The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume VI, Issue 1, March 2006

ACCESS

RICHARD E. GIROUX, ESQ.
27 YEARS OF SERVICE TO PRISONERS
After 27 years as an attorney with
NCPLS, Richard E. Giroux retired
at the end of February 2006. His
service will be long
remembered, both by
his clients and by his
colleagues.
Rich graduated from
law school at the
University of North
Carolina. In 1979, he
accepted a position
as a staff attorney
with North Carolina
Prisoner Legal Services, Inc. As a staff
attorney, he advised
prisoners of their
legal rights, interviewed applicants
for legal services, and when necessary, engaged in the negotiation,
trial, and appeal of legal issues
that affected the rights of indigent
prisoners.
In 1985, he entered an appearance
in the case of a prisoner who had
filed a federal lawsuit on his own.
The inmate alleged that a prison
doctor provided inadequate treatment for a torn Achilles tendon.
The federal district court had
already dismissed the case and the
prisoner had appealed when Rich
became involved. Rich briefed and
argued the case before a threejudge panel of the Fourth Circuit
Court of Appeals and won a partial
victory. West v. Atkins, 799 F.2d

923 (4th Cir. 1986). However,
the Department of Correction’s
lawyers successfully sought review

Richard E. Giroux
Senior Staff Attorney

of the panel’s decision by all of
the judges of the court of appeals,
sitting en banc. Rich briefed and
argued the case again, but this time
the en banc court vacated the panel
decision and affirmed the lower
court’s dismissal of the case. The
appellate court held that correction officials were not liable for
the actions of the prison doctor
because the doctor exercised “independent professional judgement.”
West v. Atkins, 815 F.2d 993 (4th
Cir. 1987) (en banc). Unwilling
to accept such a result, Rich petitioned the U.S. Supreme Court,
asking the Court to accept the case
for final review. Against extremely
long odds (the Supreme Court

grants only a very small percentage
of such petitions), the Court agreed
to hear the case.
To argue a case
before the U.S.
Supreme Court is
the dream of many
lawyers, and a pinnacle of any legal
career. But despite
Rich’s considerable
experience and skills,
his knowledge of the
case, his success in
securing review by
the Court, and his
own personal investment, Rich
concluded that his client’s interests would best be served if the
(Continued on Page 2)
In this Issue:
Richard E. Giroux, Esq.
27 Years of Service to Prisoners
Blakely, Booker, and the North Carolina
Sentencing and Policy Adviosry Commission

3

NCPLS Renews Contract With IDS

4

Advertisement - Prison Legal News

4

NCPLS Seeks Cert. in Holly v. Scott
NCPLS Board Member Instrumental in
Passage of ABA Resolution on Immigration

5

Postal Delivery of Access Discontinued

6

CA Prison Racial Segregation Case Settles
U.S. Sentencing Commission Releases Report

7
7

On the Accpetance of Responsibility
Corrections-Foothills Opens Security
Threat Group Unit
Campbell Law School’s Prisoner
Assistsance and Legal Services Program

8

1

6

10
11

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 36,000 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Directors
President, Fred Williams, Esq.
Jim Blackburn
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA

PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume VI, Issue 1, March 2006

RICHARD E. GIROUX
(CONTINUED)

(Continued from Page 1)

case were argued by an attorney
with experience in that forum.
Consequently, Adam Stein, an
accomplished and renowned appellate lawyer, was retained for that
purpose.
In preparing the case for argument
in the Supreme Court, Rich assisted
in drafting and revising
the brief. He provided tireless support to Mr. Stein concerning the
factual background of the case,
information about relevant
Supreme Court precedent, and
advice regarding strategy. Rich
also participated in a moot court
argument to help Mr. Stein prepare.
In all of these activities, Rich was
characteristically cooperative and
supportive, never loosing sight of
his client’s interests and objectives.
After briefing and oral argument,
the U.S. Supreme Court issued its
opinion. According to the Court,
prison officials could not shield
themselves from liability for deliberate indifference to the serious
medical needs of a prisoner through
the device of a contract with a “private” physician. In reversing the
lower courts, the Supreme Court
established the principle that prison
officials throughout the country are
responsible for meeting the basic
health needs of prisoners, irrespective of the methodology they
employ to meet those needs. West
v. Atkins, 487 U.S. 42 (1988). As
a result, hundreds of thousands of
prisoners have benefited. That case
also has had profound implications
with respect to the privatization of

prisons, an industry that has grown
dramatically in recent years.
In the aftermath of that remarkable
victory, Rich somehow managed to
re-direct accolades and attention to
others, preferring instead quietly to
continue his work for Mr. West in
the district court on remand.
The year following the West decision, practically the same issue was
resurrected when prison officials
argued that the alleged negligence
of a contract doctor was not attributable to the State for purposes of
a tort claim brought in the North
Carolina Industrial Commission.
The most significant difference in
this case was that State law, and
not federal law, controlled. (Thus,
West was not binding precedent on
North Carolina courts.)
It was again Rich who championed
the prisoner’s cause, but this time
he won in the trial court and had
the advantage of defending favorable decisions from the Industrial
Commission to the North Carolina
Court of Appeals, Medley v. The
North Carolina Department of
Correction, 393 S.E.2d 288 (N.C.
App. 1990), and from the Court
of Appeals to the North Carolina Supreme Court. In the State
Supreme Court, Rich argued that
prison officials should not be permitted to evade their responsibility
to provide for the medical needs
of prisoners through a contractual
device. Instead, he urged, cor(Continued on Page 11)

NCPLS ACCESS

Volume VI, Issue 1, March 2006

Page 3

BLAKELY, BOOKER, AND THE NORTH CAROLINA SENTENCING
AND POLICY ADVISORY COMMISSION:
A SCHOLARLY WORK BY NCPLS BOARD MEMBER RON WRIGHT
By Billy Sanders, CLAS
Commissioner, NC Sentencing & Policy Advisory Commission

In Blakely v. Washington, 124 S.Ct.
2531 (2004), and in United States
v. Booker, 125 S.Ct. 738 (2005),
the U.S. Supreme Court held that
juries rather than judges had to find
beyond a reasonable doubt any
facts that provided the basis for a
longer prison sentence after conviction. Previously, North Carolina and many other jurisdictions
allowed judges, acting alone, to
find aggravating factors which
could increase the length of the
sentence a convicted defendant
might receive. North Carolina had
to modify its sentencing procedures
to conform to the mandate of
Blakely and Booker.
NCPLS Board member, Ronald F.
Wright, recently penned an article
entitled “The Power of Bureaucracy in the Response to Blakely
and Booker.” Wright, a professor
of law at Wake Forrest University,
is recognized nationally as an
expert in federal sentencing and as
an advocate for sentencing reform.
In the article, Professor Wright
examines sentencing commissions
to predict the way in which such
entities are likely to react to the
changes in criminal justice procedures required by these landmark
cases. The article highlights how
the North Carolina Sentencing and
Policy Advisory Commission helps
North Carolina stay in the forefront
of sentencing reform nationally,
and how the Commission helped
North Carolina break the cycle of
ever-increasing criminal penalties that resulted from the “tough

Professor Ronald F. Wright

on crime” approach of the ‘70’s,
‘80’s, and ‘90’s. Wright observes
that, prior to the development of
such commissions, lawmakers were
often unduly influenced by prosecutors without regard to financial
concerns, or even at times, fairness.
As a member of the Commission,
it was my privilege to be part of
the process in North Carolina that
Professor Wright describes. The
Commission is comprised of
representatives from various sectors of the criminal justice system
- defense attorneys, prosecutors,
judges (at all levels), victim’s rights
groups, county commissioners,
sheriffs and police chiefs, as well
as legislative and gubernatorial
appointees. Working in partnership with an excellent and dedicated staff that provides incredibly
accurate data and analysis, the
Commission has earned credibility with the Legislature, which
ultimately considers and acts on
the Commission’s proposals. In
the context of legal requirements
imposed by Blakely and Booker,
the General Assembly adopted the
Commission’s recommendations,
almost in their entirety.

North Carolina is recognized as a
leader in sentencing reform, but
what might not be well known is
that NCPLS played a role in creating the initiative for the creation
of the Sentencing Commission. In
the 1990’s, NCPLS litigated a class
action law suit, Small v. Martin,
which challenged the conditions of
confinement in 48 prisons in North
Carolina, alleging that overcrowding created conditions of confinement that were unconstitutional.
As a result of this lawsuit, the
political leaders became alarmed
that the Small litigation might
result in a federal takeover of the
state prison system. Lawmakers
took several emergency measures
to forestall a federal takeover,
including the adoption of legislation that limited or “capped” the
prison population. As a long-term
measure, the Legislature created
the Sentencing and Policy Advisory
Commission to create a sentencing
policy that, among other things,
would help prevent the type of
overcrowding that led to the Small
litigation. While Small might not
have been the only motivation for
the creation of the Commission, it
is fair to say that the Commission
might never have come into being
without the impetus of Small.
[Editor’s note: “The Power of Bureaucracy in the Response to Blakely and
Booker” can be obtained for free:
www.ssrn.com/abstract=885513; or by
writing to Wake Forest University at P.O.
Box 7206, Rm 3336, Worrell Professional
Center, Winston-Salem, NC 27109 - WFU
Legal Studies Paper No. 885513.]

NCPLS ACCESS

Page 4

Volume VI, Issue 1, March 2006

NCPLS RENEWS CONTRACT WITH IDS
Legislation passed by the General
Assembly in the summer of 2005
transferred the authority to contract
for prisoner legal services from the
Department of Correction to the
Office of Indigent Defense Services
(IDS). Senate Bill 622, Session
Law 2005-0276, §14.9(b). Initial
negotiations between NCPLS and
IDS were concluded on September
29, 2005 when the parties executed
a five-month contract.
On February 24, 2006, NCPLS and
IDS agreed upon a renewal of the
contract which provides a term of
19 months and a continuation of
funding at the 2002 level. However, IDS also agreed to work
with NCPLS to seek additional

funding from the Legislature so
that resources will be adequate to
serve a prison population that has
increased by 12 per cent, while
business costs have increased by a
like amount.
Session Law 2005-0276 at §14.9(b)
also directed IDS to evaluate
NCPLS over a two-year period,
reporting on the evaluation process,
criteria, status and preliminary
findings by May 1, 2006, with a
final report due by May 1, 2007.
NCPLS and IDS have agreed to the
broad outlines of that evaluation
process. IDS, with assistance from
the School of Government at UNCChapel Hill (“SOG”) and a team

of legal experts to be designated
by IDS (“the evaluation team”),
will conduct an evaluation of the
NCPLS case-management process
and will review a random sample
of cases to be drawn from NCPLS’
files. The review will focus on
the appropriateness and quality of
NCPLS’ response in light of the
requirements of the contract, the
standards prescribed by the Rules
of Professional Conduct, NCPLS’
case acceptance priorities, and the
needs and interests of the prison
population.
The findings of the evaluation team
and the results of the audit will
be reported in future editions of
ACCESS.

- ADVERTISEMENT PRISON LEGAL NEWS
Prison Legal News (PLN) is an
independent, 48-page monthly
magazine that has published since
1990. It reports on all aspects of
the criminal justice system from all
fifty states and around the world.
It has the most extensive reporting
on detention facility litigation and
news of any publication. Contents
include columns by lawyers aimed
at assisting pro se prisoner litigants
with habeas corpus and civil rights
litigation. Regularly covered topics
include verdicts and settlements,
disciplinary hearings, medical
issues, excessive force, death row,
telephones, mail regulations, reli-

gious freedom, court access, habeas
corpus, misconduct and corruption
by prison and jail employees, state
and federal legislation, the Prison
Litigation Reform Act, conditions
of confinement and much, much
more.
PLN also distributes books dealing
with litigation, self help and the
criminal justice system. Each issue
of PLN contains ads from many
businesses and organizations providing services and products aimed
at the prisoner market. Subscriptions for prisoners are $18 per year
for prisoners (subscriptions can be

pro rated at $1.50 per issue - do not
send less than $9.00); $25.00 per
year for non-prisoners and $60 per
year for professionals and institutions. Sample copies are available
for $2.00.
Contact:
Prison Legal News, Dept. NC,
2400 NW 80th St, PMB 148
Seattle, WA 98117
www.prisonlegalnews.org
Tel: (206) 246-1022.
[Editor’s Note: Prison Legal News
is not affiliated with NCPLS or
ACCESS.]

NCPLS ACCESS

Volume VI, Issue 1, March 2006

Page 5

NCPLS SEEKS CERT. IN HOLLY V. SCOTT
J. Phillip Griffin, Senior Staff
Attorney and Civil Team Leader,
represented the prisoner-plaintiff in
Holly v. Scott. NCPLS was appointed several years ago to represent Mr. Holly, a federal inmate
at Rivers Correctional Institution. The
prisoner had
filed a Bivens
action against
the staff of a
federal contract
prison operated
by Wackenhut
(now known as
“Geo Group”).
[A Bivens action
is much like
an action filed
pursuant to 42
U.S.C. §1983
– it is a lawsuit
to vindicate a
federally protected right. The difference is that
a §1983 lawsuit can be filed only
against a person who acts “under
color of any statute, ordinance,
regulation, custom, or usage, of any
State or Territory,” but not against a
person who acts under the authority
of the Federal government. See,
Bivens v. Six Unknown Named
Agents of Federal Bureau of Nar-

';,'

~

~~

~§~ilt":'~~4'J~Ifi~l;f.~

IIJ

cotics, 403 U.S. 388 (1971). See
also, 42 U.S.C. §1983.]
In the district court the defendants
moved to dismiss, arguing that
private contractor employees are

Fourth Circuit Court of Appeals

not subject to Bivens liability. The
district court ruled in favor of the
plaintiff and the defendants took an
interlocutory appeal. The Fourth
Circuit Court of Appeals unanimously reversed the trial court, but
split 2-1 on the reasoning. The
majority opinion held that the
employees were not acting under

color of state law because operation of prisons is not a function
reserved to the government as prisons are often outsourced. Judge
Motz concurred in the result of
the majority, reasoning that Bivens
should not apply
because the
plaintiff had a
remedy in state
court through
a common law
negligence
action.
After careful
consideration
and consultation
with other prisoner advocacy
groups and civil
rights attorneys,
NCPLS has
decided to seek
review of the
decision through
a petition for writ of certiorari to
the United States Supreme Court.
Although the Supreme Court grants
certiorari in only a small fraction
of the cases in which review is
sought, it seems clear that private
prisons and their employees should
be held to the same legal standards
as their state and federal counterparts.

NCPLS ACCESS

Page 6

Volume VI, Issue 1, March 2006

NCPLS BOARD MEMBER INSTRUMENTAL
IN PASSAGE OF ABA RESOLUTION ON IMMIGRATION
By Lisa Chun, Esq.
NCPLS Staff Attorney

In February, the American Bar
Association’s Criminal Justice Section Immigration Committee put
forward a three-part Resolution that
addresses some of the problems
regarding how a non-citizen can
obtain relief from deportation or
removal proceedings as a result of
a criminal conviction. In 2002,
NCPLS Board member, Ron
Wright, (a professor of law at Wake
Forest University) co-authored an
article with Margaret H. Taylor
titled “The Sentencing Judge as
Immigration Judge,” 51 Emory L.J.
1131 (2002). The chair of the ABA
Immigration Committee was familiar with that article and contacted
Professor Wright to ask that he
draft the proposed resolution.
The first part of the ABA Resolution urges Congress to restore
authority to state and federal sentencing judges to find that deportation or removal of a non-citizen is
unwarranted in a particular case.
Alternatively, such authority should
be vested in an administrative

court or agency. [Under former
law, state and federal judges could
issue a “judicial recommendation
against deportation” which was
binding on immigration authorities
that deportation was not warranted
on the facts of the case. With the
repeal of this judicial authority in
1990, case-specific relief to those
facing removal based upon conviction is almost non-existent. Many
injustices have resulted, both for
individuals and for their families.]
Under existing law, an “aggravated felony” provides the basis
for mandatory deportation. The
second part of the Resolution states
that federal immigration authorities
should not interpret immigration
laws so expansively as to include
low-level offenses (misdemeanors
under either state or federal law),
or state dispositions other than
conviction, to constitute an “aggravated felony.”
The third part of the Resolution
urges states, territories, and the
federal government to expand the

use of the pardon power to provide
relief to non-citizens who would
otherwise be subject to deportation or removal on grounds related
to conviction, where the circumstances of the particular case warrant it. In particular, the resolution
encourages the establishment of
standards governing pardon applications to avert removal, specify
the procedures an individual must
follow to apply, ensure that these
procedures are reasonably accessible to all persons, and ensure
that the applications are processed
expeditiously. The Resolution
urges reinvigorated use of “full and
unconditional” pardons that satisfy
the requirements of federal immigration law in light of the limited
relief from removal otherwise
available to non-citizens under
immigration law.
The Resolution was adopted on
voice vote by the American Bar
Association’s House of Delegates
in February 2006 and is now official policy of the ABA.

POSTAL DELIVERY OF ACCESS DISCONTINUED
As we reported in the last edition of ACCESS, NCPLS no longer
delivers our newsletter by mail
except to subscribers and people
who are incarcerated. Prisonersubscribers will continue to
receive the newsletter through
the mail at no cost. Other people
who are incarcerated may subscribe
simply by sending us a request

to receive future editions (which
will be provided at no cost). We
are also happy to deliver ACCESS
free of charge by electronic delivery. Finally, by paying a modest
subscription fee to offset postage
costs, we will be happy to send the
newsletter by mail.
To register for electronic delivery,

please address an e-mail message
to rfolwell@ncpls.org. Write “subscribe” in the subject-line. Nothing more is required. To subscribe
for a year’s subscription by mail,
forward a check in the amount of
$8.00 made payable to NCPLS.
(Donations in excess of the $8.00
fee will be gratefully received and
are tax-deductible.)

Volume VI, Issue 1, March 2006

NCPLS ACCESS

Page 7

CA PRISON RACIAL SEGREGATION CASE SETTLES
Last year, the U.S. Supreme Court
held that a prison policy based
entirely on race is
subject to rigorous review by the
courts. Johnson v.
California, ___
U.S.___, 2005 WL
415281 (23 February 2005). The
Court explained:
“The right not to
be discriminated
against based on
one’s race is . . .
a right that need
[not] necessarily be
compromised for
the sake of proper
prison administration. On the contrary, compliance
with the Fourteenth Amendment’s
ban on racial discrimination is not
only consistent with proper prison
administration, but also bolsters the
legitimacy of the entire criminal
justice system.” The Court concluded that such policies must be
examined under “strict scrutiny”
to “guard against invidious [racial]
discrimination.” On remand to the
trial court, prison officials were
required to “demonstrate that race-

based policies are ‘necessary to
further a compelling governmental

the decision of the Supreme Court
last February, that practice was
viewed as legally
suspect. Indeed, no
other correctional
system in the country had a similar
policy.

Under the December 2005 settlement
agreement, the
CDCR has started
to implement a new
policy: race will
be only one of
several factors to
be considered in
classifying prisonUnited States Supreme Court
ers. Other factors
include known gang affiliations
interest,’ and that the policies are
and the prisoner’s criminal history
‘narrowly tailored to that end.’”
and proclivity for violence. Prison
officials have continuing concerns
When the case was returned to the
about violence between gangs that
district court, the parties agreed to a form along racial lines – like the
settlement. The California Depart- White Supremacists or the Meximent of Corrections and Rehabilican Mafia. However, during the
tation (CDCR) had a long-standing two-year transition period, officials
policy to segregate inmates by race believe they can create a culture
during the first 60 days following
where racism is no longer toleradmission or transfer. Following
ated and prisoners will be safe from
race-based violence.

U.S. SENTENCING COMMISSION RELEASES REPORT
Earlier this month, the U.S. Sentencing Commission released a
long-awaited study, “Report on the
Impact of United States v. Booker
on Federal Sentencing.” The
277-page report contains considerable detail about the way the
federal courts have applied Booker
in imposing sentences upon con-

victed criminal defendants. The
report’s main finding seems to be
that average sentence-lengths have
increased since Booker.
The report is timely, as the U.S.
House of Representatives began
hearings in mid-March to examine the impact of Booker, and to

consider whether legislative action
is needed. The report is accessible
at www.ussc.gov/booker_report/
Booker_Report.pdf . Contact information follows: Office of Public
Affairs, U.S. Sentencing Commission, One Columbus Circle, N.E.,
Washington, DC, 20002-8002.
Telephone (202) 502-4500.

NCPLS ACCESS

Page 8

Volume VI, Issue 1, March 2006

ON THE ACCEPTANCE OF RESPONSIBILITY
By Michael G. Santos

Editor’s Note: The following article, “On
the Acceptance of Responsibility,” follows
a series of articles republished in ACCESS
by permission of the author, Inmate
Michael G. Santos. Mr. Santos was convicted of drug distribution and sentenced
to serve 45 years in Federal prison. He is
scheduled for release in 2013. While in
prison he has earned Bachelors and Masters Degrees. He has also written three
books available for review and purchase
on his web site: www.MichaelSantos.net.
Although he does not have direct access to
the internet, he can be reached by email at:
info@michaelsantos.net. Mr. Santos can
also be reached at the following address:
Michael G. Santos (Reg. No. 16377-004),
USP Lompoc, Satellite Camp, 3705 W.
Farm Road, Lompoc, CA 93436.

_______________

It pleases me that hundreds of thousands of people from across the
world visit MichaelSantos.net and
express support for the efforts I
make to reconcile with society. I
am grateful and will continue
working to prove myself worthy of
this advocation. Some citizens,
however, oppose my efforts to connect with the world. They prefer
that I “rot in prison” or assert that I
should “be a man and accept my
punishment.” The preparations I
make to lead a law abiding life
upon release offends them. It is to
these opponents of forgiveness or
redemption that I write this
response.
First of all, I must say that I welcome any opportunity to interact
with those who assail my character
and intentions. I consider it both
a privilege and a possibility when
people from society feel strongly
enough to share their convictions
with me. In fact, I write the content for MichaelSantos.net with the

commitment to living a transparent life, an open book. I invite all
citizens of the world to consider
and judge both the criminally bad
decisions I made in the mid-1980s,
when I was in my early twenties,
as well as the response I have made
during the eighteen-plus years I
have served so far.
As an aside, I urge my readers to
note that I never say or write that it
was my mistakes that brought me
to prison. There was no mistake. I
knew exactly what I was doing. I
was a young man driven by greed
and inappropriate values; I made
decisions with the lack of a strong
moral compass. I did not understand or consider all of the ramifications of my actions, but I knew
what I was doing. I was wrong
to have engaged in the trafficking
of cocaine and there is no one to
blame but myself for the consequences of my actions.
As I read the anger of those who
so diametrically oppose any steps
I take to atone, the better I am
able to prepare for the vengeance
and cynicism that I expect to meet
upon my release. Readers should
note that I expect to serve my full
sentence in accordance with the
law. According to the way the
law exists today, that means I will
serve just over a quarter century
of my life in prison. The choices I
have made since prison boundaries
swallowed me inside strengthen
me. They prepare me spiritually,
physically, emotionally, and intellectually to endure these sevenplus years of confinement that
await me.

I freely acknowledge the unlikelihood that I will receive any type
of relief from my sentence. That
does not imply that I agree with
those who call for me to endure
the time silently. I am convinced
that sentences of multiple decades
for offenders with no personal
history of violence makes for bad
public policy. Similarly, a criminal
justice system that fails to provide
a mechanism for individuals to
earn freedom through merit, I am
certain, contributes to high recidivism rates and weakens rather than
strengthens our nation’s body of
laws. As a citizen of this republic,
then, it is my duty to express ideas
and contribute to this ongoing
debate of justice. Naturally, I do so
with the understanding that readers
will consider my station in life as
they weigh the persuasiveness of
my arguments.
In challenging these contributions
I make to help others understand
America’s prison system, some
writers insist upon my bearing partial responsibility for the ongoing
violence associated with illicit drug
use. I wonder what that means.
Although I wish that I could undo
the bad decisions I made in my
early twenties, I cannot.
When I was twenty-one I orchestrated a scheme to distribute
cocaine to consenting adults.
Those crimes continued until I
was twenty-three, at which time I
was incarcerated for those actions.
There were no weapons, threats,
intimidations, or violence of which
I had knowledge or involvement.
Yet now that I have advanced into
(Continued on Page 9)

Volume VI, Issue 1, March 2006

NCPLS ACCESS

Page 9

ON THE ACCEPTANCE OF RESPONSIBILITY
(Continued from Page 8)

my early forties, I recognize that a
considerable amount of ancillary
violence is associated with drug
trafficking. In my early twenties I
did not have the intellectual maturity to connect-the-dots in contemplation of everything happening
before or after the transactions in
which I inappropriately participated.
Among the questions I have for
those who insist that I was “a
willing participant in a murderous commercial enterprise that is
directly responsible for the deaths
of thousands each year” is whether
that condemning and unforgiving
theory of liability is universally
applicable? If it is, wouldn’t that
imply that the shareholders of
tobacco companies should bear
partial responsibility for their participation and profit from a murderous commercial enterprise that is
directly responsible for the deaths
of [hundreds of] thousands each
year? How about the steel worker
who builds the machines producing
firearms that fuel ongoing violence
in society? According to the theories of responsibility my detractors use against me, wouldn’t such
people live as a part of the chain of
events that damage society?
Perhaps such theorists cling to the
fact that although tobacco and guns
kill millions of people, those commercial ventures are legal. Cocaine
trafficking is not. I agree. Does
the legality of the enterprise influence the responsibility that millions of people should bear when
they participate in ventures without
thinking about ancillary conse-

(CONTINUED)

quences of their participation? And
does the legal status of a commercial enterprise have a bearing on
whether it is right or wrong?
Slavery was once legal as a commercial enterprise in this country.
Was that right when it was legal?
Did it become wrong only when it
became illegal? The consumption
of alcohol was once illegal in this
country. Yet millions of people
willingly broke those prohibition
laws. Violence exploded as gangsters fought to supply an insatiable
demand. Was the individual who
purchased a few cases of rum
that he could sell to customers in
his speakeasy “responsible” for
the murderous behavior of others
whom he did not know or have
knowledge of in the supply chain?
Is the receptionist at Seagram’s
partially responsible for the drunk
driver who crashes his automobile
into a school yard? How far does
responsibility go? How much
should we pay for bad decisions we
make that have ancillary ramifications?
My actions prior to prison certainly did not contribute much
positively to the world. Since my
term began, however, my record
reflects a continuous effort to atone
for the bad decisions that led to my
confinement. That is my way of
accepting responsibility, my way
of accepting punishment as a man.
No one has ever heard me whine
or complain about the quarter
century of confinement that I must
serve. Yet that does not mean I
think such a sentence is right or
just. I continuously ask whether

there is anything that an offender
without a history of violence can
do to earn freedom. I do not mean
by squealing on others to save
oneself. I ask whether a nonviolent
offender can reconcile with society through a sustained period of
continuous effort. If the answer is
no, then how can we call ourselves
a compassionate, Judeo-Christian
society? Such an implication would
value the virtues of forgiveness
and atonement. To deny a path to
redemption implies a society of
vengeance, which seems inconsistent with the evolving, enlightened
way in which Americans like to
think of themselves.
On the other hand, if there is an
objective way in which a nonviolent offender can reconcile with
society, can anyone define it?
During the eighteen-plus years that
I have served so far, I have worked
to build such a record. Through
the help of others I have become
an educated man with credentials
from accredited universities. I
have a long record of mentoring
others, both inside and outside of
prison boundaries. I work fulltime jobs in the prisons where I am
held. I discipline myself by obeying prison rules. I acknowledge the
bad decisions of my early twenties and work to help others make
better decisions. Yet in our absurd
so-called system of corrections, the
steps I have taken qualify for nothing. They do not entitle me to a
lower bunk, much less to any relief
from my sentence. That is why so
few in prison follow the example
that I try to set.

(Continued on Page 10)

NCPLS ACCESS

Page 10

Volume VI, Issue 1, March 2006

CORRECTIONS –
FOOTHILLS OPENS SECURITY THREAT GROUP UNIT

In the December 2005 issue of
ACCESS (Volume V, Issue 4), pages
4–6, we reported on the new
Security Threat Group (STG) Unit
that recently opened at Foothills
Correctional Institution. We were
subsequently contacted by Robert
C. Lewis, Assistant Director of
Support Services, who advised that
some of the information contained
in the article was inaccurate.

Specifically, our description of
the process by which a prisoner is
selected for assignment to the STG
Unit was not accurate. The process
is as follows. The prisoner must
first be “validated,” or identified as
a member of a gang. If the facility
intelligence officer determines that
the validated inmate meets the
criteria for placement into the STG
program, a recommendation is
forwarded to the superintendent.

If the superintendent agrees, the
recommendation is forwarded for
review by the Regional Director.
When the Regional Director
approves the recommendation, it
is forwarded to the Chief of Security for review and approval. If
approved, the prisoner is notified
and is transferred to Foothills,
where the Classification Review
Committee assesses the prisoner
for inclusion in the program, again,
based upon certain undisclosed criteria. No matter what the Classification Review Committee decides,
that decision may be appealed.
[Our article incorrectly placed the
right of appeal prior to a transfer to
Foothills.]
We also incorrectly reported that a
prisoner who successfully completes the program is returned to
general population and loses his
“gang member” validation status.

In fact, removal of the gang member validation is not automatic.
However, after successful completion of the program, inmates may
continue to work towards removal
of their STG status through the
post-monitoring program. The
post-monitoring program could
continue for a period of six months
to one year. The duration of the
post-monitoring period depends
upon the prisoner’s progress and
upon maintaining a record of good
conduct. Successful completion
of the post-monitoring program
may result in the removal of gang
member validation status.
We constantly strive to provide
complete and accurate information
through this publication. We regret
these two inaccuracies and extend
our appreciation to Mr. Lewis for
bringing them to our attention.

ON THE ACCEPTANCE OF RESPONSIBILITY
(Continued from Page 9)

I can understand why correctional
administrators erect barriers that
discourage people from preparing
for law-abiding lives. Their jobs,
their promotions, their overtime
pay depends upon high recidivism
rates. The more people who fail
upon release and return to prison,
the more need for higher prison
budgets. What I do not understand
is why any taxpaying citizen who
is not beholden to the correctional
complex would oppose these
efforts I make to reconcile with

(CONTINUED)

society and prepare for a law-abiding life upon my release.
I welcome these opportunities to
learn through a constructive debate
from those who oppose me.
Until next time, I wish you all well.
Editor’s Note: It is sound – and
just – to suggest that our shared
beliefs in the inherent value of
all human beings (as well as the
objects of our criminal justice
system) would be better served

by encouraging the rehabilitation
of prisoners. It is not sound – or
just – to suggest that all correctional professionals are motivated
by a desire to further what the
author sees as their occupational
self-interest. Prisoners are often
unjustly vilified with similarly
flawed reasoning. All concerned
in the criminal justice system have
a stake in removing barriers to
rational dialogue on the subject of
rehabilitation, including the author.

Volume VI, Issue 1, March 2006

(Continued from Page 2)

rectional officials should be held
responsible for the negligent medical practices of physicians who act
as agents of the state in providing
medical care to prisoners. That
argument prevailed. Medley v.
The North Carolina Department of
Correction, 412 S.E.2d 654 (N.C.
Supreme Court 1992).
After more than seven years of
litigation, Rich succeeded in firmly
establishing the principle that the
provision of medical care for prisoners is a non-delegable duty, for
which responsibility lies in correctional officials. It would be hard to
overstate the favorable impact that
principle has had on the lives of

NCPLS ACCESS

Page 11

RICHARD E. GIROUX
(CONTINUED)
North Carolina inmates, as well as
prisoners across the nation.
West and Medley are only two of
literally hundreds of cases Rich
handled during his tenure at
NCPLS. Anecdotes of the many
services Rich has provided his clients, his experiences in the courts,
and the care and compassion he
brought to his work, are legion.
Perhaps one of the most telling
involves a gift presented to Rich by
one of his clients. After representing a prisoner in an unsuccessful
effort to obtain compensation for
an injury the inmate sustained on a
prison work assignment, Rich’s
client presented him with a beautiful scale model of a sailing ship,

accurate in every respect. The
object evidenced incredible detail
and uncommon craftsmanship.
The wonder that it could have been
created in prison and bestowed as
a gift was only equaled by a fact
that became apparent upon closer
inspection. The entire ship had
been constructed of wooden coffee
stirrers!
Rich’s commitment to his clients
and the broader principles of social
justice is an inspiration to all of
Rich’s colleagues. With appreciation for his 27 years of service to
prisoners, we wish Rich happiness
and continuing success.

CAMPBELL LAW SCHOOL’S
PRISONER ASSISTANCE AND LEGAL SERVICES PROGRAM
For several years, students of the
Campbell Law School have provided limited services to North
Carolina prisoners through the
Project for Older Prisoners (POPS).
The project addresses the special
problems of these prisoners, as well
as the concerns that the “graying”
of America’s prisons pose for the
nation in the future, through legislative reform measures and advocating parole for qualified older
prisoners.
Campbell law students are developing a second initiative that will
expand the services they provide to
inmates – the Prisoner Assistance

and Legal Services (PALS) Program. The mission of PALS will
be twofold. First, the students will
continue to provide services to
older prisoners through the POPS
program. Second, the PALS program will provide opportunities for
students to gain legal skills through
providing legal and non-legal
assistance to prisoners incarcerated
in North Carolina. Law students
will assist attorneys at NCPLS by
providing legal research and legal
assistance under the direction and
supervision of our attorneys. The
project coordinator at NCPLS will
be Staff Attorney Erica Greenberg.
Campbell law student Natalia

Isenberg will serve as the President of the student organization,
Michelle McEntire will serve as
PALS’s Vice President, and firstyear student Jeff Gillette, will serve
as liaison to NCPLS.
The rules of conduct that govern
the legal profession provide a
reminder that every lawyer has a
duty to engage in public interest
legal service, especially with regard
to the disadvantaged. North Carolina Revised Rules of Professional
Conduct, Preamble, Section 0.1,
¶ 6 (1997). It seems that students
at Campbell Law School take that
responsibility seriously.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org