by a Virginia prisoner August 2017 permalinkPeace Black brother,
I hope this letter finds you strong and defiant in mind, body, and spirit. I really enjoyed the few times we exchanged ideas about the new Black liberation struggle. I was a little surprised when you told me that you consider yourself a Black revolutionary because most young brothers who gang bang don’t identify themselves as such, and that’s because being one requires opposing and resisting racism and oppression which is a huge burden and responsibility. Others simply don’t understand the concept of a Revolutionary.
To put it simply, a Revolutionary is someone who fights and struggles to change the conditions of oppressed people. A counter-revolutionary is someone who-consciously or unconsciously–fights and struggles against change so as to exacerbate and perpetuate the conditions of oppressed people. A Revolutionary is someone who strives to transform the criminal mentality into a Revolutionary mentality. A counter-revolutionary is someone who maintains, values, and takes delight in the criminal mentality. A Revolutionary seeks to become a part of the solution to what’s plaguing the Black and oppressed communities. A counter-revolutionary seeks to remain a part of the problem of what’s plaguing the Black and oppressed communities. A Revolutionary is someone who utilizes all of his/her strength and energy in trying to liberate Black and oppressed people. A counter-revolutionary is someone who utilizes all of his/her strength and energy in trying to oppress and exploit those already oppressed and exploited by this white supremacist, capitalistic system. A Revolutionary is someone who opposes the Gestapo police who are daily murdering and brutalizing Black and oppressed people. A counter-revolutionary is someone who murders and brutalizes Black and oppressed people who are already being murdered and brutalized by the Gestapo police.
So, young brother, upon examining yourself, and taking the above examples of a Revolutionary into consideration, which category do you truly fall into: a Revolutionary or a counter-revolutionary? Most gang bangers, unfortunately, fall into the category of a counter-revolutionary.
As with most–if not all–Black street gangs, which I prefer to call social clubs, they started out as Revolutionary because the social, political and economic conditions that Black people were subjected to in the ’60s, ’70s, ’80s, and even today, necessitated that they come together and organize to try and resist and change those conditions. But during the ’80s when the CIA began flooding poor Black communities with crack cocaine and guns to finance its illegal counter-revolutionary war against the democratically-elected Sandinista government in Nicaragua, and to further destabilize the poor Black communities making them more susceptible to subjugation and genocide, these social clubs and the oppressed communities they existed in became fractured and divided. Consequently, these social clubs became counter-revolutionary in that they lost sight of their original purpose and began to prey on the very people and neighborhoods they originally organized to defend, protect, and liberate.
One of the best examples of a social club becoming Revolutionary as the result of a radical transformation in the mentality of its membership is the 5,000-strong Slauson gang under the leadership of Alprentice “Bunchy” Carter. During the early ’60s, Bunchy was successful in uniting all of the various social clubs in Los Angeles under his leadership. According to Elder Freeman, a close comrade of Buchy’s, this was the first and only time in history that there was only one unified social club in Los Angeles. To build off of that success and momentum, Bunchy then spearheaded the formation of the Los Angeles Black Panther Party in 1967 which recruited heavily from the ranks of the Slauson gang. Because Bunchy was such a dynamic organizer and a charismatic leader who inspired other "street" brothers and sisters to become Revolutionaries, then FBI Director, J. Edgar Hoover, had Bunchy and his Black Panther comrade, John Huggins, killed in a COINTELPRO created beef between the Los Angeles Black Panther Party and Ron Karenga’s United Slaves Organization on January 17, 1968. ...
MIM(Prisons) adds: The above is an excerpt from an article written by a comrade who goes on to promote an organization that we reviewed in ULK 50.(1) In that article we describe the numerous serious political errors in that organization's line. But we agree with the general strategy that we need to "unify rival social clubs and redirect their aggression and rage away from each other and towards changing and improving the conditions of Black and oppressed people." There are many examples of comrades doing this that have appeared in the pages of Under Lock & Key over the years. Yet as this issue addresses, the problem is far from resolved.
The Black Panthers of the late 1960s still offer the most successful examples of transforming gangsters into revolutionaries. What that indicates is that building a strong vanguard party, with the correct political line, in dialectical relationship to the lumpen masses is the way to repeat their success. Without that, efforts at L.O. unity will be short-lived or will be siphoned off into bourgeois reformism.
Nowhere is the necessity for the societal advancement to communism more apparent than in the realm of disability considerations. No segment of society, imprisoned or otherwise, is in greater need of the guiding communist ethos proclaimed by Marx: "From each according to their ability, to each according to their need." This humynist principle applies to no demographic more than the disabled.
When communist society is realized, the intrinsic worth of each and every persyn and their potential to contribute to society will be realized as well. In return, communist society will reward the disabled population by adequately providing their essentials and rendering all aspects of society open and accessible for their full utilization. In a phrase, communism will respect the disabled persyn's humyn right to a humane existence. We communists strive for the elimination of power structures that allow the oppression of people by people. The disabled population, as well as all peoples that have hystorically been subjugated by the oppressive bourgeois system of capitalism/imperialism, can then work toward the implementation of a truly democratic society.
Considering MIM(Prisons) recognizes only three strands of oppression in the world today (nation, class and gender), able-bodiedness is a cause and consequence of class, and in countries with more leisure-time it is intimately tied up in the gender strand of oppression. This essay intends to analyze disability as it relates to class, gender, and the prison environment.
Disability and Class
In the United $tates the greatest source of persynal wealth is inheritance. It can be said the ability to create and maintain able-bodiedness may be inherited also. For the most part, class station is determined by birth. By virtue of to whom and where a persyn is born, their access, or lack thereof, to material resources is ascribed. The bourgeoisie and labor aristocracy have access to nutrition and healthcare the First World lumpen and international proletariat and peasantry do not. The likelihood of a positive health background renders the labor aristocracy and other bourgeois classes attractive prospects to potential employers, lenders, etc. This allows them to continue to enjoy nutrition and healthcare not common to the lumpen, proletariat, and peasantry.
It would be extremely uncommon to find a First World lumpen, an international proletarian, or a peasant with a membership to a health and fitness club. This privilege is reserved for the bourgeois classes, including the petty-bourgeoisie and its subclass the labor aristocracy. This, of course, further enhances the prospect of maintaining good health, and compounded with employer-supplied healthcare, does act as prophylaxis against the onset of debilitating and degenerative physical ailments.
It would be unreasonable to ignore the possibility that a member of the bourgeoisie might be genetically infirm, or a labor aristocrat debilitated by an accident. But, due to their class position, these classes are better prepared and equipped to minimize the adversities resulting from such an unfortunate occurrence.
Able-bodiedness may also affect upward class mobility. An able-bodied First World lumpen that can find employment might enter the ranks of the labor aristocracy. A blue collar labor aristocrat may be promoted to a managerial position, and so forth. Of course other factors, such as national background, do play a role in one's mobility (or stagnation for that matter), but disability also plays a significant role.
Disability and Gender
Gender only comes to the fore after life's essentials are secured, thereby standing out in relief on its own aside from class/nation. In the First World leisure-time plays a major role in gender analysis. MIM(Prisons) defines "gender" as:
"One of three strands of oppression, the other two being class and nation. Gender can be thought of as socially-defined attributes related to one's sex organs and physiology. Patriarchy has led to the splitting of society into an oppressed (wimmin) and oppressor gender (men).
"Historically reproductive status was very important to gender, but today the dynamics of leisure-time and humyn biological development are the material basis of gender. For example, children are the oppressed gender regardless of genitalia, as they face the bulk of sexual oppression independent of class and national oppression.
"People of biologically superior health-status are better workers, and that's a class thing, but if they have leisure-time, they are also better sexually privileged. We might think of models or prostitutes, but professional athletes of any kind also walk this fine line. ... Older and disabled people as well as the very sick are at a disadvantage, not just at work but in leisure-time. ..." - MIM(Prisons) Glossary
This system of gender oppression is commonly referred to as "patriarchy," which MIM(Prisons) defines as:
"the manifestation and institutionalization of male dominance over wimmin and children in the family and the extension of male dominance over wimmin in society in general; it implies that men hold power in all the important institutions of society and that wimmin are deprived of access to such power."(1)
Professor bell hooks's description of patriarchy in eir work The Will to Change: Men, Masculinity, and Love has also contributed to this author's understanding of gender oppression:
"Patriarchy is a political-social system that insists that males are inherently dominating, superior to everything and everyone deemed weak, especially females, and endowed with the right to dominate and rule over the weak and to maintain that dominance through various forms of psychological terrorism and violence."(2)
Professor hooks's definition of patriarchy not only recognizes terrorism as a patriarchal mechanism, but that patriarchal forces do not intend only to oppress, dominate, and subjugate females or even just females and children, but patriarchy's pathology is to hold down anything it regards as weaker than itself. Patriarchy is a bully.
Children are one of the most stigmatized and oppressed groups of people in the world. Patriarchal society considers children physically disabled due to their undeveloped bodies and therefore susceptible to patriarchal oppression — regardless of the biology of the child. This firmly places children in the gender oppressed stratum. Due to disabled people's diminished bodies (and/or cognizance), disabled people can be categorized similar to children subjected to patriarchy, ergo, disability falls into the gender oppression stratum as well as class.
Patriarchy and Prisons
U.$. prisons are, from top to bottom, patriarchal structures. Prisons are institutions where the police, the judiciary, and militarization have crystalized as paternalistic enforcer of bureaucracies of patriarchy; prisons, the system of political, social, cultural and economic restraint and control, are fundamentally patriarchal institutions implemented to enforce the status quo — including patriarchal domination. Disabled prisoners in Texas have long been labeled "broke dicks," illustrative of their "less-than-a-man" status in the prison pecking order.
There are laws mandating disabled prisoners not be precluded from recreational activities, or any other prison activity for that matter. Yet enforcement of these laws are prohibitively difficult for disabled prisoners, especially prisoners with vision or hearing disabilities, or cognitive impairments. The disabled have few advocates in bourgeois society; they have virtually none in prison.
The likelihood that prison officials discriminate against and abuse disabled prisoners is readily apparent. What is most disheartening is able-bodied prisoners are often the perpetrators of mistreatment against disabled prisoners, frequently at the behest of prison administrators so as to procure favorable treatment. In fact, the most telling aspect of the conditions of confinement imposed on disabled prisoners is the abuse of the disabled prisoners at the hands of able-bodied prisoners. The able-bodied prisoners are quick to manhandle and overrun disabled prisoners in obtaining essential prison services which are commonly inadequate and limited. When queued up for meals, showers, commissary, etc. the able-bodied prisoners will shove and elbow aside disabled prisoners; will threaten to assult disabled prisoners; and have in fact assaulted disabled prisoners should they complain or protest being accosted in such a fashion. All this invariably with the knowledge and/or before the very eyes of prison administrators and personnel.
It is far too common for the victims of sexual harassment and assault in prisons to be gay, transgendered, and/or disabled. Whether the perpetrator be prison officials or fellow prisoners, this practice is condoned by the culture of patriarchy and the hyper-masculine prison environment.
In the Prison Justice League's (PJL) report to the U.$. Department of Justice titled "Cruel and Unusual Punishment: The Use of Excessive Force at Estelle Unit" the PJL outlined the routine and systematic abuse of disabled prisoners by prison personnel at the Texas Department of Criminal Justice (TDCJ) Regional Medical Facility for the Southern Region, Estelle Unit.(3) Prisoners assigned to the Estelle Unit per their disabilities are regularly and habitually denied medical treatment for their disabilities, ergo oftentimes exacerbating the causes and effects of the disabilities which brought them to Estelle initially; are denied auxiliary aids so as to accommodate their disabilities as required by law; are physically assaulted by prison administrators and staff, or their inmate henchmen; and with egregious frequency are murdered at the hands of state officials.
Since the PJL's report and subsequent Department of Justice investigation, there has been a bit of a detente in the abuse visited upon disabled Estelle prisoners by prison personnel. But the pigz are barely restrained. Threats of physical violence directed at disabled prisoners are still a regular daily occurrence, and prison personnel assaults on disabled prisoners are still far too common.
Another recent example of the persistent difficulties disabled prisoners face, even with the courts on their side, can be seen in the American Civil Liberties Union's (ACLU) recent settlement negotiated with the Montana Department of Corrections (MDC), after it neglected to fulfill Americans with Disabilities Act (ADA) requirements from a 1995 settlement, Langford v. Bullock. In 2005, the ADA requirements were still not met, and despite the Circuit Court's order requiring Montana to comply with the 1995 settlement, it is not until 2017, and much advocacy later, that negotiations are being finalized between the ACLU and MDC. We can't dismantle systems of gender oppression one quarter-century-long lawsuit at a time. That's why MIM(Prisons) advocates for a complete overthrow of patriarchal capitalism-imperialism as soon as possible.
Another patriarchal aspect to be observed in prisons is ageism. As children are included in the gender-oppressed stratum, so should the aged. As the able-bodied prisoners' ability to work subsides due to age in the First World, especially in the United $tates where the welfare state is minuscule and the social safety net set very low, the propensity for a once able-bodied persyn to be relegated to the ranks of the lumpen is intensified. As the once able-bodied persyn becomes aged and disabled, their physical, as well as mental, health becomes more and more jeopardized, accelerating the degeneration of existing disabilities as well as increasing the likelihood of creating the onset of new ones (e.g. the First World lumpen are notorious for developing diabetes due to poor diet and lifestyle issues).
Disability as a Means of Castration
Holding people in locked cages is an acute form of social control. Solitary confinement creates long-lasting psychological damage. And prison conditions in general are designed (by omission) to create long-lasting physical damage to oppressed populations. Prisons are a tool of social control, and exacerbating/creating disabilities is a way prisons carry this through in a long-term and multi-generational fashion.
Prisoners, who are a majority lumpen population, are likely to already have unmet medical needs before entering prison, as described above in the section on class. Then when in prison, these medical needs are exacerbated because of the bad environment (toxic water, exposed asbestos, run down facilities, etc.); brutality from guards and fellow prisoners; poor medical care including untreated physical traumas, improper timing for medications (see article on diabetes), and just straight up neglect.
Mumia Abu-Jamal's battle to receive treatment for hepatitis C, which ey contracted from a tainted blood transfusion ey received after being shot by police in 1981, is a case in point. Mumia belongs to an oppressed nation, is conscious of this oppression, has fought against this oppression, and thus is last on the priority list for who the state of Pennsylvania will give resources to. And medical care under capitalism is sold to the highest bidder, with new drugs which are 90% effective in curing hepatitis C coming with a price tag of $1,000 per day. In a communist society these life-saving drugs will be free to all who need them.
Disability in the Anti-Imperialist Movement
The fact that people with disabilities will be treated better after we take down capitalism is obvious. Our stance on discrimination against people with disabilities in our society today is obvious. What is less obvious is the question of how we can incorporate people with disabilities into the anti-imperialist movement today, while we are so small and relatively weak compared to the enemy that surrounds us. This is an ongoing question for revolutionaries, who are always pushing themselves to be stronger, better, and more productive. After all, there is an urgency to our work.
Our militancy tends to be inherently ableist. With all the distractions and requirements of living in this bourgeois society, we have precious little time to devote to revolutionary work. We are always on the lookout for things and people that are holding us back and wasting our time, and we work diligently to weed these things and people from our lives and movement. Often when people aren't productive enough, due to mental or physical consequences of capitalism and national oppression, we can't do anything to help them — especially through the mail. No matter how sympathetic people are to our politics, and how much they want to contribute, we just don't have the resources to provide care that would help these folks give more to overthrowing imperialism. Often times all we can do is use these anecdotes to add fuel to our fire.
Disabilities amongst oppressed people are intentionally created by the state, and a natural consequence of capitalism. If we don't take any time to work with and around our allies' disabilities, then we are excluding a population of people who, like the introduction says above, are in the greatest need of a shift toward communism. We aim to have independent institutions of the oppressed which can help people overcome some of these barriers to political work. At this time, however, the state is doing more to weaken our movement in this regard than we are able to do to strengthen it.
[Of note, the primary author of this article has devoted eir life to revolutionary organizing in spite of being imprisoned and with multiple physical disabilities. Even though it is extremely difficult to contribute, it is possible!]
Where did I come from you ask?
I came from a great civilization
A people who knew what day it was
While the rest of the world did not.
I come from a people who knew
Where the Earth fit in relation to the universe
While the rest of the world knew not.
I come from a civilization
Of great art and rich culture.
A people advanced in mathematics and building structures
Which were symmetrical to the sun.
I come from a people that fought
For its independence
From three foreign nations
In one century alone!
I continue to survive this bloody annexation
And to this day
I maintain my identity
Against pressure to assimilate.
I come from a civilization
Which has been here since the beginning of time.
I am heir to traditions of Cuauhtemoc,
Benito Juarez, and Emiliano Zapata.
I am indigenous to this land
And now I hear these ignorant voices
Telling me to go back where "I" come from?
"I" am from here!
My civilization was founded on the very earth we stand on!
You and your people go back to where you come from!
You have both parents. I have one.
We are both better off than those who have none.
You were given everything. I stayed on my feet.
We both had it better than those raised in the streets.
What about the one that just needed some new kicks?
I don't condone stealing, but I don't judge him one bit.
And you say you know what it's like.
Have you ever been pulled over and feared for your life?
Covered the wound of a person stabbed with a knife?
Gunshots ring past you filling you with fright?
Or decades and decades of fighting for your rights?
And you say you know what it's like.
You have four siblings. With mine I had fun.
My friend's whole family was mowed down by the gun.
You inherited love. There's nothing wrong with that.
I just want you to see that you've never been where we're at.
And you say you know what it's like.
You ever been homeless living under a bridge?
You ever been to prison with the thought of losing your kids?
What about prison in general for something you didn't do?
Oh wait, nevermind. Because you have always been you.
Well I've always been me. Is it money that I lack?
If Amerika's mostly white why are the prisons mostly Black?
You went to a great school. I went to one in the hood.
Despite the school's limitations, I think I turned out really good.
You had a good upbringing. Many envy that.
I just want you to see that you've never been where we're at.
And you say you know what it's like.
When you lock us away, it's usually for years.
You say it's justice, but you just create more tears.
Our families are victims too, of mass incarceration.
Your jury isn't our peers. They convict without hesitation.
You think you do us a favor when we're forced to take a deal.
It's still too much time for a crime that's not real.
You've been to court, too, but you sat where the public sat.
That still doesn't show you that you've been where we're at.
And you say you know what it's like.
When cops kill us, we must have did something bad.
Now we're taking back something we forgot we had.
Our love for each other will bring you to your knees.
And show you what it feels like with your hands up and you can't breathe.
Your lack of care for our lives will never be without fuss.
My people can see that it's not justice, it's just us.
Even some of your people join in our strides.
Because they see the truth of your bigotry and lies.
Times are steady changing, please remember that.
Even on your worst day you've never been where we're at.
I'm writing this letter to update you on my efforts and the outcome of the grievance petition. I filed my petition with the Department of Corrections Commissioner, the Alaska Lt. Governor and to the Department of Justice (DOJ). A few days later another captive and I were transferred to administrative segregation at Anchorage Correctional Complex – East, to the same module where captives who have violated DOC rules are housed. We have been told we are not being punished, however we live under the same punitive conditions.
A few days after our transfer I received a notice from the warden (she calls herself a "superintendent" but she is a warden) telling me that the petition I sent to the Lt. Gov. was forwarded to her to address. She denies all of my claims and tells me that if I still have issues that "the grievance procedure has a specific process to follow, including an appeal process, and the right to seek redress in superior court if the department does not rule in your favor." She then states that the Standards Sgt. is backlogged with grievances and asks for my patience. This letter was coincidentally dated the day before our transfer.
During our transfer our property was seized, was deemed excess and was denied issuance of even the most essential hygiene items. I have filed multiple grievances about this, but the tactic now seems to be to ignore all of my grievances. I have unacknowledged grievances that are over 3 months since filed. The DOC policy states it has 15 working days to investigate and respond.
Now they are retaliating even more by seizing my legal mail, reading and mutilating it. They use excessive force when outside cell by over-ratcheting handcuffs and ensuring we are cuffed whenever outside our cells. If our cell is not shaken down daily, it is every other day. We have been strip searched (unwarranted) at least 3 times. When we are given new clothing to change out, a gay guard glowers at our nakedness. Books that have been sent to me by books to prisoners orgs have been denied for absurd reasons like "contains book" or "unknown substance on book." More retaliatory measures than these have been imposed on me, however it has not stopped me. I still write letters to the Commissioner (who forwards them to the warden I am complaining about), the Lt. Governor, the Governor and any other state official that may listen. Including the ACLU. The ACLU has never responded to any of my letters.
Since being transferred to segregation it is difficult to disperse the grievance petition which I am sure was the reason for my transfer. I did however get it out to close to 60 or 70 people and I believe they will pass it on as well. I have also mailed a few copies to people I know in other institutions. These at first were censored. The reason given: "typed." I eventually had an officer mail them out (after several attempts).
I am not sure what else they can to do me at this point but I am not going to stop fighting.
MIM(Prisons) responds: This comrade's story is a good example of why the grievance campaign was initiated. Prisoners across the country face this same problem with the grievance system of getting no response, or bullshit responses, and never getting grievances seriously addressed. The petition, which now exists for many states, is a simple demand that our grievances be addressed.
Of course we don't actually expect this petition will lead to victory over a grievance system that is purposefully set up to deny prisoners' attempts to demand their rights. But people like this writer are using the petition as an organizing tool; getting others involved in the fight and waking them up to their oppression and the importance of their role in fighting back. We have to combine this work with education about the criminal injustice system as a tool of social control under imperialism so that we don't mislead people into thinking petitioning will fix the entire system. In this way we can take on these smaller battles in the context of the larger struggle to build unity against imperialism.
Send us a self-addressed stamped envelope for a copy of the grievance petition for your state, or a generic petition you can customize if one doesn't already exist.
After reading The New Jim Crow: Mass incarceration in the age of colorblindness, by Professor Michelle Alexander, one can see the dynamics of how the political economy shaped the prison system by taking away the jobs which would in fact increase the crime rate. It's been reported over time that the CIA was the biggest drug trafficker in the country and flooded the inner cities across Amerikkka, which only made room for one thing — distribution by the inhabitants of the inner city. Due to this new social phenomenon, lawmakers had a field day with funding SWAT teams to serve narcotic warrants, and perform paramilitary drug raids throughout the United $tates.
The Economic Recovery Act of 2009 included more than $2 billion in new Byrne funding and an additional $600 million to increase state and local law enforcement across the country. [The Edward Byrne Memorial Justice Assistance Grant program is the primary provider of federal criminal justice funding to state and local jurisdictions. - Editor] Multi-agency drug task forces receive their finances from the federal government to help them increase the prison population, while the lawmakers come together to get Congress to pass laws that will keep inner city youths in prison for mandatory minimums. The 3-strikes-you're-out law orchestrated by Bill Clinton allowed all the newly-built prisons (California built new prisons from the 1980s to 2000) to stay full, and also allowed other states to use this same sentencing method.
Before coming to prison, I along with others from the inner city had no idea about the political landscape that jump started our oppression. What shaped our views was learning how to apply a concrete analysis of the concrete conditions, and how to apply this philosophy within our culture. This concrete analysis is called dialectical materialism, and once used correctly we were able to better understand our situation and how to change our conditions. Through the study of our New Afrikan history we realize our struggle was always due to our resisting oppression. Oppression from the same class of people who first enslaved us once arriving on these shore, via a capitalist/imperialist system, established through military conquest, that controls you economically.
We New Afrikans have become political prisoners by challenging these imperialists' control over us through their oppression and have established a social, cultural, economic, ideological, religious, military, and personal interaction between us as a group of people in a society. Our politics encompasses the totality of all human activity and relationships.
I am on the Tier II Program in Georgia. I am confined to an isolation cell 24 hours of every day. I'm not allowed outside my cell for any reason, other than to shower three times a week. I'm not allowed ANY phone calls, visits, photos (of either friends or family), nor am i — unlike other prisoners — allowed to posess the recently distributed electronic communication device.
My entire waking moment is expended ONLY on either legal or political endeavors (this includes assisting others in such endeavors), even if it simply entails me devouring some relevant item of legal or political literature. In light of the intensity of my torture and the urgency of my struggle — our struggle — nothing else is relevant enough to warrant my attention or time.
The enemy succeeded in depersonalizing me — in dehumanizing me — in emotionally and psychologically MURDERING me! — a long time ago, before i even became aware of the fact of my systematic, gradual death. But as a result of my "death" i've grown to be as militant (and stoical) as they come. My creed is simple: "If it doesn't concern the political, it doesn't concern me." Frantz Fanon in his Wretched of the Earth stated that "any torture deeply dislocates, as might be expected, the personality of the tortured." I cannot state, with certainty, that i would have — or that i even could have — grasped the gist of Fanon's statement were it not for my own continual involuntary subjection to torture.
But to return from my digression, my lawsuit concerning the Tier II Program raises a number of colossal implications. For one, my case is the leading case attacking the inadequate due process procedures attendent upon both a prisoner's initial and continued assignment to the Tier II Program, as well as contesting, in the so-called civil and human rights context, the totality of the Tier II program confinement conditions. What this means is that my case is inevitably going to set the precedent (the criterion) by which all other subsequent Tier II cases are to be handled in the judiciary.
Moreover, with regard to my motion requesting to be released from the Tier II Program, that issue is currently pending in the court of appeals for the Eleventh Circuit. If i am successful at the appellate level — and it looks as though i will be — the favorable ruling would provide prisoners with a vehicle through which to remedy "unlawful" or otherwise erroneous assignments to the Tier II Program (and ALL assignments of prisoners to the Tier II Program are arbitrary and intentionally carried out by prisoncrats in derogation of formal Departmental policy).
But most importantly, my case — because it is the test case — is going to settle (for better or worse) important questions with respect to both the civil and human "rights" of prisoners nationwide. Such is the significance of my case. But even a string of "bad" decisions would still be "good" for the anti-imperialist movement, because it would only further "expose the fallacies of the reactionaries"(Mao), here, the futility of the Amerikkkan court system.
In any event, i will be forwarding the Prisoners' Legal Clinic some relevant court documents from my case within the next week or so, if only to keep you abreast of developments. Actually, the trial court, to its credit, has already condemned the confinement conditions of Tier II as "so egregious that a constitutional right was clearly violated."(Nolley v. Nelson, No. 5:15-cv-75-CAR(M.D.Ga.), Doc. 50, p. 29.
Title II The Americans with Disabilities Act (ADA), codified as Title 42 of the United States Code, Section 12131 (42 USC §12131, herein after §12131), applies to "any State or local government, any department, agency, special purpose district, or other instrumentality of a State or States or local government..." (§12131[A][B]). The ADA defines a "qualified individual with a disability [as] an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal or architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in program or activities provided by a public entity."(§12131).
Disabled prisoners in state facilities come under the auspices of ADA provisions.
"[S]tate prisons fall squarely within definition in 42 USCS §12131(1)(B), of 'public entity' subject to Title II, (2) text of ADA provides no basis for distinguishing recreational activities, medical services, and educational and vocational programs provided to prison inmates from 'services, programs, or activities' provided by other public entities ...[.] [T]itle II's definition of 'qualified individual with disability' [...] which refers to 'disability' requirements and 'participation' in programs, does not exclude prisoners."(Pennsylvania Department of Corrections v. Yeskey, 118 S.Ct. 1952)
In the landmark case Ball v. LeBlanc, 792 F.3d 584, the U.S. Court of Appeals for the 5th Circuit held: Under the ADA, Louisiana state prisoners on Angola's death row were to be considered disabled if:
"[They have] 'a physical or mental impairment that substantially limits one or more major life activities.' (42 U.S.C. § 12102[A]). The statute defines a major life activity in two ways. First, major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, thinking, communicating, and working.
"Second, a major life activity includes 'the operation of a major bodily function.' Such functions include, but are not limited to: the immune system, normal cell growth, digestive, bowel, bladder, neurological, endocrine, and reproductive functions. The prisoners can prove themselves disabled if their ailments substantially limit either a major life activity or the operation of a major bodily function."(42 U.S.C. § 12102 [A][B])
The ADA requires prison officials to reasonably accommodate disabled prisoners in regard to all activities afforded able-bodied prisoners. "[D]eliberate refusal of prison officials to accommodate inmate's disability-related needs ([in] virtually all [ ] prison programs) constituted exclusion from participation in or denial of benefits of prison services, programs, or activities. '[P]ublic entity' under 42 USCS §12131(1) includes prisons."(United States v. Georgia, 126 S.Ct. 877; Loye v. County of Dakota, 625 F.3d 494)
Though the ADA bestows on disabled state prisoners the right to reasonably participate in all prison activities, probably of paramount importance to disabled prisoners is participation in requisite programs that must be attended per consideration for early release from prison to limited liberty on parole. The ADA ensures disabled prisoners access to these activities as well.(United States v. Georgia, supra.; Yeskey, supra.; Jaros v. Illinois Department of Corrections, 684 F.3d 667; Gorman v. Bartch, 152 F.3d 907; Paulone v. City of Frederick, 787 F.2d 360; Raines v. Florida, 983 F. Supp. 1362)
An organizational tactic that disabled prisoners might employ in combating discriminatory exclusion from prison programs, activities, and/or services, could be to pursue litigation as a class, or group, of plaintiffs pursuant to Federal Rule of Civil Procedure (FRCP) Rule #23. To identify as a class, disabled prisoners must establish "numerosity, commonality, and typicality."(Kerrigan v. Philadelphia Board of Elections, 248 FRD 470; Marcus v. Department of Revenue, 206 FRD 509)
In short, a contingent of disabled prisoners must convince the Federal court there is a significant number of "similarly situated" prisoners being denied their rights and entitlements guaranteed by the ADA, thereby identifying a class the court can certify as such.(Armstrong v. Schwarzenegger, 261 FRD 173) Once a class has been certified, any injunctive relief enforcing the ADA encompasses all prisoners identified as the class of prisoner plaintiffs.(Schwarzenegger, supra; Benjamin v. Department of Public Welfare, 807 F.Supp.2d 201)
Monetary damage awards can be obtained if the state actors are deliberately indifferent to prisoners' disability or if violations of the ADA are intentional.(United States v. Georgia, supra; Tennessee v. Lane, 124 S.Ct. 1978; Panzardi-Santiago v. University of Puerto Rico, 200 F.Supp.2d 1).
The ADA enjoins prison systems to provide disabled prisoners auxiliary or adaptive aid devices ensuring disabled prisoners are reasonably able to participate in prison programs, activities, and/or services. (Robertson v. Las Animas County Sheriff's Department, 500 F.3d 1185). This means if you are disabled or impaired as recognized per the provisions of the ADA, the state must provide you with implements and apparatus so as to assist you in participating in common daily and required programmatic activities.
In sum, to prevail on an ADA violation claim, a disabled state prisoner would submit to a Federal district court with jurisdiction a civil rights violation complaint pursuant to 42 USC §1983 (United States v. Georgia, supra) (a §1983 form can be obtained from the clerk in the district in which the civil suit is to be filed) citing §12131 as statutory provision authorizing the claim. In the complaint a prospective plaintiff must show they are a qualified person with a disability, they were excluded from participation in or denied benefits of a prison system's programs, activities, and/or services, and the exclusion and/or denial of benefits was due to the prisoner's disabilities.(United States v. Georgia, supra; Panzardi-Santiago, supra; Constantino v. Madden, 16 FLW Fed D 321)
Prison administrators are to be trained, and to train or to have trained prison officials and personnel that are to supervise and have contact with disabled prisoners.(Gorman, supra) Moreover, it is important disabled prisoners be aware non-medical prison officials can in no way supersede any medical directive affecting a prisoner's disability or accommodation thereof. (Chisolm v. McManimon, 275 F.3d 328; Beckford v. Irvin, 49 F. Supp. 2d 170; Saunders v. Horn, 959 F. Supp. 689; Arnold on Behalf of H.B. v. Lewis, 803 F. Supp. 246)
The above is a very brief and truncated overview of the ADA as it applies to state prisoners and should not be construed as a comprehensive examination of disability law as it pertains to prisoners. This article is no more than a primer meant to initiate disabled prisoners with their legal rights and remedies. If a disabled prisoner is experiencing abuse and discrimination at the hands of prison officials, the disabled prisoner should take it upon themselves to research pertinent precedents and authorities necessary in remedying the situation and pursue those via the various avenues of relief.
The U.S. Department of Justice provides a free 211 page booklet entitled "ADA Title II Regulations: Non-discrimination on the Basis of Disability in State and Local Government Services." The booklet can be had in large print, audiotape, Braille, and DVD. The booklet can also be provided in Cambodian, Chinese, Hmong, Japanese, Korean, Laotian, Spanish, Tagalog and Vietnamese. Or it could be, that is until the Jingoist xenophobe Trump took the imperialist helm. The DOJ can be contacted at:
Civil Rights Division
Disability Rights Sec.
950 Pennsylvania Ave, NW
Washington, DC 20530
There are a number of non-governmental organizations that assist disabled prisoners on a pro bono basis. The DOJ can provide contact information for disability rights advocates in your area.
Finally, the law library at your facility may have available for review the annotated version of §12131. This annotated edition of Title II of the ADA provides synoptic court rulings of the rights afforded disabled prisoners.
Very important is to document and keep records of all acts of disability discrimination and violations of the ADA — incidents, names, dates, witnesses, etc. This can best be accomplished via the administrative grievance procedure at your prison, while at the same time executing the required exhaustion of administrative remedies prior to filing suit.
In closing, it is my sincere desire that this overview proves to be of effective utility to those disabled prisoners facing the barbarous conditions of existence imposed on them by the enforcers of the carceral state.
To any able-bodied prisoners that may read this brief overview, I would remind you, an injury to one is an injury to all!
I'm writing from Arizona solitary confinement, aka SMU2, to let others know what is going on with the corrupt medical grievance process. Recently a memo was passed out that all medical grievances are now to be treated differently and go through Corizon staff, which is the contracted company that provides health treatment to Arizona Department of Corrections (ADC). This process consists of only 2 steps, which are an "informal resolution complaint" and then the "grievance." Both are to go through the Facility Health Administrator (FHA), which allows for no transparency nor checks and balances. Since this change in the grievance procedure, not one "informal resolution complaint" form has been replied to in accordance to ADC's Department Order #802 "Inmate Grievance System", that is set up to oversee this process.
So after the FHA does not respond, one has to move on to the grievance per this policy. The grievances are not delivered back for 1 to 2 months, and this only due to me writing to a CCO3 (counselor) to inquire about replies. The replies are pretty generic and consist of responses like "your complaint has been forwarded to..." "your complaint is substantiated..." etc. and that the grievance is resolved. Yet nothing is done and there is no type of appeal to this, so no other remedy can be sought as the process is exhausted here.
Before, the process wasn't much better but it would go through 4 steps as a way to oversee this process. I have sought remedy through this process on many occasions, so many as a matter of fact that I have actually had 2 meetings with the FHA. At the latest one, she personally resolved a grievance by renewing one of my prescriptions. Yet these prescriptions were not renewed and instead were allowed to expire without any type of tapering or alternative treatment in place. So I am at a loss as to what my next step is, as even when a grievance is granted it is not followed through on.
The American Civil Liberties Union (ACLU) and a couple of other law firms actually have a lawsuit on behalf of ADC prisoners named Parsons v. Ryan which is not even being adhered to, as the ACLU recently filed a motion showing that ADC was not in compliance with this lawsuit. Being that the suit is not for monetary compensation to the actual plaintiffs, being us, the ACLU gets their so-called expenses paid as well as the fine, which in this last case was a cool $2 million.
ADC would rather pay the fine than provide adequate health care as it is much cheaper to do so, and they will continue to do so because it will save them a ton of money! I have written the ACLU in Washington and the Arizona ACLU, as well as the Prison Law Office out of San Quentin who are the attorneys in charge of the lawsuit and all that they do is forward my informal grievances and HNRs to each other as well as shoot me one another's addresses for me to contact them. The replies are to grieve it, which I have, and the grievances were substantiated and granted yet I am here in my little cell without treatment as I write these very words.
Any ideas of what to do next would be greatly appreciated! I let the FHA know that this type of deliberate indifference and derelict of duty would not be allowed in any other type of medical treatment setting. Therefore why is it allowed here in SMU2? If anyone has suggestions on how to proceed please contact MIM(Prisons) for me, thank you.
MIM(Prisons) responds: This writer provides yet another good example of the failure of prison grievance systems as well as the courts. In this case Arizona has set up a system that just wastes prisoners' time while offering no accountability, even when grievances and Court Orders are granted.
It is for situations like this that the campaign to demand our grievances be addressed was initiated. We have a petition pertaining to Arizona State Prison that could be modified for this battle in solitary confinement. While these petitions don't often win the battles for us immediately, they help us build support by spreading the campaign to others and giving them specific actions they can take. At the same time we're all too well aware that prisons don't have an interest in addressing grievances. Anything that costs more money or requires more services, or that forces COs to treat prisoners with respect and dignity, is going to be a hard battle. The criminal injustice system is set up to do the opposite, and so we will have to fight for each right. Write to us to get a copy of the Arizona petition to modify for this battle.
While grievances and courts fail, we learn the same lesson over and over again — that legal battles will not get us where we need to be, to a world without oppression. Court cases and grievance campaigns sometimes win some victories, that is true. But for long-lasting change we really need to organize with each other, build unity, educate and struggle together to force change. We hope this correspondent will take this failure of the courts as inspiration to try a different method of resolution.