The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume IV, Issue 3, September 2004

ACCESS

Motion For Appropriate Relief (MAR)
Results in 17-Year
Sentence Reduction
In State v. Harrison, our client was
convicted of first degree burglary
(Class D) and two
counts of second degree
kidnapping (Class E).
The court found that he
used a firearm in each of
these crimes and added
60 months to each of
the three consecutive
sentences. Although the
court imposed mitigated
sentences, our client
faced a total sentence of
280-327 months.
Fortunately, Harrison’s
case was pending on
appeal when the decision in State v. Lucas, 353 N.C.
568 (2001), was announced. Lucas
held unconstitutional a sentencing
enhancement for use of a firearm
where the indictment did not set
forth use of a firearm as an element
of the crime. The Lucas court further held that this new rule would
apply to all cases not yet final.

hearing, the client presented evidence of his rehabilitation during

his five years of incarceration. He
testified that he had completed the
DART program, obtained his GED,
and had enrolled in community
college courses. His parents both
testified to the positive changes in
his character since his conviction.
The district attorney opposed leniency and presented testimony from
the crime victim that she was afraid
Our client’s case was not yet final,
of the defendant and dreaded his
so NCPLS filed a motion for appro- release from prison.
priate relief asking that the firearm
enhancement of the sentences be
The court decided to suspend the
arrested and that the client receive
two sentences for the kidnapa new sentencing hearing. The
ping convictions, and imposed a
court granted the motion. At the
single active sentence of 70-94

months for the burglary, removing
more than seventeen years from
his original sentence.
Consequently, our
client expects to be
released, not in 2022,
but in March of 2005.
So pleased were our
clients’ parents that his
mom hugged our attorney around the neck.
Congratulations to our
client and Senior Attorney J. Phillip Griffin
for good work and an
outstanding outcome!

Inside Issue:
Motion For Approprite Relief (MAR)
Results in 17-Year Sentence Reduction

1

NCPLS Welcomes New Board Members

2

New DOC Attorney Visitation Regs to
Take Effect October 1, 2004

3

IMPACT Update: Credit For IMPACT a
Continuing Problem in Probation
Revocations

4

DNA Database Testing - A Brief Summary 5
Sentencing Law Rumors

6

Kaposi’s Sarcoma - An Inmate’s Guide

7

Think Differently From The Herd

10

Excessive Force: An Incident of
Incarceration?

11

NCPLS Intern & Volunteer Program:
Law Students in Public Service

13

Client Contributions Sought

13

Tips on Corresponding With NCPLS

14

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 33,500 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
Representative Alice L. Bordsen
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Grady Jessup
Gary Presnell, Esq.
Professor Michelle Robertson
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 IV, Issue 3, September 2004

NCPLS Welcomes
New Board Members
NCPLS is governed by a 14member Board of Directors. The
dean of the law schools at UNC,
Wake Forest, Duke and Campbell,
each designates a director to the
Board. Other Board members are
designated by the North Carolina
Bar Association, the North Carolina Civil Liberties Union, the
Southern Prisoners’ Defense Committee, the North Carolina Association of Black Attorneys, and
the North Carolina Association of
Women Attorneys. The remaining
members are elected by the Board
to include a member of the General
Assembly, a former judge, two
former inmates, and others.
Dean Ronald Steven Douglas is
newly designated to the
NCPLS Board
of Directors by
North Carolina Central
University
Law School.
Dean DougDean Ronald
las earned his
Steven Douglas
law degree
from Central
and thereafter accepted the position of Legal Advisor to the OSHA
Review Board for the State of
North Carolina. Attorney Douglas
was in private practice for many
years in the Washington, D.C. area
concentrating in criminal defense
before returning to North Carolina,
where he presently serves as Assis-

tant Dean for the Day Program at
NCCU Law School. In that capacity, Dean Douglas is responsible for
admissions, scholarships, grants,
financial aid, and disciplinary matters.
Representative Alice L. Bordsen
also recently
joined the
NCPLS Board
of Directors.
Ms. Bordsen is
a member of the
North Carolina
House of Representatives
Representative
who serves
Alice L. Bordsen
the people
of Alamance
County. Ms. Bordsen’s service on
the House education and judiciary
committees reflects her interest in
education and social justice issues
and her experience as a lawyer.
Representative Bordsen is a 1981
graduate of the law school at the
University of North Carolina, and a
member of the North Carolina Bar
Association, the North Carolina
Association of Trial Lawyers, and
the North Carolina Association of
Women Attorneys, among others.
NCPLS is fortunate to have the
involvement of these accomplished
individuals, and grateful for the
leadership and guidance provided
by all of the folks who volunteer as
members of the Board of Directors.

Volume IV, Issue 3, September 2004

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Page 3

New DOC Attorney Visitation Regs
to Take Effect October 1, 2004
In June, the Department of Correction promulgated new regulations
governing visitation. The new
rules govern all aspects of inmate
visits, including meetings with
attorneys. Under these regulations,
before being allowed to see an
inmate, attorneys must disclose
that the inmate has designated that
attorney to “represent him/her in a
matter now pending or which may
be pending before a court of law.”
State of North Carolina Department
of Correction (DOC), Division
of Prisons Policy & Procedures,
Chapter D, §.0202(a). The regulation further provides that “[t]he
attorney or paralegal assistant is to
be admitted to discuss pending
legal proceedings only. . . . Solicitation attempts will not be tolerated.” In other words, the attorney
must specifically disclose that there
is a client-attorney relationship and
that the meeting concerns representation of the client in ongoing or
prospective litigation. Attorneys
who do not represent the inmate
(but who may wish to obtain information relevant to a client’s legal
claim) must follow “special procedures.” Id., §.0202(c). Following
the “special procedures” process
will delay the time of the meeting.

clients is accomplished by mail.
But there are matters that can be
addressed only in-person, so clientattorney meetings are sometimes
necessary. In some of those cases,
our clients will not want us to say
whether we represent them in
litigation. In other cases, we may
ask to meet with an inmate who we
expect to appear as a witness. In
still other cases, an inmateattorney meeting may be arranged
for the purpose of sharing information regarding matters that don’t
involve litigation.

The new regulations, which are
being “field-tested” at six prisons,
are scheduled for statewide implementation on October 1, 2004.
NCPLS is concerned that compliance with these regulations may
sometimes require our advocates to
disclose confidential information.

NCPLS attorneys, paralegals, and
interns have routinely met with
inmate clients in the correctional
setting. In the past, these meetings
have been arranged by giving correctional officials 24-hour advance
notice (sometimes by telephone,
and more recently, by fax) that an
NCPLS representative wishes to
meet with a particular inmate. The
nature of the relationship between
the NCPLS representative and the
inmate has not been disclosed.
Prison officials have known that a
meeting would occur but not
whether the inmate was a client,
was providing information as a witness, or was being spoken with for
some other purpose. Thus, while
the fact of the meeting cannot be
kept confidential, the purpose of it
can and has been kept confidential.
Over its twenty-five year history,
no formal complaint has ever been
lodged with NCPLS concerning
any of these inmate-attorney meetings.

Most of the communication
between NCPLS advocates and our

In any case, the new DOC regulation seems to improperly intrude

into the client-attorney relationship
and to require the disclosure of
confidential information. For this
reason, NCPLS recently asked the
North Carolina State Bar to provide an opinion as to whether the
duty to maintain client confidences
under Revised Rule 1.6 prohibits
the disclosures required by the new
DOC regulations. The State Bar is
the agency responsible for regulating the practice of law in North
Carolina.
NCPLS asked the State Bar to provide guidance with respect to the
following specific questions:
Question 1. Where a client is in
custody of correctional officials
and disclosure of the fact that legal
counsel has been sought will sometimes be embarrassing or harmful
to the client, does Revised Rule
1.6 and the duty to maintain client
confidences prohibit NCPLS lawyers from disclosing the nature of
the relationship in order to obtain
access to the clients for purposes of
meeting with them?
Question 2. If NCPLS lawyers
believe that such disclosure is
likely to be embarrassing or harmful to the client, does Revised Rule
1.6 and the duty to maintain client
confidences prohibit NCPLS lawyers from disclosing the nature of
the relationship in order to obtain
access to the clients for purposes of
meeting with them?
Question 3. Where a meeting
between an inmate-client and
an attorney is conditioned upon
(Continued on Page 4)

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NCPLS ACCESS

Volume IV, Issue 3, September 2004

Visitation Regs
(Continued)
(Continued from Page 3)

the attorney’s disclosure to the
inmate’s custodians of the nature
of the client-attorney relationship,
are these circumstances so coercive as to render meaningless the
inmate-client’s “consent” to such
disclosure?
Revised Rule 1.6 provides in relevant part:
(a) “Confidential information”
refers to information . . . gained in
the professional relationship that
the client has requested be held
inviolate or the disclosure of which
would be embarrassing or would
be likely to be detrimental to the
client. . . .

(c) Except when permitted under
paragraph (d), a lawyer shall not
knowingly:
(1) reveal confidential information of a client; [or]
(2) use confidential information
of a client to the disadvantage of
the client . . ..

(2) confidential information with
the consent of the client or clients
affected, but only after consultation
with them; [and]
(3) confidential information
when permitted under the Rules of
Professional Conduct or required
by law or court order . . ..

(d) A lawyer may reveal:

Revised Rule of Professional Conduct 1.6 (in part).

(1) confidential information, the
disclosure of which is impliedly
authorized by the client as necessary to carry out the goals of the
representation;

In response to these inquiries,
the North Carolina State Bar is
expected to issue a formal ethics
opinion in October 2004.

IMPACT Update:

Credit For IMPACT a Continuing Problem in Probation Revocations
By Susan H. Pollitt, Senior Attorney

In August 2002, the North Carolina
Supreme Court ruled that active
sentence terms must be reduced
by the time a defendant spent in
IMPACT (Intensive Motivational
Program of Alternative Correctional Treatment). State v.
Hearst, 356 N.C. 132, 567 S.E.2d
124 (N.C. 2002). Unfortunately,
some prisoners still are not
receiving their IMPACT credit
when their probation is revoked.
Since our September 2003 update
on IMPACT, NCPLS paralegals
have helped 37 prisoners get their
IMPACT credit. A total of 3,385
days have been applied to reduce
their active sentences.

When prisoners write us for help in
getting credit for the days they
spent in IMPACT, we often find
that they are also entitled to additional credit for time spent in jail
or in the DART program. For
example, over the past year, we
helped 15 people get 1,454 days of
DART credit.

No prisoner should have to serve
a sentence longer than required by
law. However, only a judge can
order sentence reduction credits.
When NCPLS receives a request
for help with IMPACT credit, our
legal staff quickly investigates
to determine whether there is a
meritorious claim to the credit.
When there is, NCPLS contacts the
Superior Court seeking an Order.
But, we can offer that help only to
people who contact us in time. If
you went to IMPACT and do not
think you received all the credit
you are entitled to, write and let us
know. We may be able to help.

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Page 5

DNA Database Testing – A Brief Summary
By NCPLS Staff Attorney Ken Butler

Deoxyribonucleic acid (DNA) is
the hereditary material found in the
cells of living organisms. Each
individual carries the same DNA in
every cell of their body and every
person has a unique DNA, with the
exception of identical twins. See,
Nicholas v. Goord, 2004 U.S. Dist.
Lexis 11708 (SDNY 2004). The
unique nature of DNA, like fingerprint analysis before it, has made it
an important part in criminal investigation. It has led to the establishment of a DNA database and
to state and federal legislation that
makes DNA testing mandatory for
offenders convicted of certain
crimes.
Since 1994, North Carolina has
performed DNA testing and contributed to the DNA database.
Under the original DNA Database
and Databank Act of 1993, persons
convicted of 22 listed crimes were
subject to having a DNA sample
obtained, either when they enter
prison, when they are released, or
as a condition of probation. N.C.
Gen. Stat. §15A-266.4 (2000). The
offenses originally listed included
both first and second degrees of
murder, rape, and sexual offense,
armed and common law robbery,
certain types of assaults, malicious
maiming, and indecent liberties
with children. In 2003, the N.C.
General Assembly expanded the
coverage of the DNA Database Act
to include those persons convicted
of any felony, as well as the misdemeanor offenses of assaults on
handicapped persons and stalking.
Since such legislation was enacted,
inmates throughout the country

have challenged the laws on various constitutional grounds. Typically, the challenges are based on
claims that these statutes constitute
an unreasonable search under the
Fourth Amendment, or that they
violate the constitutional prohibition against ex post facto laws.
Every appellate court, with one
exception, has upheld DNA testing statutes against both Fourth
Amendment and ex post facto challenges. See State of Maryland v.
Raines, 2004 Md. Lexis 504 (Md.
App., Aug. 26, 2004) (collecting a
nation-wide review of cases).

well as the prohibition against ex
post facto laws. The Jones court
ultimately held that “the state
interest in combating and deterring felony recidivism justified the
involuntary taking of blood samples and the creation of the DNA
data bank, considering appellants’
questionable claim of privacy to
protect their identification and the
minimal intrusion resulting from
taking a small sample of blood; and
the requirement that all incarcerated felons provide a blood sample
prior to release did not constitute a
retroactive increase in the sentence
of any inmate in violation of the Ex
Post Facto Clause.” Essentially,
the court held that the usefulness
of a DNA databank outweighs the
minor intrusion involved in the
collection of the DNA, and that
the creation of such a databank did
not violate the Fourth Amendment.
Jones, 962 F.3d at 308. The court
also noted that inmates who did not
comply with the blood testing regulations could be properly subjected
to prison disciplinary punishment.
Id. at 309.

In Jones v. Murray, 962 F.2d 302
(4th Cir.), cert. denied, 506 U.S.
977, 121 L.Ed.2d 378, 113 S. Ct.
472, 1992 U.S. LEXIS 7119, 61
U.S.L.W. 3355 (1992), the U.S.
Court of Appeals for the Fourth
Circuit addressed a case brought by
several Virginia inmates to that
state’s policy of obtaining DNA
samples from convicted felons.
The inmates argued that this violated their right to be free from
unreasonable search and seizure, as
protected by the Fourth Amendment to the U.S. Constitution, as

Many inmates have written to
NCPLS asserting that North Carolina’s DNA Database Act should be
held unconstitutional. In support
of that argument is a Ninth Circuit
Court of Appeals decision that
struck down a similar statute.
United States v. Kincade, 345 F.3d
1095, 2003 U.S. App. LEXIS
20123 (9th Cir. Cal., 2003). In that
decision, a federal parolee challenged the requirement that he
submit to DNA testing under a
federal statute, the DNA Analysis
(Continued on Page 6)

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Volume IV, Issue 3, September 2004

DNA Database Testing (Continued)

(Continued from Page 5)

Backlog Elimination Act of 2000,
42 U.S.C.S. §14135a. A threejudge panel of the Ninth Circuit
Court held that such DNA testing
was a search under the Fourth
Amendment and that “reasonable
suspicion” must exist before the
government could compel the
parolee to submit to DNA testing against his will. However, the
en banc Court of Appeals for the
Ninth Circuit recently reversed the
panel decision. United States v.
Kincade, 2004 U.S. App. LEXIS
17191 (9th Cir. Cal. Aug. 18,
2004). The en banc court held that:
“In light of conditional releasees’
(parolees’) substantially diminished expectations of privacy, the
minimal intrusion occasioned by
blood sampling, and the overwhelming societal interests so
clearly furthered by the collection
of DNA information from convicted offenders, we must conclude that compulsory DNA pro-

filing of qualified federal offenders is reasonable under the totality of the circumstances. Therefore, today we realign ourselves
with every other state and federal
appellate court to have considered these issues -- squarely
holding that the DNA Act satisfies the requirements of the
Fourth Amendment.”
United States v. Kincade, 2004
U.S. App. LEXIS 17191 at *71.
Thus, there is now no federal
appellate authority that supports a
claim that DNA testing violates the
Fourth Amendment, even when
done against the inmate’s will.
Most courts assume that such a test
does constitute a “search” within
the meaning of the Fourth Amendment. But see, Nicholas v. Goord,
2004 U.S. Dist. Lexis 11708 *5 n.4
(questioning whether a reasonable expectation of privacy exists
which would trigger Fourth

Amendment protection). Nevertheless, the courts that have considered this issue have found that such
“searches” are not unreasonable,
given the important governmental
interest in obtaining DNA samples
from convicted offenders, the
minimally intrusive nature of DNA
testing, and the greatly reduced
expectation of privacy possessed
by inmates. Similarly, courts have
declined to find any violation of ex
post facto in such statutes. These
statutes are construed to be “civil,”
or “regulatory” in nature, and not
criminal or punitive in nature. Nor
are they seen as increasing punishment for past convicted crimes, or
otherwise subjecting those persons
required to submit to testing to
some additional restraint or disability. See generally State of Maryland v. Raines, 2004 Md. Lexis
504 at *42-68. For these reasons,
the ex post facto protections of the
Constitution have not been applied
to DNA testing.

Sentencing Law Rumors
NCPLS regularly receives letters
from prisoners concerning rumors
that circulate about changes in the
sentencing laws. Some such
rumors include:

• Ηabitual felon laws have been
declared to be unconstitutional.

• Sentences for “non-violent”
offenders are going to be reduced.

It is true that the North Carolina
Sentencing and Policy Advisory
Commission has made certain recommendations concerning sentencing laws to the N.C. General
Assembly. One recommendation
is that habitual felons be sentenced
at three class-levels higher than the
defendants’ underlying offense. At
present, an habitual felon conviction automatically places an

• Ηabitual felon sentencing laws
have been changed, particularly for
non-violent offenders.
• North Carolina is going to depart
from the “85% law” (structured
sentencing) and is going to re-institute the “65% law.”

Unfortunately, none of these
rumors are true.

offender in Class C, regardless of
the underlying offense. Under the
Sentencing Commission’s recommended change, habitual felons
would on average serve a little less
time in prison. However, in order
for such a change to become law,
it must be enacted by the General
Assembly. Such a process involves
legislative debate, and there are
groups who oppose making this
change in the sentencing laws.
Although the Sentencing Commission recommendation has been
pending for more than a year, the
General Assembly has thus far
passed no such legislation.

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Page 7

Kaposi’s Sarcoma - An Inmate’s Guide

Khalief E. Hamden and Shaw M. Akula, M.V.Sc., Ph.D.
Department of Microbiology and Immunology, Brody School of Medicine at East Carolina University

Kaposi’s Sarcoma
Kaposi’s sarcoma (KS) is an unusual form of cancer that is characterized by the presence and
growth of numerous lesions that
develop on the skin or in the
internal organs. KS is a cancer of
blood vessel tissue, which results
in tumors or lesions that are red,
purple or brown in color and can
grow to about the size of a half
dollar. This same condition
afflicted the character portrayed by
Tom Hanks in the movie
Philadelphia.

KS lesions on the leg

Typically, there are three stages of
progression of KS, referred to as:
early patch stage, plaque stage, and
late nodular stage. Early patch
stage involves the presentation of
one to several small splotches that
may be reddish in color and may
spontaneously regress or progress
into plaque stage. Progression of
these lesions into plaque stage is
thought to be a reactive process
that may be the result of an inflam-

matory response elicited by
inflammatory cytokines of the
immune system. Plaques tend to
have better defined borders and
may slightly protrude from the
skin. Lesions that advance to the
late nodular stage are considered a
true cancer or sarcoma because
they are often transformed cells
and may have the ability to spread
to other parts of the body. These
nodular tumors may become highly
defined and protrude extensively
from the skin and may even rupture
and bleed. It is at this stage that
the disease can become a serious
threat to survival as lesions may
disseminate to other organs such as
the lungs, gastrointestinal tract,
liver and spleen.
At least four clinical variations of
KS have been observed. Classical
KS was the first form to be described, which most commonly
affects elderly males of Mediterranean or Jewish descent. Endemic
or African KS is a much more
aggressive form that is common in
some parts of Africa and is known
to affect both males and females of
all ages. Iatrogenic KS is a mild
form that typically emerges in
transplant recipients that are treated
with particular immune suppressing drugs such as cyclosporin.
Probably the most common and
deadly form in North America is
acquired immunodeficiency syndrome (AIDS) related KS. AIDSKS is another aggressive form of
KS that has been one of the leading causes of death among AIDS
patients. The advent of highly
active antiretroviral therapy

(HAART) has significantly reduced
the number of KS related deaths
among human immunodeficiency
virus (HIV) infected patients.
Kaposi’s Sarcoma-Associated
Herpesvirus
Kaposi’s sarcoma is one of several
diseases that is caused by a recently
recognized virus known as
Kaposi’s sarcoma-associated
herpesvirus (KSHV) or human
herpesvirus-8 (HHV-8). This virus
was first isolated and characterized
in 1994; however, classical KS was
originally described more than a
century ago. KSHV has also been
linked to two rare leukemia type
cancers known as primary effusion
lymphoma and multicentric
Castleman’s disease.
KSHV has a poor ability to reproduce itself and infect cells in a
healthy human host. KSHV establishes what is known as latency in
most cells that it infects. Latency
describes a type of viral infection
in which the virus has infected a
cell but is not actively replicating
and thus is not killing the cell.
There are only a small percentage
of infected cells in which the virus
is undergoing lytic replication at
any given time. A healthy person
can effectively fight this infection
with little problem. Unfortunately,
KSHV establishes a more productive infection in persons that
have a compromised or weakened
immune system and so KS has
become a problematic and deadly
disease for people with AIDS.
(Continued on Page 8)

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Kaposi’s Sarcoma

Volume IV, Issue 3, September 2004

(Continued)

(Continued from Page 7)

One of the interesting features
of this virus, which makes it an
important focus of study, is its
ability to cause cancer. KSHV is
one of several viruses that has
recently been identified as a stimulus for cellular transformation,
which means that infection of
normal cells by the virus can
change the cells in such a way that
the cells become tumor forming
(tumorigenic). Other viruses that
have this capability include human
papilloma virus, polyomavirus (JC
and BK), hepatitis viruses (HBV
and HCV), and another human
herpesvirus (EBV). All of these
viruses present major problems of
disease and cancer among HIV
infected individuals.
Treatment
There is currently no vaccine available to prevent KSHV infection
and little chance that one will be
developed due to the natural ability
of the immune system of healthy
patients to control the infection.
For this reason, the best preventive
measure is to avoid behaviors that
increase the risk of infection.
KSHV is a sexually transmitted
pathogen but the mechanism of
transmission is not thoroughly
understood. Evidence suggests that
homosexual partnering may contribute to a higher rate of transmission
than heterosexual coupling. The
basis for this pattern has not been
characterized but there may be lifestyle differences among homosexual males such as increased
promiscuity and increased exposure

to oral-anal and oral-genital contact
that are contributing factors. Thus,
it is advised that precautionary
measures and safe sex practices be
used when engaging in sexual
activity. It has also been shown
that KSHV has the ability to infect
and proliferate in some types of
blood cells. This means that
besides sexual transmission, the
virus might also be transmitted by
needle sharing, transfusion and
other exchange of blood material,
although evidence for this type of
transmission has not been well
documented. Finally, some
researchers have reported the
presence of infectious material in
saliva and mucous but the relationship to transmission of KSHV has
not been definitively demonstrated.
Once infected with KSHV, it does
not seem that the virus can be completely eradicated. Some drugs
used to treat other herpesvirus
infections, such as ganciclovir and
foscarnet, have been shown to be
effective against the infection of
KSHV because of their ability to
target and abrogate the lytic cycle,
which makes them exciting alternatives to more drastic surgical and
chemical treatments. In mild
cases of KS, topical agents and
cryotherapy (freezing) are typically used to destroy the lesions.
In more severe cases, combinations
of topical agents, as well as
radiation, surgical measures
and chemotherapy (drugs
and chemicals) are used to
control the spread of the tumor.
Unfortunately, such treatments
tend to focus on the tumor and not

on the underlying viral infection,
which will continue to cause more
tumors. Hence, for HIV-infected
AIDS patients or other immunocompromised patients the best
treatment consists of boosting the
immune system. For AIDS
patients, HAART medications will
reinstate immune function to an
adequate degree to fight KSHV
when the patient takes the medications as directed and is monitored
closely by a physician.
KSHV and Prison
Prisoners suffering from infectious
disease have a more serious predicament than the typical patient
because they do not have the same
access to health care and the ability
to choose their physicians. In
North Carolina, inmates ordinarily
must rely on prison health care
professionals. (Minimum custody
inmates may be permitted to seek
medical care outside of the prison
at the inmates’ own expense.)
It is often difficult for inmates to
comply with a doctor’s orders.
Some studies have shown that
many prisoners who would otherwise be compliant with their
medicine regimens, fail to comply
due to scheduled feeding times, pill
calls, and directly observed therapy
(DOT) protocols. Such difficulties
should be discussed with the treating health care professional, as well
as with custodial staff, to ensure
that the prescribed course of treatment is workable.
(Continued on Page 9)

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Page 9

Kaposi’s Sarcoma
(Continued)

(Continued from Page 8)

Another confounding issue regarding treatment for prisoners is the
lack of privacy inherent in the
prison system. Some inmates will
shun treatment for life threatening
and contagious disease in an effort
to protect their privacy and avoid
exclusion by the general population. Although it is nearly impossible to maintain anonymity while
taking medications and treatments
in the correctional setting, it is
imperative that treatment is sought
to control infection, reduce the risk
of spreading disease, and prevent
further suffering. According to the
US Department of Justice, nearly
two percent of all inmates in North
Carolina prisons were infected with
HIV in 2001. This was nearly
twice the rate of infection observed
in the civilian population at that
time. These data indicate a desperate need for education among
incarcerated people to assist in
controlling the spread of infectious
disease. From a moral perspective,
the obligation not to spread disease

Ulceration of a KS on the foot

is perhaps the single greatest
imperative. Whether it be loved
ones or fellow inmates, knowing
that you have caused another
person to become infected is a
heavy burden, and one that is not
lightened by regret.
Under federal law, prison officials
and health care professionals may
not be “deliberately indifferent” to
the serious medical needs of
inmates. Estelle v. Gamble, 429
U.S. 97 (1971). Failure to provide
proper medical attention to a
patient suffering from AIDS or
AIDS associated pathogenesis,
such as KS, may constitute an unnecessary and unjustifiable
infliction of pain and suffering, in
violation of the inmate’s Eighth
Amendment constitutional rights.
Id. If you are experiencing any
health problems, you should seek
the help of a health care professional promptly.

Magnification of the ulcer
on the foot

About the Authors: Khalief Hamden is
a masters’ candidate at East Carolina
University in the Molecular Biology and
Biotechnology program. Hamden
received his Bachelor of Science in Preprofessional Biology from Appalachian
State University in North Carolina.
Hamden is currently pursuing a thesis
concerning the entry of KSHV into target
cells and aspects of cellular signaling,
under the auspices of Dr. Shaw Akula, in
the Department of Microbiology and
Immunology at the Brody School of
Medicine. Hamden, who serves as Vice
President of the Biology Graduate
Student Association at ECU, has earned
authorship in several scientific papers and
reviews that have been published in peerreviewed, professional journals. Hamden
is a volunteer student-assistant in the
Department of Infectious Disease at the
Brody School of Medicine and also is an
active volunteer at the Pitt County Care
Clinic, a free clinic for underprivileged
families.
Dr. Shaw Akula is an Assistant Professor
at the Brody School of Medicine in the
department of Microbiology and Immunology. Dr. Akula is a veterinarian by
training, who received a Masters in
Veterinary Science from the Madras
Veterinary College, India. Dr. Akula holds
a Doctorate of Philosophy from South
Dakota State University. Dr. Akula is the
recipient of several grants and an expert
in the field of herpes virology. Dr. Akula’s
lab has contributed to the understanding
of Kaposi’s sarcoma and associated
pathogenesis. Dr. Akula has authored a
number of peer-reviewed manuscripts that
have been published in some of the top
professional journals.

Page 10

NCPLS ACCESS

Volume IV, Issue 3, September 2004

Think Differently from the Herd
By Michael G. Santos - Reg. No. 16377-004

Editor’s Note: The following article, “Think Differently from the Herd,” follows a series of articles by Inmate Michael G. Santos.
They have been republished in ACCESS by permission of the author. 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 Mr. Santos
does not have direct access to the internet, he can be reached by email at: info@michaelsantos,net. Mr. Santos can also be reached
by writing to him at the following address: Mr. Michael G. Santos (Reg. No. 16377-004), Federal Correctional Institution – Florence,
Teller 6-212, P.O. Box 5000, Florence, CO 81266-5000.

I was 23 when the gates
of a maximum-security
prison locked behind
me. I had never been
confined before, and I
was ignorant of what to
expect. Rico, another
prisoner, advised me to
find a weapon. He
suggested that I respond
to even the slightest
provocation with
lethal violence, and
he indicated that such
aggression would keep
predators away.
“It’s easy to survive in prison,”
Rico said. “All you need is a pool
of hatred in your stomach, and a
knife. Hate keeps me going.”
Rico lived by the imbecilic codes
that govern prison behavior. He
had begun serving a five-year
sentence more than a decade before
I was confined. During his early
years, his adjustment led him into a
series of bad decisions. One of
those decisions was to kill a man
whom Rico thought had disrespected him. For that offense,
Rico was prosecuted, and after his
conviction he was sentenced to
serve life in prison. Now Rico’s
body is covered with the skull and
demon tattoos that are so ubiqui-

a human body, just as
children enjoy the
spectacle of water
shooting from a fountain.
Those who choose to
succeed in such an
environment must think
differently from the herd.

tous behind these walls, and he
lives as a permanent fixture in
the institutions that hold him. I
knew that I had to serve my time
differently.
Prison is a bizarre world. It is a
place where a man might stab
another 20 or 30 times because he
stayed on the telephone too long,
or because he moved too slowly in
a chess game. It is a world where
one may think it appropriate to
smash a steel pipe down upon the
skull of another man. Many
prisoners respond with violence
when they feel their honor has been
challenged, or when they perceive
that they have not been given the
level of respect to which they
believe themselves entitled. It is a
world where people enjoy the
spectacle of blood shooting from

Prisoners must expect
that others will make bad
decisions around them
with regularity. These
closed communities foster
a kind of groupthink where failure
proliferates. Rather than acting
in accordance with the principles
of good conduct, many prisoners
forsake common sense and live
their life in prison according to the
loser’s code that so many follow.
For example, I wrote of honor and
respect above. A significant
amount of violence in prison
erupts over misconceptions about
those terms. Outside, people
achieve distinction by educating
themselves, by providing for their
family and contributing to their
community. Although such behavior brings a man a stellar reputation in the real world, it has no
value or meaning inside these
fences.
(Continued on Page 14)

Volume IV, Issue 3, September 2004

NCPLS ACCESS

Page 11

Excessive Force:
An Incident of Incarceration?
By James D. Oakes, NCPLS Summer Intern

Early one morning, nine young
men were arrested in their homes
by police officers. Journalists with
television cameras recorded the
commotion as neighbors looked on,
horrified. These particular arrests
were only one part of a larger
operation in which about 70 other
young men were rounded-up.
About a dozen of these men were
eventually taken to a local lockup, blindfolded,
processed, and taken
to a makeshift prison.
Over the coming days,
the prison guards’ behavior towards the
inmates became
increasingly
aggressive and
degrading. Inmates
were tripped,
ridiculed, and forced
to clean out the
buckets serving as
their toilets with their
bare hands. In one
incident, inmates
were stripped naked and forced to
simulate sodomy on one another.
Although this may seem to be a
description of the recent events
surrounding prisoner abuse in Iraq
or the detainees at Guantanamo
Bay, it is instead a brief synopsis of
what is now infamously known as
the Stanford Prison Experiment. It
took place in the basement of a hall
on Stanford University’s California
campus in 1971.
Much attention has been given
lately to the prisoner abuse that
took place at the hands of the
U.S. Military in the Abu-Ghraib

Prison in Iraq. Among other
incidents, inmates were stripped
naked and photographed while
simulating sexual acts; others were
blindfolded and forced to hold
wires they were told would deliver
deadly shocks; still others were led
around on their hands and knees by
a leash. More recently, reports of
abuses of detainees at Guantanamo
Bay are

beginning to reach the news media.
For decades now, American movies
and television shows have portrayed abuses of American inmates
by prisoners as well as guards. It
does not take a Ph.D. in psychology
to understand, or at least recognize,
this phenomenon. Here at North
Carolina Prisoner Legal Services
(NCPLS), the discussion that led
to this article was initiated by an
inmate’s letter asking us to consider
“the type of person who would be
attracted to a job with bad pay and
the opportunity to carry a club.” A
desire to serve the public or to be
involved in law enforcement, a
family tradition, convenience, or

the chance for a stable job and a
respectable career may be some
of the reasons for seeking employment in a correctional setting. But
the question remains: why do some
officers abuse inmates? Is there
something about the prison
environment in particular that leads
to such abuses?
Dr. Philip G. Zimbardo, a well
respected psychologist
and the architect of
the Stanford Prison
Experiment, suggested
in a recent Boston
Globe article that the
abusers at Abu-Ghraib
should not be looked
at as “’bad apples’ in a
good barrel of
American soldiers,”
but as “once-good
apples soured and
corrupted by an evil
barrel.” He points
to the fact that the
abusive guards in the Stanford
Prison Experiment were specifically chosen for their “mental
health and positive values.” That
led Dr. Zimbardo to theorize that
such abusive behavior may be a
function of the prison environment
itself, and not entirely attributable
to the psychological quirks or evil
tendencies of individuals.
Zimbardo and other researchers
have identified some of the conditions that lead to abusive behavior
by otherwise normal people.
Among those conditions are: 1) the
diffusion of responsibility -- in
(Continued on Page 12)

Page 12

NCPLS ACCESS

Excessive Force

Volume IV, Issue 3, September 2004

(Continued)

(Continued from Page 11)

situations where it is unclear who
is in charge, it is difficult for a
person to put a stop to the misbehavior of their co-workers; 2)
anonymity -- in the Stanford Prison
Experiment, the inmates did not
know the names of the guards
even when guards were wearing
uniforms with nametags attached
(a circumstance that probably
existed in Iraq due to the language
barrier); 3) dehumanization -- in a
prison environment this is almost
inevitable, encompassing the
process of being numbered and
put into a uniform, and stripped
of personal identity; 4) peers who
model harmful behavior -- if one
officer abuses an inmate without
adverse consequences, then others
will be more likely to follow suit;
and 5) bystanders who do not
intervene -- the abuser is likely to
understand that his behavior has
been condoned and is therefore
acceptable; moreover, inaction
allows the abuse to continue and
makes it more difficult, socially, for
other bystanders to speak up.
In Iraq, it should have been foreseeable that these factors would be
present, and therefore the abuses
were predictable and possibly preventable. The guards apparently
had inadequate training and supervision, there were no consequences
for the violation of basic human
rights, there were no clear lines of
authority, there were no generally
understood or shared ethical constraints, no challenges by other
guards or bystanders to the abusive
behavior, and, as discussed above,

there was as a significant language
barrier.
It is also clear, however, that not all
of these conditions need to be
present for abuses to take place.
The guards in the Stanford Prison
Experiment, for example, knew
that their actions were being videotaped and monitored by researchers. Yet, that did not provide
a sufficient deterrent to moderate
their conduct.
Do such conditions exist in North
Carolina prisons? In most cases,
anonymity would not seem to be a
problem. Officers and inmates are
sometimes well acquainted, and
generally at least know each others’
names. There is a fairly rigorous
chain-of-command in place, known
to all officers and most inmates.
On the other hand, in North
Carolina’s prisons, as in nearly all
prisons, inmates are assigned
numbers and made to wear uniforms. There are sometimes
language and educational barriers,
as well as communications difficulties that result from mental or
physical disabilities.
Certainly, some officers are more
aggressive than others, and it is
widely known that correctional
officers will generally “stick
together” when they recount
incidents involving inmates.
But the loyalty demonstrated by
officers for their colleagues is also
present among inmates. Prisoners

who are seen to be too friendly
with officers, or who provide information to prison authorities are
labeled “rats,” or “snitches.” They
are outcasts among their fellows,
and they are sometimes targeted for
violent attacks.
It seems that this kind of group
loyalty is an incident of the adversarial structure of the correctional
setting. The prison environment
creates an “us against them”
mentality, whether you’re an officer
or an inmate. It doesn’t have to
work that way.
Some of the factors that have been
identified as contributing to abuse
are not present in North Carolina’s
prison system, but others are. The
potential for abuse exists – even
among officers who are otherwise
good people with strong values.
The question becomes – how can
the potential for abuse be reduced
or eliminated? Under our existing
system, the answer can only be
vigilance. Where the potential for
abuse exists, and where the tendency to abuse cannot be definitively pre-determined, there would
seem to be no other effective
approach. The responsibility for
that vigilance is shared equally
among four groups – inmates,
correctional officers and their
supervisors, the Department of
Correction (DOC), and NCPLS.
First, inmates must understand that
they have a responsibility to obey
the lawful orders of correctional
(Continued on Page 15)

Volume IV, Issue 3, September 2004

NCPLS ACCESS

Page 13

NCPLS Intern & Volunteer Program:
Law Students in Public Service
The study of law is demanding,
highly competitive, and largely
academic. Students spend several
hours each day in classes that are
intellectually challenging. For
each hour of class time, many
hours are spent in preparation,
reading cases, treatises, and
outlining course materials.
Amidst all these rigors, students
sometimes lose touch with the
reasons that they undertook the
study of law. Summer employment in a law firm can help
students to regain that focus and
provide opportunities to explore
different kinds of careers in law.
NCPLS has a dynamic and
rewarding program for legal
interns that provides the student
many opportunities to gain
experience in public service law.
While we always offer plenty of
chances to show off research and
writing skills, we figure that law
students generally prefer to work

in the field, interviewing clients,
conducting investigations, and
assisting in litigation. Guided

by the personal interests and
preferences of the individual
and the needs of the supervising
attorneys and our program, we
try to develop an agenda that
will spark the creativity and fully
engage the interest of the intern.
The NCPLS Intern and Volunteer
Class of 2004 was perhaps the best
ever. James D. Oakes, Bracken
Mayes, Emily Mistr, and Pamela

Jones hail from the law schools at
UNC-Chapel Hill and NC Central
University. This bright and wellmotivated group contributed more
than 500 hours over a twelveweek period to serving our clients.
We also had outstanding
contributions from two NCCU
law students who volunteered
time to help us serve our clients.
We were deeply honored to have
been chosen as the first law firm
with which the North Carolina Bar
Association (NCBA) partnered
to bestow special recognition
upon our volunteers. Laura Price,
a rising second-year law student,
and Barbara Szombatfalby, a thirdyear law student, were awarded the
NCBA’s Certificate of Appreciation
for their work with NCPLS over
the summer.
Our intern program is directed by
Senior Attorneys Letitia Echols and
Elizabeth Raghunanan.

Client Contributions Sought
At NCPLS, we often receive letters from our clients that show remarkable artistic talent. Our clients frequently
demonstrate the ability to use language in sophisticated, creative, and expressive ways, and we occasionally
receive drawings that reveal skill and accomplishment. These works communicate the full range of human
intellect and emotion, often in unique and moving ways.
In recognition of the fundamental humanity and the artistic talent of our clients, we seek submissions from
North Carolina inmates to share with our readers in our December 2004 edition of ACCESS. Short stories, poems
and drawings will be considered for publication. Entries should be submitted on standard 81/2 x 11 inch paper,
should not exceed 600 words (in the case of writings), and should be addressed to the Editor. Please understand
that we will consider a submission to constitute authorization by the author or the artist to publish the work, and
that all submissions will become the property of NCPLS. We look forward to sharing your creativity with our
readers.

NCPLS ACCESS

Page 14

Volume IV, Issue 3, September 2004

Think Differently
(Continued)

(Continued from Page 10)

In prison a man earns the distinction of a stand-up convict, or
achieves honor and respect by
living according to a set of values
that are completely at odds with
law-abiding citizens. Those who
choose success must think differently from the perverse but prevalent mentality that pervades every
prison community. They must
realize that thinking like the herd
leads to behavior like the herd.
And behavior like the herd leads to
failure heaped upon failure.
Thinking differently is essential to
those who choose success.

Rather than listening to Rico and
the collective but questionable
wisdom that prevails inside the
walls, when I began serving my
term I thought about the obstacles I
would face upon my release. I had
no idea how prospective employers
would respond to my criminal
record or to the many years in confinement that I would have by then
served. I did not expect that they
would perceive me differently from
other job applicants. Thinking
about such challenges impressed
upon me the urgency of making
provisions for release; even though
I was staring down the long end

of a 45-year sentence. I thought it
much more critical to prime myself
for society rather than behave in a
manner that would distinguish me
in the dubious prison community.
Like others who choose success, in
order to avoid the cycle of failure
in which I lived I had to think
differently.
For more information on prisoners
who choose success, I invite
readers to write me, to read my
books or to visit MichaelSantos.net,
where I offer extensive amounts
of free content on prisons, the
people they hold, and strategies for
growing through confinement.

Tips on Corresponding with NCPLS
NCPLS receives hundreds of letters
from inmates each week. While
we like to hear from prisoners and
are anxious to see whether we can
assist them, the following steps
will make it easier for us to provide
better service to our clients.
1. Put your OPUS number on all
your correspondence with NCPLS.
Many inmates have the same name,
but OPUS numbers are unique.
Using your OPUS number helps to
insure that your mail gets into the
correct file for the staff member
who is handling your case.
2. Try to write as clearly as
possible, especially when writing
your name, the name of any
witnesses to an incident, or the staff
member(s) about whom you are
complaining.

3. If you have previously been
known by another name (an alias),
particularly if you corresponded
with NCPLS under that name,
please let us know.
4. It would help us to know if you
have any problems with reading or
writing, including whether anyone
else is writing the letter for you.
5. Try to be specific when
describing your problem(s) or
asking questions. Broad claims
that your rights have been violated
without facts to support your
claims, cannot be investigated.
6. If you have grieved a matter,
please let us know. In most
cases, we will need to see copies
of any grievance(s) that you

~

--

have submitted concerning your
problem. We will also need to see
all the administrative responses and
appeal results. Please remember
that NCPLS is not the place to
file your DC-410 grievance forms.
These forms must be submitted
to staff at your unit or, in the case
of a confidential grievance, to the
Director of Prisons. Our office will
not forward grievances outside the
normal administrative process.

Volume IV, Issue 3, September 2004

NCPLS ACCESS

Page 15

Excessive Force
(Continued from Page 11)

(Continued)

officers. That can be especially
difficult when an order seems
unjust or arbitrary. Such matters
can be addressed after-the-fact
through the Inmate Grievance
Process. But the refusal to
follow a direct order provides
legal authority for the use of
force, which can quickly escalate, especially when an inmate
offers physical resistance.
It is also the responsibility of
inmates to honestly report
instances of abuse that they have
witnessed. Honest reporting
does not require making-up
facts, trying to help a fellow
inmate, or trying to cause trouble
for an officer. It means faithfully
reporting what you have seen,
heard, or have directly experienced.
Your credibility is your most
valuable asset, and it is especially
important in this context.
Correctional officers must recognize abuse, intervene to bring it to
a halt, and report such abuse. That,
too, is a responsibility imposed by
law, and it is the duty of every
officer who aspires to correctional
professionalism. Correctional
officers who undertake a duty to
protect the public and to protect the
health and safety of inmates owe a
higher duty to the public and the
profession than mindless loyalty to
an irresponsible colleague. Moreover, true loyalty to the colleague
demands admonishment when

occur. In that regard, North
Carolina inmates are particularly
well situated to protect their
rights because, unlike inmates
in many other states, you have
the ability to report abuses not
only to DOC officials, but also to
NCPLS.

shared professional and moral
values are disregarded.
When such reports are received,
and when there is credible evidence
to support the allegations, the DOC
must punish abusers. But the DOC
has an independent duty to closely
monitor uses of force, and to provide continuous training and reinforcement of policy. DOC should
also continue to study developments in the field of corrections,
compare experiences with other
agencies, and continuously re-visit
practices and policy to minimize
the range of circumstances that
provide the potential for physical
confrontations.
Finally, independent organizations
must continue to provide inmates
with the tools necessary to avoid
confrontation, and to remedy
violations of the law when they

NCPLS is a non-profit organization made up of attorneys,
paralegals, and support staff.
NCPLS receives and answers
thousands of inmate letters each
year. NCPLS has assisted North
Carolina inmates with many
different issues surrounding
conditions of confinement, including abuse by officers. That
assistance has been provided in the
form of information, advice, and
in some cases, representation in
litigation.
Generations of incarceration as a
tool of the criminal justice system,
decades of scientific research, and
the recent events in Iraq and
Guantanamo Bay, all demonstrate
the difficult challenge of eliminating abuse in the institutional
setting. We all have a part in meeting that challenge. Organizations
like NCPLS exist to defend the
rights of those whom society would
rather forget. To paraphrase a
famous quote, if we look the other
way while others are singled out
and abused, there will be no one
left to defend our rights when at
last our time comes.

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