ALEC meetings, the prison company
pays two thousand dollars a year for
a seat on ALEC's Criminal Justice
Task Force. That panel Writes the
group's "model" bills on crime and
pU!lishment. Until recently, a CCA
official even co-chaired the task
force. 'For years, ALEC's criminal
justice committee has promoted state
laws letting private prison companies
operate. And at least since the early
I 990s, it has pushed a tough-oncrime agenda. ALEC officials say
proudly that lawmakers on the
group's crime task force led the drive
for more incarceration in the states
- "and really took the forefront in
promoting those ideals and then
taking them into their states and
talking to their. colleagues and
getting
their
colleagues
to
understand that if, you know, we
want to reduce crime we have to get
these guys off the streets," says
ALEC staffer and Criminal Justice
Task Force director Andrew
leFevre.
Among ALEC's model bills:
mandatory minimum sentences;
Three Strikes laws, giving repeat
offenders 25 years to life in prison;
and "truth-in-sentencing," which
requires inmates to serve most or all
of their time without a chance for
parole. ALEC didn't invent any of
these ideas but has played a pivotal
role in making them law in the states,
says Bender of the National Institute
on Money in State Politics. "By

26------

~_

- - - - - - - - - - - . . ; " . - - - - FLORIDA PRISON LEGAL

ALEC's own admission in its 1995
Model Legislation Scorecard, they
were very successful. They had
introduced 199 bills [that year]. The
Troth-in-Sentencing Act had become
law in 25 states, so that right there is
fairly significant." By the late 1990s,
about forty states had passed
versions of truth-in sentencing
similar to ALEC's model bill.
Because of truth-in-sentencing and
other tough sentencing measures,
state prison populations grew by half
a million inmates in the 1990s even
while crime rates fell dramatically.
The result: more demand for private
prison ~ompanies like CCA.

Trutb-in-sentencing in Wisconsin
In Wisconsin, a group of
lawmakers led passage of truth-insentencing in 1998. "Many of us,
myself included, were part of
ALEC," says the bill's author,
Republican state representative Scott
Walker.
"Clearly ALEC had
proposed model legislation," Walker
recalls. "And probably more
important than just the model
legislation, [ALEC] had actually put
together reports and such that
showed the benefits of truth-insentencing and showed the successes
in other states. And those sorts of
statistics were very helpful to us
when we pushed it throug.., when we
passed the final legislation."
But a former head of Wisconsin's
prison system, Walter Dickey now a University of Wisconsin Law
Professor says he finds it
"shocking" that lawmakers would
write sentencing policy with help
from ALEC, a group that gets
funding and, supposedly, expertise,
from a private prison corporation. "I
don't know that they know anything
about sentencing," Dickey says.
"They know how to build prisons,
presumably, since that's the business
they're in. They don't know anything
about probation and parole. They
don't know about the development of
alternatives. They don't know about

Perspectives - - - - - - - - - - - - -_ _

editor of the recent book, The Crime
how public safety might be created
Drop in America. other likely
and defended in communities in this
factors include economics, changing
state and other states."
drog markets, demographics, and
The Wisconsin Department of
social change - that is, more young
Corrections says the truth-inpeople catching on that drug use and
sentencing law will add to the state's
trafficking
are
self-destructive.
prison population in the years to
Simple cause and effect equations
come. A recent analysis by the state
like the one produced by ALEC estimated that the 990 inmates
crediting truth-in-sentencing with a
imprisoned just in the first 21
given state's dropping crime 'rate months after the law took effect
are frequently used by advocates, not
would spend 18,384 additional
scientists,
Blumstein
says.
months in jail, costing taxpayers an
"Whenever somebody with an
extra $41 million. That's money in
the bank for Corrections Corporation . interest in some aspect of the crimefighting business is asked why crime
of America, the company that sits on
has gone down or gone up, somehow
the committee that wrote ALEC's
troth-in-sentencing bill. Wisconsin is
they always are able to point to the
issue they're most interested in as the
a CCA customer. Its prisons are
overcrowded, so the state houses
cause of it."
more than three thousand inmates at
CCA facilities in Minnesota,
Tbe Place of Profit in Criminal
Oklahoma, and Tennessee. The price
Justice Poliey
The Corrections Corporation of
tag: more than $50 million a year;
Representative Walker says he
America booth, with its black and
understood that CCA and some other ,. yellow logo, has a prominent place at
ALEC contributors stood to profit
the
American
Correctional
from the truth-in-sentencing bill. He
Association trade show. CCA's Vice
insists he took that into account
President of Customer Relations,
James Ball, says CCA does not, take
before deCiding to sponsor the
measure. "Oftentimes that's your
an active role in writing or
greatest challenge, as a legislator, is
promoting ALEC's model sentencing
trying to weed through what
bills. "You don't see CCA
everybody's hid~en agenda is, and
advocating for longer sentences;
figure out who's giving you credible
that's not true. If government,
information and in many cases
through its elected representatives,
playing one interest off of another to
identified that, well, we are going to
try and figure out what the truth is.
need to provide for public safety by
More information to me is better,"
incarcerating individuals - that is
Walker says.
not a vendor-driven issue," Ball says.
Still, Walker says that he and his
Asked if giving money and time to
fellow ALEC members relied on an
the American Legislative Exchange
ALEC report that credited Virginia's
Council doesn't constitute support
truth-in-sentencing law with a fivefor tough sentencing policies, Ball
year drop in that state's crime rate.
says ALEC is just a research group
The trouble is, crime dropped in all
and doesn't drive public policy. In
states in the 1990s whether or not
fact, ALEC's stated mission is to
~ey passed laws like troth-indrive public policy.
sentencing. Experts struggle to
The
former
Wisconsin
understand why, but they generally
Corrections Administrator, Walter
give sentencing policies just a small
Dickey, says he paid close attention
fraction' of the credit, says
to the debate over truth-in-sentencing
criminOlogist Alfred Blumstein of
in Madison. "There was never any
Carnegie-Mellon University and
mention that ALEC or anybody else

27------

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

,had any involvement" in the crafting'
of the bill, Dickey says. The public
debate over criminal justice policy
- how to make the' streets safe,
what it means for the punishment to
fit the crime - is an especially
profound one, Dickey argues, in
which profit has no place.
"As I used to tell the troops when I
worked in corrections, we lock the
door, we deny people autonomy and
freedom, the most cherished things
in American' life. I've always
understood political people as having
differences of opinion - tough on
crime, soft on crime. But I've usually
thought that whatever views were
being held in. that debate, they' were
sincerely arrived at. And to discover
that there's a group pushing criminal
justice policy not because it's in the
public interest, but because it's a way
to make money, is disappointing to
me."

•

[First broadcast April 2002. Copyright
2002,
Minnesota Public Radio.

Reproduced with pennission of
Minnesota Public Radio. American
RadioWorks® is the dOcumentary unit of
Minnesota Public Radio and NPR News.
The American RadioWorks website is at
http://www.americanradioworks.orgl.]

Perspectives - -.......- - - - - - - - - - - - -

•~··················I
Critical resistance
•

·•
•

SOUTH

Beyond the Prison
Industrial Complex

•

New Orleans. April 4-6, 2003

'

.•
•

•
•

•
•

.

•

•4t The New Orleans event will be a working meeting, ••
• packed with strategic discussions, skills-building and •
• educational workshops, and more.
•

•• We will gather to create a space in which dialogue, ••
•
•
•
.'

relationships, skills, and resources can be shared that
will add to the foundation for the kind of movement
that will be necessary to take us beyond prisons and
police.

•
•
•
•

•• What you can do as a prisoner: . Help spread the ••
• word to families lind mends; Submit writing, music, •
artwork, tape or video recordings for presentation at
: the conference; Participate in a session; Propose :
topics for workshops.

•• Please contact the Southern Regional Office
• PO BOX 791213
• New Orleans, LA 70179

.'...........
• PHONE: 504-837-5348 or
• 0885

toll free

• www.criticalresistance.om
•

mlnllthliilr.ritil'.llJ......iVllnl'.P. nnr

••

•
,.
@ 866-579- •
•

..
•

~

•

28---------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - -

to charge Thompson with secondAL - During July it was announced
degree
murder.
However, upon
that the Alabama DOC will set up a
checking, Ober stated that· the
hospice program to care for
detectives claim Williams pushed for
terminally ill prisoners at the state's
the ·tougher charge. Ober's office
prison for aged and infirmed
later reduced the charge against
prisoners. The program will be set
Thompson to manslaughter.
up at the Hamilton Aged and
Infinned Center and will allow dying .
FL - On July 3 the Office of State
. prisonerS to remain in geneml
Comptroller informed, the Florida
population with other prisoners as
Correctional
Privatization
long as possible and will allow
Commission (CPC), which oversees
prisoners' families more involvement
prison privatization in Florida, that
and cOntrol over the dying prisoners'
former CPC Executive Director
care.
Mark Hodges had made an unlawful
expenditure of state funds to pay for
AL - Lethal injection became legal
legal fees defending ethic charges
in Aiabama on July 1, replacing the
against him.
The Comptroller
electric chair, but no death row
concluded that Hodges had used
prisoners will be executed until the
$6,582.62 of CPC funds to pay an
state acquires lethal injeCtion
attorney to defend him on ethic
facilities. Additionally, the state's
charges initiated bya Complaint filed
Supreme Court. has imposed a
moratorium on setting any execution
by the. Fla. Police Benevolent Assoc.
dates for the 183 prisoners on death
In Jan. the Fla.. Commission on
row while it considers the effect of a
Ethics found probable cause to bring
seven charges against Hodges for
recent U.S. Supreme Court decision
violating state ethics law.
tbat held only juries, not judges, can
The
charges involved Hodges' outside
impose a death sentence.
. criminal justice consulting business
and using his CPC position for
CO - Lawmakers in Colorado went
personal gain.
into a special session during July to
try to fix the state's death· penalty
An
assistant faciliiy
laws. Colorado was one of a few . FL
states that allowed judges to impose
administrator. at a privately-operated
a death sentence. The U.S. Supreme
state" juvenile lockup was fired in
July when a Dept. of Juvenile Justice
CoUrt recently ruled that".practice is
unconstitutional, holding that only
irivestigation found he had held a 16year old prisoner in' a headlock,
juries can make Such a decision.
punched him in the face and threw
him against a wall for flooding his
FL - Claiming that she had lied to
him, Hillsborough County State
cell. The facility, Cypress .Creek, is
Attorney Mark Ober fired top
operated by Correction Services
homicide
prosecutor
Shirley
Corp./Youth Services International
Williams in July.
According to
on behalf of ~e state.
Other
Ober, in June sheriff detectives
prisoners and staff verified that Bill
charged Alan Thompson, 21, with.
Newkirk had assaulted the prisoner
second-degree murder in the . without provocation.. Other staff
punching death of high school senior
.claimed Newkirk had later bragged
Christopher Fannan, 18, this past
about what he had done to the boy in
May. Williams had told Ober that . a staffmeeting.
the detectives decided on their own

_

FL - .Former corrections guard
Deritha E. Barth, who· worked at the
juvenile facility Cypress Creek
Academy, avoided prison for having
sex with prisoners by a plea 'bmpin
in July.
Barth was fired from
Cypress Creek in Jan. when two c0workers said they caught he~ and a
19-year old prisoner on' the
prisoner's bed with their pants down.
According to those witnesses, Barth
was kneeling on the bed with' the.
prisoner sitting behind her. Both
Barth and the prisoner claim no
intercourse took place. With' further
investigation, Barth was charged
With sexual misconduct for having
sexual intercourse with ~ Cypress
Creek prisoners, all over the age of
18. Under the plea agreement, Barth
was sent;enced to 100 community
service hours' and a $200 tine. The
Citrus County circuit judge agreed to
withhold adjudication, which means
there is no formal finding of guilt. .
The judge told Barth when
sentencing her, ''They (prisoners)
must have been lining up in South
Florida to come to Cypress Creek
when they heard about you."
FL - Federal District Court Judge
Ralph Nimmons, Jacksonville, is
expected to rule on a class-aetion.
lawsuit brought on behalf of Florida
death
row
prisoners
about
temperature later this year. The
lawsuit, originally filed by death· row
. prisoners Jim Chandler and William
Kelley, claims the heat inside the
death row unit at Union Correctio~
Institution is cruel and unusual
punishment, and could lead to mental
or physical illness or even death.
. Randall Berg, an attorney with the
Fla. Justice Institute that is
representing the prisoners, claims
temperatures in the unit are almost
always in excess of 90 degrees,
frequently in excess of 100 degrees,
and as high as 110 degrees at times.

29-----

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Caryl Killinski, an assistant attorney
general representing the state in the
case, claims it is a "borderline
mvolous lawsuit." Killinski claims
since 1992 there has not been a
single case of a prisoner suffering a
heat-related illness. Court documents
show 30' prisoners received heatrelated medical treatmerit at the unit
during the summer of 2000, and 18
more during the summer of 200 I.
Judge Nimmons recently toured the
unit and interviewed some of the 300
prisoners.
[Source: AP, 8/S/02]
FL - Second Judicial Circuit Court
Judge P. Kevin Davey-dismissed the
major part of a lawsuit filed by civil
, rights groups that claimed the state
isn't doing enough to help ex-felons
get their voting rights restored~ One
count of the suit remained after the
dismissal, that Davey instructed
attorneys for the state and civil rights
group to work out a settlement.
Florida is one of only eight states
that does not automatically restore
ex-felons
civil
rights.
Approximately 410,000 Floridians
are prevented from voting because of
felony . convictions, according to
some estimates. One-third are black,
claims the ACLU.
Davey
.specifically held· that the Fla. Dept.
of Corrections is not. violating state
law that requires it to help ex-felons
get their voting rights restored.
[Source: Tampa Tribune, 8/16/02]

ID - State official claim that
everything wrong in the. Idaho DOC
Correetional Industries division that
lead to the DOC director resigning
behind the scandal over a year ago
bas now been corrected. An internal
memo
outlined new
policies
implemented by the DOC to solve
the problems that had allowed some
prisoners to visit strip clubs, have
conjugal visits and steal furniture.

IL - During June Illinois Gov. Ryan
announced that prisons would be

Perspectives . - - - - - - - - - - - - - -

closed to help balance the state's, _ June wtire the lowest. in more than a
budget. In July Ryan was presented ' decade.
with eight new crime bills tlu\t would
add hundreds more prisoners to the
PA - The-U.S. Court of Appeals for
prison system and cost the state·more
the Third Circuit reinstated a class. than $SO million over the. next .ten
action federal lawsuit' filed toy
years.
prisoners at a federal prison in
Pennsylvania who claim that a 1996
IN - Three guards at the Indiana
federal law prohibiting the viewing
Women's Prison were arrested
of R, X and NC-17 rated movies by
during June for .coercing' female
prisoners is unconstitutional'. The
prisoners to have sex with them. If
law was adopted during the "get
convicted on the sexual misconduct
tough on prisoners" frenzy of the
charges each guard _will only face up . mid-1990's. The prisoners' attorney
to. three years in prison and up to a
;admits that X-rated movies can
$10,000 fine.
probably be banned, but that a
categorical ban on R and NC-17
IN - The practice of charging
rated movies bans movies such as
prisoners a $25 processing fee when
List,"
"Amistad."
"Shindler's
they are· booked into an Indiana
''Glory'' and ''The English. P"tient,"
county jail is being challenged in two
which is unconstitutional.
The
federal-lawsuits filed by three former
appeal court apparently agreed and
prisoners.
The lawsuits are
sent the case back to the District
challenging the practice in Clark and
Court for further consideration.
Bartholomew counties~ While many
counties use the booking fee to offset
UT - Citing state budget shortages,
prisoners' medical expenses, in Clark
Utah lawmakers "have Cut 9ut the
.County $10 of the fee is deposited
practice of .giving newly released
into a police pension fund.
state prisoners about $100 as release
money. Now, released prisoners will
MA - Massachusetts prison officials
no longer get any money when
have proposed new regulations
released
unless they can prove it is
designed to restrict media access to
sorely
needed.
prisoners.
The proposal would
prohibit cameras and tape recorders
VA :- In the wake of 911, several
at all medium and maximum-security
including Virginia, sUSJ>.eDded
states,
prisons and prolubit media access to
prison rCgulations requiring legal
all prisoners in confinement and
mail to -be . inspected only in the
deny confidential interviews between
presence of prisoners. . In Virginia,
prisoners' and the media at all state
after protest by the state ACLU, the
prisons. This move by the MA DOC
state reverted to the old policy of
follows moves by several other states
prisoners
having .to be present
in the last two· years, including
whenever
legal
mail is opened by
California, Michigan and Virginia, to
prison
officials,
during
MarCh 2002.
curb the media's access to prisoners.
In
Massachusetts,
New
Jersey,
Florida is currently in the process of
Vermont and Michigan, which also
trying to ~opt new regulations to
had adopted similar policy,. all have
is
considered
restrict
what
now retiuned to only opening legal
confidential written materials in mail
mail
in prisoners' presence when
sent from the media to prisoners.
legal actions were brought or
threatened by prisoners' attorneys.•
NE - Nebraska prison official claim
that th9 results of dmgtests
performed on state prisoners during

3P - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - flORIDA PRISON LEGAL Perspecbves

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pmm the iaua a SI.B am f'ar. siltlDOllb ....ijCuu.
New lind ausecl postqc stamps or eatbotsed CIM!cpcIm.y
be used IS Jt3)'IIIG1t.
•
For ~CCU%ed ~ die ,arty IUI=ripIimI
me is S2S. IftsUalriorW ClI' prc(essiaaaI (1ftCmtCYI. Iitnrles.
~ agalCies. ~) IUbscriptiou ntcI ,Ire .
S60. year. A umpJe eopJ of PLN is awiIab!e &It SI. To
sabscriIlc to PLN, CO!lbd:
PM1tr Ugtzl NfWS •
lJDD NW 80th Slmt
PMBI48

Wri.

So:atle. WA gsll7

See PINs website at
1rJIp:.·Iwww.prlstml~ctg

If so, please complete the below iDlormatioD add mall it to FPLP so

.

that the malDng list can be updated:

NEW ADDRESS (PLEASE PRINT CLEARLY)

Name

Address

City

Zip

State
[ilMaiI to: IlPLP. P.O. Bol 660-387, Chuluota. J!L 32766

EmanPLHat
wcblJfQJll1r@prim1rl,gaIntrta.org

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