Verdict in Ashman

On May 8, 2007, a Suffolk Superior Court jury returned a verdict for plaintiff prisoners in the case of Ashman, et al. v. Marshall, et al.  The plaintiffs suffered disgusting conditions for some two weeks at MCI-Cedar Junction in 1999. Guards and administrators locked down their unit, OU-1, to try to force the men to clean. When they did not, the water was turned off and the heat was raised to expose the men in the unit to fetid conditions. Unfortunately the jury awarded plaintiffs only nominal damages of one dollar. This means that the jury ruled that the men’s rights were violated but that they suffered no damage as a result of those violations. Although the verdict is in some ways a vindication of plaintiffs’ claims, the refusal to compensate them illustrates the difficulty of enforcing civil and human rights standards in prisons through civil litigation. The trial lasted two and a half weeks; the MCLS litigation team was Peter Berkowitz, Bonnie Tenneriello, and Al Troisi.

MCLS is on your DOC pin card. The speed dial number is *9004#

January 11, 2007, Hearing    On The New Classification Regulations

MCLS Director Leslie Walker was one of the many opponents of the DOC’s proposed new classification system who spoke out against its adoption at a public hearing at Ashburton Place on January 11, 2007. Not one speaker favored the proposal. The DOC appeared to be aware of the new scheme’s unpopularity, because it handled the public hearing in a manner quite different from the process usually used for new regulations. The normal procedure is for one DOC lawyer to show up with a tape recorder, turn it on, and invite anyone who wants to say something to do so. The lawyer also accepts written submissions. When people are done speaking the lawyer packs up the tape recorder and goes away. There is no discussion of the regulations.

On January 11, there were a lot of DOC staff present to defend the proposed regulations, but there was no tape recorder. Therefore the eloquent statements of those members of the public (including several ex-convicts) who chose to speak but not submit written materials are lost to posterity. The DOC provided Veronica Madden, Associate Commissioner for Re-entry, Dianne Silva, Director of Placement, Carol Mici, Director of Classification, and Kevin Anahori, a DOC attorney who is currently in charge of regulations. Nancy White, DOC’s chief counsel, was also present but did not speak.

So many people had so much to say that it is necessary to merely sample the points made, and MCLS Notes apologizes to those left out. Jack McCambridge, from AFSC, opened by pointing out that the overrides, both mandatory and discretionary, which are contained in the new regulations, gut and render almost meaningless the point scores that will be assigned. The is especially true when you consider that the 15% limit on overrides in the new regulations, which the DOC makes much of, does not apply to mandatory overrides. Chris Davis recounted how in his case he found it very difficult to get the help he needed by way of programming to deal with the issues that landed him in prison because the classification officers he saw seemed only to be interested in his sentence length, not where the necessary programs were located. Veronica Madden responded to that by asserting that the DOC’s “risk-needs assessment” process is a separate process from classification. Be that as it may, one is forced to wonder what sense it makes to separate assessment for programmatic needs from assessment for institutional placement, which has the effect of failing to examine the convict as a whole individual. Bobby Dellelo, who also works with AFSC, provided examples of the ways in which the proposed classification system increases the opportunities for disruption of proper classification. For instance, d-reports jack up point scores and can easily provoke moves even before the hearing. He also pointed out that the time limit for filing classification appeals should run from the point when the prisoner receives written notice of the decision setting out the reasons for the decision, as you can’t write an appeal when you don’t know the rationale for the decision you are appealing. Senator Jarrett Barrios  spoke briefly, indicating that he is keeping a close eye on how the new classification process develops – and that he has filed legislation addressing classification, just in case. The legislation would require the DOC to conform to national norms for the percentage of prisoners in maximum, medium, and minimum security status. Rep. Mike Festa pressed DOC panelists to explain how the proposed changes in classification make sense and what the rationale for the changes is. Dianne Silva replied that the new procedures are designed to take subjectivity out of the system, a response that the audience received with some incredulity. Brandon Keating from the Criminal Justice Policy Coalition emphasized the importance of collecting and making available to the public data about what is actually happening to prisoners reclassified under the new system: are they going up or down, will the overall percentages in maximum, medium and minimum security change significantly at the end of the day?  Veronica Madden replied that the process had not been running long enough to generate that data. Nancy Bennett from the Committee for Public Counsel Services pointed out that the new system’s assignment of cumulative point scores for each offense even where the sentences for those offenses are concurrent changes the whole dynamic of plea bargaining, because a man who knows he is destined to spend his whole sentence in Walpole is going to look at things very differently from a man who has a reasonable expectation of doing most of his time in medium and minimum security. As a consequence he is much less likely to take a plea.

MCLS’ director,  Leslie Walker, stressed problems with the instrument and procedural deficiencies in the new regulations. For example, under the new system the only supervision of classification decisions above the institutional level is in the case of discretionary overrides. Nothing else can even be appealed beyond the Superintendent. This one change wipes out almost all protection afforded by central office review of bad institutional decisions. Changing the basic review mechanism to review by one CPO from review by a classification board every six months doesn’t inspire much confidence, either. At least a board has a discussion.

We have to hope that once the results of the new classification system are apparent, the legislature will step in.

MCLS Name Change & Logo Contest

On March 8, 2007, the MCLS Board of Directors voted unanimously to change our name to Prisoners Legal Services.  Officially, the office will be known as MCLS d/b/a (doing business as) Prisoners Legal Services (PLS).

The name change is long overdue. Both board and staff wanted to make it easier to find us and make it really clear that what we do. PLS is a legal services office for prisoners-not a state agency or a part of state government-that is committed to protecting prisoners’ legal rights and to advocating for meaningful reform of the prison system.

With a name change comes the need for a logo or symbol that can be used on PLS  letterhead and other printed material. It can be a cool use of our initials or a simple drawing that can be easily replicated. Since many of you are artistically talented, MCLS / PLS is asking you to submit entries for a logo design.  MCLS / PLS will be offering a small reward for the logo chosen by the Board and staff.  Please send your submissions to MCLS d/b/a PLS, 8 Winter Street, 11^th Floor, Boston, MA  02018. Start drawing!

State prisoners can speed-dial MCLS at *9004#. County prisoners must call collect on (617) 482-4124. Intake call hours are on Monday from 1 to 4 P.M., or the same hours on Tuesday if Monday is a holiday.

Se habla espanol. El número directo de MCLS para los presos del DOC es *9004#. Los presos de los condados deben llamar el número (617) 482-4124 (a carga reversada).

Lawsuit Charges DOC With Warehousing Mentally Ill Prisoners In Segregation

As the state’s protection and advocacy agency, the Disability Law Center has federal statutory authority to represent the interests of prisoners with mental illness. On March 8, the Disability Law Center (DLC) sued the Department of Correction to end the practice of holding prisoners with serious mental illness in segregation, where they are locked in their cell at least 23 hours a day. DLC filed suit after conducting a year-long investigation of conditions facing mentally ill prisoners in segregation.  The legal team includes Massachusetts Correctional Legal Services; Disability Law Center, Inc.; Bingham McCutchen LLP, and the Center for Public Representation. .

“We visited prisoners at Souza-Baranowski Correctional Center and MCI Cedar Junction, toured the units, reviewed records, and, after an intensive year-long investigation, had our worst fears confirmed,” said Stanley J. Eichner, executive director of the DLC. “The system is broken. These men are being subjected to intolerable conditions which cause them to gravely harm themselves – too often fatally. In the past year, eight prisoners have committed suicide while in segregation. DLC is bringing this suit to redress the wrongful treatment of prisoners with mental illness.”

“For nearly 20 years, the DOC has ignored recommendations from its own mental health providers and consultants, as well as from blue ribbon commissions appointed by two separate governors to create therapeutic units as an alternative to segregation,” added Leslie Walker, director of Massachusetts Correctional Legal Services and an attorney on the case.  “In light of this history, we cannot rely on the DOC to provide what is needed.  Many other states are already saving lives by removing mentally ill prisoners from segregation, including California, Ohio, Wisconsin, Indiana, Connecticut and New Mexico.  We need an enforceable order to safeguard these vulnerable prisoners.”

The complaint filed in Federal Court in Boston alleges that DOC’s actions violate the 8^th Amendment to the Constitution by subjecting the prisoners with serious mental illness to cruel and unusual punishment, and that the DOC discriminates against those prisoners in violation of the American with Disabilities Act.  “Courts have repeatedly held that to warehouse mentally ill prisoners in this way violates the Constitution,” said Robert   Fleischner of the Center for Public Representation. “We won’t be satisfied until our clients are guaranteed treatment units at all security levels, including the highest security, with enough capacity so that nobody with mental illness is wrongfully held in segregation.”

“This is an issue of great public concern,” said Jim Rollins, a partner in the Boston of Bingham McCutchen who is representing the DLC pro bono. “There have been eight suicides in the past year alone -- and many more prisoners continue to suffer outside the public view.  In addition to this human tragedy, there are public safety concerns when mentally ill prisoners are released straight from isolation to the street. Bingham  is committed to assisting DLC with enforcing these prisoners’ rights to humane treatment.”

Health Care Litigation Project

Prisoners in Massachusetts face an increasing challenge in obtaining adequate health care.  Rising incarceration rates and lengthier sentences translate into a larger and older prison population, with more (and more serious) health care needs.  Health care has become one of the most common issues raised in the letters and phone calls that MCLS receives.

In certain respects the prisoner’s dilemma is similar to that faced by people everywhere.  Many people on the outside have difficulty getting access to health care for lack of insurance or other reasons, and they must navigate some large bureaucracies in order to receive that care.  Prisoners likewise have difficulty obtaining access to care – be it a doctor’s appointment, specialist referral, or a prescription – and they too must contend with a formidable bureaucracy that includes correctional and medical staff, both inside the prison and in central offices.  As with the health care system in the community, the prison health care system is confronted with rising costs, resulting in pressure on prison authorities and the medical providers they employ to keep costs down.

One major difference between health care in the community and health care in the prison, however, is the availability of alternatives.  Free patients who feel their condition is being inadequately treated may seek a second opinion, and if all else fails they can go to a hospital emergency room. Prisoners have no such option.

MCLS advocates for individual prisoners with serious medical or mental health concerns, where the prison is not meeting its duty to diagnose or treat.  That advocacy may lead to more adequate care, or it may not.  If not, the Health Care Litigation Project (HCLP) at MCLS evaluates the case.

The HCLP reviews individual cases where the denial of treatment appears to violate the Eighth Amendment (when it comes to health care, prison authorities violate the Eighth Amendment if they are “deliberately indifferent” to a serious medical need).  The HCLP will consider bringing a lawsuit on the prisoner patient’s behalf, seeking injunctive relief – a court order to provide necessary treatment.

The HCLP is only bringing cases that seek treatment going forward.  We are not filing actions for damages based on what happened in the past (under civil rights or medical malpractice law).  With seven lawyers for almost 25,000 prisoners, MCS is unfortunately unable to take damages cases, although on occasion we attempt to refer such cases to other attorneys.

So far, the HCLP has brought four lawsuits seeking treatment for individual prisoners.  Two of them became moot when the plaintiff prisoners began to receive treatment, and the other two are still being litigated.  If you would like MCLS to assist you (or someone you know) with a serious health care issue, please call or write to us.  Please also keep in mind that with any serious health care issue, we will advise you to do the following:

·                If you have received no relief after filing sick call slips, file a medical grievance, and appeal that grievance all the way to completion. For DOC prisoners, there are two appeals:  first to the UMass Correctional Health Medical Director, and second to the DOC Health Services Division. Please keep copies of everything you submit; if you cannot obtain photocopies of your sick slips, grievances, or appeals, please handwrite an identical version at the same time that you submit the original version.

·                Obtain and hold onto your medical records, to the extent that you are able.

·                Keep a journal or list of events that relate to your health care condition or issue.  Write down anything important that happens – a cancelled appointment, a discussion with staff, a medical emergency – including the date and time, and any witnesses or people who spoke to you.

MCLS is now known as Prisoners Legal Services. Our mailing address is still 8 Winter Street, 11^th Fl., Boston, MA 02108

Getting Help For Hepatitis C

In 2000, the Massachusetts Department of Public Health found that about one-third of all prisoners starting state sentences are infected with the Hepatitis C virus. If you think that  you may be infected with hepatitis C, you should consider being tested. The testing process for Hepatitis C is long and complicated, and even many people who have the virus are not sick enough to justify the risks and side effects of treatment. This complexity and delay often leads to misunderstandings with prison medical staff. The best rule of thumb for approaching Hepatitis C treatment in prison is to be patient and keep good records of all conversations you have with medical staff and of tests that you undergo. To get tested for Hep C, submit a sick call slip or speak to medical staff.

Most likely, you will first undergo a blood test called ALT to determine whether your liver is producing high levels of liver enzymes. This testing requires that medical providers draw blood.  If the ALT test shows abnormally high levels you should be tested again between six months and a year later.  Your ALT levels must reach at least 1.5 times normal two times in a 6-12 month period in order to be considered for treatment.

The next step is usually another blood test, this time for Hepatitis C antibody. If the antibody test is positive, you should also request to be immunized for hepatitis A & B. You may also request testing for HIV at this time.

Under the current UMass - DOC Hepatitis C rules, once you have tested positive for HCV, you must meet certain requirements to be considered for treatment. Medical staff should explain those criteria to you. In order to determine whether you meet those requirements further tests, called a medical and laboratory evaluation, are necessary.

If you do not meet the criteria after both the medical evaluation and the laboratory evaluation, you most likely will be refused medication and put on the Chronic Care List until you meet the criteria for inclusion. 

If you do meet the criteria after the Medical Evaluation and the Laboratory Evaluation, you may undergo a liver biopsy at Lemuel Shattuck Hospital to determine whether fibrosis (physical damage to the liver) exists. Ask your doctor for information regarding possible risks involved with liver biopsies.  Most likely, you will be eligible for Hep C treatment medication only if your liver shows moderate fibrosis.  Fibrosis is the development of fibrous tissue in the liver that replaces normal cells.  It is measured on a scale of 1-4 with 4 being cirrhosis of the liver, 3 being severe fibrosis, 2 being moderate fibrosis, and 1 being mild fibrosis.

In order to receive medication for Hep C, a gastrointestinal specialist at Lemuel Shattuck Hospital must recommend it. Once you are recommended for treatment, you will be placed on a waiting list for medication. UMass - DOC treats only a small number of prisoners at one time.  Waiting a year or more to begin treatment is not uncommon.  Luckily, Hepatitis C is a very slow moving virus, and many people can wait long periods before starting the treatment without causing further damage to the liver.  Some people even clear the virus on their own, without treatment.  There are many things people can do to slow the progression of the virus. A booklet called Living With Hepatitis C produced by the Massachusetts Department of Public Health contains information about ways for people with Hepatitis C to live as healthily as possible.

If you feel you meet all the criteria for treatment, but are not recommended for treatment, you should file a medical grievance. If you request testing for Hep C, but are denied or ignored, you should file a medical grievance. You must fully appeal your grievance to all levels if you are dissatisfied with any part of the response you receive or you will lose your right to sue. You must also treat a non-response to your grievance as a denial of the grievance.  That means that if you get no response to your grievance, you must appeal and mention that your original grievance got no response. Please remember that there are 2 levels of appeals that must be filed in order to preserve your rights. Medical grievance forms should be available from medical staff. If you cannot get a medical grievance form, MCLS can send you one.

MCLS encourages you to request a free copy of  Conquering Hepatitis C by Dr. Willis C. Maddrey. This booklet is available from:

American Liver Foundation

75 Maiden Lane, Suite 603

New York, NY 10038

If you feel you are eligible for testing or treatment but are not being tested or treated and you have exhausted the medical grievance procedure, please request your medical records directly relating to hepatitis C testing and diagnosis.  Forward them to Al Troisi at Massachusetts Correctional Legal Services, 8 Winter Street, 11th floor, Boston, MA  02108.  Upon receipt of these materials, we will evaluate your information and either advocate for you or advise you about next steps.

Other Litigation

Denial of Legal Assistance to Prisoners on Mental Health Watch

Brown, et al. v. Maloney, et al. opposed the DOC’s practice of denying prisoners on mental health watch status all attorney access by preventing them from receiving legal visits, making  legal phone calls, or mailing or receiving any legal mail. Initially, the Superior Court enjoined the DOC from denying a lawyer visit for more than 72 hours to any person held on mental health watch, but the case was subsequently dismissed as moot. However, Lindsay Hayes, a mental health expert hired by the DOC to review its mental health operations, recommended in his final report that attorneys have free access to prisoners on mental health watch. The DOC has said that it will implement Hayes’ recommendations, but it remains to be seen whether it will actually follow through.

Foxworth Struggle Continues

By MCLS Board Member Tony Gaskins

The Foxworth case was filed by some prisoners at Cedar Junction in regards to their conditions within the Awaiting Action Unit in Ten Block where they are being denied their televisions and canteen purchase of limited food items. It also dealt with other issues of confinement, but the judge (Botsford) only granted summary judgment on the televisions and food-item canteen purchases. Since the DOC designated all segregation units "SMUs," the plaintiffs in Foxworth thought that they were entitled to canteen purchase and their televisions under 103 CMR 423.00 et seq. The judge agreed with the plaintiffs.

However, although the judge gave a final order for the DOC to provide "all" prisoners within Massachusetts prison segregation units these rights, and the DOC refused to appeal the order, the DOC refuses to abide by the order and provide all segregation prisoners (who are not being punished) with their televisions and the right to buy canteen food items out of the canteen. In response to grievances filed by segregation prisoners seeking compliance with the Foxworth order, the Inmate Grievance Coordinator is telling the prisoners that "an emergency modification of 103 CMR 423 has been implemented." This is a violation of Judge Botsford's order and the plaintiffs moved for contempt and modification of the previous order. The DOC filed their response to that motion on December 15, 2006 arguing that none of the plaintiffs are presently locked up in segregation so they should not be held in contempt for non-compliance.

The Foxworth case is still an ongoing fight between the plaintiffs and the prison administration because the commissioner and "some" superintendents at various prisons don't want prisoners to be afforded televisions and canteen purchase on AA status -- althougth they are not being punished under that status. The guards’ union wants the televisions and canteen purchases returned, the court has ordered such privileges to be returned immediately, but the struggle continues.

All prisoners who the order applies to need to file grievances seeking compliance with the order because since AA prisoners are not being punished, they are entitled to be treated with the same kindness as prisoner in general population, i.e., afforded the same property rights. MCLS will provide news about developments in the Foxworth case to prisoners who inquire.

News From the Phone Fronts

MCLS and Stern, Shapiro, Weissberg & Garin continue to work on three fronts in their investigation of the best way to challenge the exorbitant telephone surcharges that prisoners’ families, friends, lawyers and others must pay to speak with prisoners in Massachusetts prisons and jails. We are investigating an administrative challenge before the Department of Telecommunications and Energy (DTE) that would seek to eliminate the DTE’s approval of a $3.00 per call rate cap for prisoner collect calls following a hearing in 1998 at which the only entities to testify were telephone companies who provide this type of service. On the legislative front, we are looking at strategies that led to the passage in Vermont and Rhode Island of legislation that eliminates all surcharges on prisoner phone calls and prohibits providers from charging for calls originating in prisons in excess of market rates. Finally, we are studying constitutional challenges to surcharges and commissions on prison-originated calls as illegal, unauthorized taxes or ultra vires fees. We will keep you posted on developments as they occur.

Director’s Note

MCLS is now a 7.5 attorney, four paralegal office. Since we couldn’t possibly meet the legitimate civil legal services needs of the nearly 25,000 men and women in Massachusetts prison and jails, the MCLS Board of Directors decided that the office should focus its work on four priorities: health including mental health care, guard brutality, segregation and extreme conditions of confinement. 

Each year, MCLS advocates open between 2,500 and 3,000 “intakes” or brief service matters.  Our work ranges from advocacy to giving prisoners and their families advice and materials, referrals to other agencies, and litigation. All too often we must tell prisoners that we cannot help them and that it is unlikely that anyone else can.

The only individual cases MCLS brings are brutality cases and recently, failure to treat medical cases. MCLS also has more than twenty class action/multiple plaintiff cases pending and several more getting prepared for filing.

I sometimes hear about prisoners who say their letters are not answered.  If that happens, I want to hear about it. I have been at MCLS for 6 years now and am happy to report that MCLS has a very efficient intake database and systems for dealing with all incoming correspondence already in place. Sometimes letters don’t make it out of prison so if you don’t hear from us, please don’t assume MCLS is not interested in your issue.  Write again or call on Mondays (Tuesdays after a Monday holiday) from 1-4 pm at *9004#.

We all wish we had more staff and more hours in the day to fight for you.  We all hate having to turn people away.  Additionally, as many of you know, prison law has gone from bad to worse in the past ten years and “prisoners rights” are few and far between. MCLS is committed, however, to helping as many people as we can and do so by prioritizing the most serious, egregious intakes and cases and fighting like hell for you when we do. That does not mean any of us are perfect. Please send me your ideas and any constructive criticism you have. Thanks.

                                - Leslie Walker

Short Advice: Grieve It or Forget About It

Nowadays almost no claim that a prisoner may have against a prison or its staff members can be pursued in court unless the prisoner can prove that he or she grieved the matter as far as the grievance process permits before filing a lawsuit. A federal law called the Prison Litigation “Reform” Act (Title 18 U.S.C. Section 3626) requires such grievances for all claims of violation of federal law whether constitutional or statutory made by prisoners. The PLRA applies to prisoner claims of violations of federally protected civil rights, whether the case is filed in federal court or state court.

In addition, separate Massachusetts statutes  require that prisoners exhaust administrative remedies before filing state law claims as well. The Massachusetts statutes limiting prisoner law suits are found at G.L. c. 127, §§ 38E and 38F; at G.L. c. 261, §§27A and 29; and G.L. c. 231, § 6F. Prisoners (and attorneys) who wish to file law suits on behalf of prisoners should familiarize themselves with these statutes before filing any complaint. The bottom line is, if you cannot show the court that you grieved and appealed your claim before suing, your lawsuit will be dismissed.

Disciplinary Hearings

MCLS does not provide representation at  disciplinary hearings. For assistance with d-hearings, contact PLAP, Austin Hall, Harvard Law School, Cambridge, MA 02138, collect calls: (617) 495-3127.

Lifer Parole Hearings

The Prisoners Assistance Project at Northeastern University Law School may be able to help second degree lifers with parole hearings coming up next fall and winter. Write to: Prisoners Assistance Project, 716 Columbus Ave., Rm. 212, Roxbury, MA 02120

New Contact For Warrant Clearing and Civil Legal Aid for Women at MCI - Framingham

The Women’s Bar Association has a  Framingham Project that provides volunteer services for women at MCI-Framingham who need assistance with legal matters related to their incarceration but not directly related to the prison system. The project assists women with custody matters, guardianships, protective orders, and the like. The project can now also assist a limited number of women with warrant clearing. The procedure for getting help from the Women’s Bar Association Framingham Project has changed. For referrals to the WBA Framingham Project, call the Harvard Prisoner Legal Assistance Project at (617) 495-3127. That number may be called collect. Women who need help clearing warrants should have the name of the court and the docket number(s) of the cases they need help with when they call.

Apuntes de MCLS está disponible en español

MCLS Notes is available in Spanish. Please share this information with Spanish-speaking prisoners. Por favor informe a los presos que hablan español. MCLS has also translated many of its information packets into Spanish. También hemos traducido muchos de nuestras hojas informativas, los cuales son disponibles a personas que las piden. They will be provided, where available, to people who request them over the phone or in writing. Aceptamos cartas escritas en español.

MCLS Birthday, Name  Change And Logo Contest

On June 6, 2007, MCLS will celebrate 35 years of representing and advocating for people in prison or in jail in Massachusetts. The event will be a fundraiser (of course). MCLS staff and its Board of Directors have decided that the office’s name should be changed to Prisoners Legal Services in order to more clearly reflect our mission and values. To go along with the new name we want to design a new logo to replace the one on page one of this newsletter. The logo also appears on our web site.

MCLS would like to use a logo designed by a prisoner. Anyone who wants to submit a proposed logo should do so by mailing it here by June 30, 2007. The prisoner who submits the winning logo will be prominently recognized in the next issue of MCLS Notes for his or her artistic talent. 

Speed Dial phone number for MCLS for state prisoners: *9004#

MCLS has arranged with the DOC for a toll free speed dial number that is accessible to all state prisoners on the PIN system. County prisoners must call collect on (617) 482-4124.

Families and friends of prisoners can also call MCLS for free on 1-800-882-1413 toll free from anywhere in the state. Prisoners who cannot reach us by phone should write to: Prisoners Legal Services, Eight Winter St., Boston, MA 02108.

Regular call-in hours are 1:00 to 4:00 on Monday afternoons unless you are in segregation, in which case you can call between 9:00 and 4:00, Monday to Friday. If you are calling from seg, please state your unit to our receptionist to get through. On weeks when Monday is a holiday, MCLS accepts calls on Tuesday from 1:00 to 4:00.

MCLS NOTES

January 2001

Published by Massachusetts Correctional Legal Services, Inc.

Eight Winter Street, Boston, MA 02108

Phones: (617) 482‑2773, (800) 882‑1413, (617) 482‑4124 (collect)

Legislature Investigates Shirley Shakedown

In mid‑October of 2000 a tactical team shook down MCI‑Shirley Medium over a three‑day period. A substantial number of men (between twelve and twenty) were injured badly enough by the tactical team to require medical attention. Strangely, the tactical team filed only three use of force reports. Within a few days of the shakedown a number of the men spoke to a Protestant chaplain at the prison named Paul Poyser. Rev. Poyser has worked at MCI‑Shirley Medium for several years, and prior to becoming a chaplain had worked as a prison administrator. Disturbed by what he heard from the men at services, Rev. Poyser interviewed all of the men he could find who had been injured. He was outraged by what he learned, and he prepared a report of the men's stories, the injuries he had observed and other evidence on unlawful behavior by the tactical team and sent it to Commissioner Maloney.

The commissioner called Rev. Poyser to his office, met with him, and promised that he would conduct an internal investigation of the shakedown. Commissioner Maloney also told Rev. Poyser that he would tell him the results of the internal investigation. Three weeks later the Commissioner called Rev. Poyser back to his office and informed him that his “internal investigation” had revealed that nothing had been done wrong during the shakedown. At this point, Rev. Poyser concluded that the DOC administration was not going to deal with the unlawful behavior he had uncovered, and he decided to go public with his findings. MCLS placed Rev. Poyser in contact with a number of legislators, who met with him and determined that they should investigate the matter themselves.

On Monday, December 18 a delegation of state legislators paid a surprise visit to MCI‑Shirley and demanded to see the men who they knew had been injured during the shakedown. The legislators who appeared at MCI‑Shirley that morning are Representatives Kay Khan, Anne Paulsen, Jarrett Barrios, Alice Wolf, Gloria Fox, Pat Jehlen, Byron Rushing, and Senator Dianne Wilkerson. Senator Pamela Resor also sent a member of her staff. Prison officials were deferential to the legislative delegation and allowed the legislators to meet all together in the visiting room with the men they asked to interview for several hours. Legislators came equipped with CORI and medical releases for the men to sign to facilitate their later access to the men's institutional and medical records. Between twenty and thirty men were interviewed and extensive reports gathered from them regarding the mistreatment they suffered during the shakedown.

At the beginning of January, the legislative delegation met with Governor Cellucci and emphasized their view that a full and impartial investigation of the shakedown will be necessary. At that time, Commissioner Maloney, who was also present at that meeting, asserted that in internal DOC investigation was still underway. Given the "results" of the first DOC investigation of itself, the legislative group is unsatisfied with that approach and has so indicated to the governor. Legislators are considering holding public hearings on the shakedown and shakedown procedures, and have also asked the United States Department of Justice to investigate.

MCLS has been active in assisting these senators and representatives with their investigation and plans to continue to back their efforts to get to the bottom of the matter and take whatever steps are necessary to prevent a repetition of the senseless brutality inflicted on the men, either at MCI‑Shirley or other prisons. 

Spectacular Opposition to Regulations Prohibiting Ex‑Prisoners From Working in Human Services

More than 250 people materialized at a public hearing on new regulations of the Department of Public Health (DPH) that would effectively bar most former prisoners from ever working in the human services field. The hearing was held at the DPH on Washington Street in Boston on Friday, January 19. Scores of  people testified against the regulations, which are numbered 105 CMR 950. Not a single person testified in favor.  Opposition came from a broad spectrum of human services organizations, all of whom pointed out that the regulations will keep them from hiring people who have "been there," who are the best people to work with populations at risk for AIDS and other substance abuse related problems. Leadership of the African‑American community including Gloria Fox, Charles Yancey, Charles Turner, and Dianne Wilkerson, as well as Minister Don Muhammad and other clergymen, were especially outspoken and vowed that these restrictions, which force people with CORI records towards permanent unemployment, will never be permitted to stand. MCLS Acting Director Peter Costanza also testified, stating that these anti‑employment regulations need to be placed in the larger context of a nationwide increase in the use of civil punishments that go on damaging people after their criminal sentences are over. DNA registration, sex offender registration, welfare and housing disqualifications are all forms of civil punishment, and they all attack African‑American, Latino and other minority communities disproportionately because the criminal justice system convicts and incarcerates minorities disproportionately.

Legal Notes

STG Classification and Segregation: Haverty v. DuBois, et al.

Haverty v. DuBois is a class action which challenges the confinement of prisoners at MCI‑Cedar Junction in "Security Threat Group" (STG) and other restrictive East Wing blocks. There are two claims in the case, due process and equal protection. The due process claim says that the DOC's methods for determining who is a gang member are completely irrational and arbitrary. The equal protection claim says that the manner in which the DOC classifies people as gang members is hopelessly infected by racial bias against Latino prisoners, who constitute 90% of the people in the gang blocks. The superior court entered summary judgment on the due process claims in favor of the prisoner plaintiffs. That decision is currently on appeal ‑ the briefs are filed, and a motion for Direct Appellate Review by the Supreme Judicial Court is pending. The superior court set the equal protection claim for trial. That trial is now scheduled for the end of April and the parties are now supplementing their discovery.

Collective Punishment by Immersion in Filth: Ashman v. Marshall, et al.

 Ashman v. Marshall, filed in January 2001, seeks damages on behalf of a number of men deliberately forced to live in a slurry of human waste and garbage for a period of weeks in a cell block at Walpole during 1999. The suit alleges that prison officials turned off the water for days and turned the heat all the way up after some of men on the unit threw garbage and human waste onto the tier to protest their movement from the minimum to the maximum end of Walpole with no explanation and no prior acts that could have justified the transfer. The plaintiffs in this case were not among the men who threw waste onto the tiers and none of them received disciplinary reports alleging such actions. They were nevertheless forced to endure unspeakable conditions and a number of them were sickened.

Ex Post Facto Lengthening of Parole Reconsideration Period: Collette v. Pomarol

 Collette, et al. v. Pomarol, filed in the spring of  2000, challenges the retroactive application of a change in the law governing parole reconsideration for second degree lifers, G.L. c. 127, sec. 133A, that permits the parole board to review them every five rather than every three years. There have been a series of  U.S. Supreme Court decisions over the past three years, each of which has made this claim much more difficult to prove. MCLS is pursuing this matter nevertheless because of the terrible effects that the policy change has for second degree lifers, most of whom are already not really being considered for parole for at least a decade after their "official" parole eligibility at fifteen years. The parole board's motion to dismiss this action will be argued at the beginning of March.

Expropriation of Funds for DNA Testing: Winters and Colon v. Maloney

Winters and Colon v. Maloney, amended complaint filed by MCLS January 2001, challenges the unlawful expropriation of prisoner funds by the DOC under its notorious ten‑dollars‑within‑sixty‑days standard of indigence, which directly contradicts the express reference in the DNA law itself to the general civil indigence standard found in G.L. c. 261, sec. 27A. The superior court (Neel. J.) entered a preliminary injunction in this case requiring the DOC to determine the indigence of the two named plaintiffs as the law requires, and specifically stating that prisoners may be found indigent for purposes of DNA fees under section A, B, or C of sec. 27A. At least four other pro se actions challenging this practice of the DOC have been filed, and there have also been thirty to forty motions to intervene filed in Winters and the other actions, all of which have been denied. Because all of the actions and motions to intervene involve identical claims of law, the amended complaint filed by MCLS seeks class‑wide relief for all prisoners subject to DNA collection. If class certification is granted and if the case is successful, all prisoners whose money has been seized despite their inability to pay will benefit. It will not be necessary to file motions to intervene in this action unless class certification is denied.

Prison Violence Project: Gaskins v. Marshall