MIM Notes # 222       Nov 15, 2000

MIM Legal Notes

MIM Legal Notes is researched and written by our comrades behind 
the walls. We publish these articles and briefs because we believe 
that the legal research and arguments will be useful to other 
prisoners. But comrades should be aware that differences in laws 
between states, changes in laws and legal precedents over time, 
and different case circumstances all mean that even something that 
was successful for one person might not work for others. We print 
the best legal writing available to us with the understanding that 
this program will only grow stronger with increased exposure and 
participation. We encourage all prisoners and non-prisoners to 
contribute to this program with research, writing, and funding. 

There may be other legal arguments or cases or statutes which 
would better serve your purposes; what you find here should be 
useful as a starting point. If you can do your own legal work, you 
may choose to rely on a purely bourgeois legal argument, or also 
use political arguments to make your legal case.

The following is a letter memorandum from a prisoner to a judge in 
Indiana, explaining the inhumane conditions at his prison. Below 
that is an article describing how to fight injustice within 
prisons using the prison's own rules and regulations. MIM has 
edited both articles and added our comments where appropriate. 
Both of these articles help teach how to fight injustice within 
the legal system. And MIM believes in using the oppressor's laws 
whenever possible to gain improvements in living conditions for 
the oppressed. But we emphasize the nature of the system which is 
inherently unfair. Amerikan prisons systematically deprive 
prisoners of rights, acting not as a system of justice but as a 
system of social control. While we may win some battles through 
the legal system, only a revolution overthrowing imperialism will 
make it possible for us to build a system of true justice.

Inhumane conditions also illegal

To: Allen Sharp, Chief Judge United States District Court 

204 S. Main Street, Rm, 102 

South Bend IN 46601-2194

Re: James Hendrix, et al V. Gordon Faulkner, et al, Case no. 525 
F-Supp. 435, 527 (N.D. Ind. 1981)

Dear Sharp, Chief Judge:

I write regarding the conditions prisoners on the D-A/S 
(Disciplinary/Administrative Segregation) unit are under at the 
Indiana State Prison (ISP). Because of gross overcrowding at the 
prison, prisoners on this unit spend 23 to 24 hours each day 
locked in cells less than 80 square feet, without the opportunity 
for sufficient out-of-cell time and recreation. Those who are 
responsible for the operation and management of this prison are 
well aware that these same cruel conditions were condemned in a 
1981 Injunctive Order against ISP in Hendrix, but, due to their 
lack of professionalism and good judgement, they refuse to honor 
this injunction and deliberately ignore it. [MIM ed.: MIM does not 
believe that the officials lack "good judgment". We believe they 
are deliberately using their judgment to determine that depriving 
prisoners of humane conditions is a much more effective form of 
social control than providing livable conditions in prisons.] This 
complaint is an attempt to call upon you to immediately intervene 
to stop this blatant violation, and to protect those who currently 
suffer inhumane conditions, which are further explained herein as 
follows:

1. Overcrowding

In Hendrix, this court order was as follows: "On and after January 
1, 1984 no more than 1615 inmates shall be confined at the I.S.P." 
This injunctive order is currently being violated by officials who 
are exclusively responsible for the management and operation if 
the Indiana State Prison. The population exceeds 1615 inmates; in 
fact, the prison is currently confining approximately 1800 or more 
inmates at the ISP. This gross overcrowding has existed for over 
two years and is a result of ISP and Indiana Department of 
Corrections (IDOC) personnel adopting a practice of housing 
security level two and three prisoners at the ISP, which is not 
statutorily authorized, because ISP is a security level four 
prison.

2. Out-of-cell time and recreation

Prisoners on D-A/S are confined to cells that range from 54 to 56 
square feet in size from 23 to 24 hours a day. But, due to 
fixtures in these cells, such as bed, cabinet, toilet/sink 
combination, there is only 20 square feet remaining for the 
prisoner to move around in. The size of the cells in D-A/S and the 
minimal time allowed out to exercise contravenes the Eight 
Amendment. Contributing to this limited time out of cell is the 
overcrowded conditions at this prison. In UNDRamas v. LammEND, 485 
F. Supp. 122 (N.D. Col. 1979), aff'd, 639 F.2d 559 (10th Cir. 
1980), the district court ordered that, "No prisoner may be housed 
in less than 80 square feet for 20 or more hours a day. If the 
confining space decreased from 80 square feet, the hours of 
confinement therein must be reduced proportionately." 485 F. Supp. 
at 170. The Eighth Circuit has also recognized that the size of a 
cell must be related to the time out-of-cell. Campbell v. 
Cauthron, 623 F.2d 503 (8th Cir. 1980). At Hendrix, this court's 
injunctive order issued against ISP mandates: "that all prisoners 
receive three hours a day of time out of cell. Outdoor exercise 
must be available at the option of the prisoner for one of these 
three hours every day if weather permits." This order is being 
currently violated by ISP officials; we are only allowed 45 
minutes of outdoor recreation, and this is twice a week only. The 
other five days in the week we are allowed indoor recreation for 
only 9 hours out-of-cell on three of these five days, and only 30 
minutes on Tuesday and Thursday. This is hardly sufficient out-of-
cell time and recreation, in light of the cell size and the time 
prisoners are locked in the cells.

3. Inadequate shower facilities.

Prisoners on D-A/S are forced to shower in extremely small and 
cramped shower facilities. Each day 15 prisoners are forced to 
pile in and bathe in a shower that is only designed for two 
persons. The majority of the time these 15 prisoners are only 
afforded 15 to 30 minutes total to bathe in these small and 
cramped shower facilities, which is insufficient time for all 15 
prisoners to shower themselves adequately. The most inhumane part 
of this cruel condition is prisoners under these cramped 
conditions bump into each other and splash soap on each other 
because of the lack of space, and having five or six men at a time 
in this 2 person shower only makes it worse. The ISP officials are 
aware of this inhumane condition that D-A/S prisoners are forced 
to endure, but, they show deliberate indifference by continuing to 
allow this inhumane condition to exist and by refusing to spend 
the money to either expand these shower facilities to eliminate 
this problem or by affording prisoners on this unit sufficient 
out-of-cell time to enable prisoners to shower only two at a time. 
The way prisoners are forced to pile in these showers is barbaric 
and is a serious health problem. Your action is requested in this 
matter as well.

Respectfully, 

An Indiana State Prisoner 

20 June 2000

MIM adds: The writer is using the term "deliberate indifference" 
as a term of art--it is the language cases use when deciding 
whether a prisoner's constitutional rights have been violated. 
While it is important to know and understand the relevant legal 
language that is part of prisoners' legal battles, MIM reminds our 
readers that the deliberate nature of prison officials' actions is 
designed to maintain the system of oppression and social control.

Fight prison injustice: learn your legal rights

While our incarceration deprives us of many of the freedoms 
afforded to the larger society in America, we, as prisoners, do 
supposedly retain guaranteed rights that are protected by the 
United States Constitution. Otherwise, we would be forced to live 
in a climate of barbarism and cruelty. [MIM ed.: We believe that 
all prisoners in Amerika are already forced to live in barbaric 
cruelty.] Sadly though, many prisoners have abandoned the idea 
that they have any rights left at all and thereby resign 
themselves to not exercising them. The prison system is ruled and 
governed by rules and policies which are usually referred to as 
Administrative and Executive Directives. They can be read by 
visiting, or ordering books from, the Unit Law Library. Request 
the Administrative Directive - Index. This folder will open the 
door of information regarding practically every rule and policy, 
in practically every area of interest in the prison community. 

It would behoove every prisoner to become acquainted with the 
information compiled in this index. There will be times when not 
knowing policy and your basic rights will cause you great 
miseries. On the other hand, increasing your knowledge will make 
your efforts towards addressing problems when they arise much more 
effective. One area of concern of great importance to us is 
Disciplinary Rules and Procedures. The Administrative Directive 
concerning Disciplinary Procedures is 03.76 (A.D.) This folder 
will provide you with a full view of policy in this area. However, 
for practical purposes, you should write the Counsel Substitute on 
your unit and request: Disciplinary Rules and Procedures for 
Offenders. This free book can be obtained with a "160" request. 

As prisoners, we are subject to one day find ourselves before a 
Disciplinary Captain, pursuant to a major Disciplinary Report. 
And, just like a judge, his job is to convict, if he determines 
you did commit an offense. And you must keep in mind that he 
believes that something did occur, otherwise you wouldn't be in 
court. [MIM ed.: MIM does not credit the prison pigs with this 
kind of fair mindedness. It may be that the prisoncrat knows that 
the prisoner did nothing wrong, but believes that he can trump up 
enough "evidence" to "prove" it.] Where your rights are concerned, 
the Captain is not going to pull out a book and explain this to 
you. You have that responsibility, and your ignorance will only 
leave you vulnerable to whatever the Captain wills to impose on 
you, whether his imposition be fair or unfair. [MIM ed.: The power 
imbalance in prison is always unfair--no matter what rules 
prisoners may break, the punishment meted out to them cannot be 
considered fair under the circumstances of political imprisonment 
and social control.]

Most offense reports written against me have been truthful 
accounts. However, recently I received a major case for an offense 
which I didn't commit. I lost my class, good time, custody level, 
etc. This is usually what happens in major court. We as prisoners 
must make the Administration aware that we intend to pursue our 
rights. Originally, I set out to write this article for the Echo, 
Texas' prison newspaper. However, I realize that no matter how 
objective I am about this matter, I'm sure the Echo won't touch 
it. I could write it in a compromising fashion that would be 
acceptable to the officials in Austin and Huntsville, TX. But, for 
the sake of truth, they won't get to touch this. 

Before an officer writes your case, according to page 1 of the 
1998 edition of Disciplinary Rules and Procedures for Offenders, 
under 1(A) Reporting Infractions, there should be an attempt to 
resolve the matter informally, unless you are committing a so-
called hideous offense. If the officer cannot resolve the issue 
with you, he/she should then get a ranking officer to attempt to 
resolve the issue. Whenever you are written up and this process 
does not occur, you should write the officer up for a violation of 
PD21 rule 7 (Substandard Duty Performance) before you even go to 
court. Then file your appeal on whatever grounds exist. Usually on 
this unit the ground for appeal is excessive punishment. However, 
the two other grounds are: insufficient evidence for guilty 
verdict, and procedural violations such as, no notice of charges 
before hearing, you weren't allowed to call witnesses, and so 
forth. See page 23 C regarding appeals. Also see page 20, Section 
B regarding punishment. 

Your punishment, pursuant to a major disciplinary conviction 
should be fair and impartial. Not harsh and excessive. But most of 
the time, the captain does what the hell he wants because no one 
challenges his actions. And we are slowly being driven to the 
ground by people who are taking advantage of our ignorance and 
unwillingness to resist their sadistic attacks. 

To give you a clear view of how the law is being broken, the 
following brief scenario should serve as a good illustration. 
Often minimum custody prisoners with class and good time are kept 
in check by the knowledge that they have something to lose. So if 
you get out of line you are subject to get written up, real fast. 
Often, getting out of line may be speaking against something you 
feel is wrong, not snitching on a fellow inmate, or simply walking 
with your head up may piss one of the guards off. You have to 
understand the twisted mentality of some of these people. They 
have been tricked into thinking that they are better than 
prisoners, when in fact they're only more obedient to the 
hypocritical rulers of society. Their mere delusion of being above 
is what propels them to disregard our rights. However, you can 
bet, when one of them gets in trouble they will seek every right 
available to them, via the U.S. Constitution, an essential element 
of American life which they deliberately deprive you of. You 
should be indignant and pissed off at this hypocrisy. 

Let's say you are walking to chow, and an officer tells you: "Come 
here, Inmate!" as they often do. The officer begins to harass you. 
You inform the officer you're going to file a grievance. The next 
thing you know, the Counsel Substitute is at your door with a 
major case: Threatening an Officer. The Captain convicts you, with 
no evidence, no prior history or nothing. Any conviction should be 
based on a preponderance of evidence and on factual elements of 
the case. Convictions in cases under circumstances just described 
are illegal. Your conviction was based on the Captain's solidarity 
with his fellow "gray-suits". This miscarriage of justice has been 
going on for so long that even we, sadly, have accepted this as 
the "golden rule", the officer always wins. 

However, this type of action is directly against the rules. See 
Executive Directive 2.01. It's entitled Employee Abuse of Office. 
Read the directive. It states that employees should not abuse the 
privilege of their respective office. And when the Captain does 
this, he violates that rule, and also violates state law, a third 
degree felony. He also violates your 14th Amendment right to due 
process. Normally you can prove this by the disposition he writes, 
"Accusing officer's testimony...." as his reason for guilt 
determination. When you have pleaded not guilty, this type of 
disposition does not justify a conviction, when this happens you 
should file your appeal, with lack of sufficient evidence as your 
grounds. Furthermore you should also file a complaint, separate 
from your appeal, regarding the violation of Executive Directive 
2.01. All of this is being done to you because you don't know the 
policies that govern disciplinary procedures. Once enough people 
begin to expose this violation, it will have to cease. The best 
way to expose this crime is to compile evidence. Your evidence 
will be the elements of your hearing. If they violate policy, your 
case will serve as contributable evidence. 

In summary, I'm hoping this article will inspire many to become 
conscious of, knowledgeable of and most of all, begin to exercise 
your constitutional rights. Otherwise, we shall perish amidst the 
lawless atmosphere created by the oppressor of human dignity and 
spirit.

MIM adds: We thank the author for putting together this useful 
information about filing grievances. However, we do not agree with 
the author's political line that suggests that the rules are 
designed to protect prisoners. There are certainly times when 
prisoners can use internal prison rules, as well as the 
constitution, to win some battles for certain goals. But prisons 
in Amerika will always be cruel and inhumane under capitalism, and 
deliberately so.