Under Lock & Key

Above is a response from the Prison Law Office (PLO) to the petition for proper handling of grievances in California. Without addressing the systemic reasons for oppression, the PLO's efforts to fight against parole denials and revocations is futile on the group, and especially international, level.

The PLO "represent[s ] all California prisoners who have 'a major mental illness' under the class action lawsuit known as the Coleman case." In effect, Coleman v. Schwarzenegger led to the conclusion that "severe" overcrowding of prisons is the reason why most prisoners have no access to mental health care, and nominal efforts are being made to reduce the prison population. However, we know that imperialism, capitalism and national oppression are why mental health resources are inadequate within CDCR, and why prisons in Amerika lead to mental health issues in the first place. Prisons in China under Mao led to greater social awareness and responsibility, not mental illness.(1)

We challenge single-issue organizations to broaden their perspective. Parole assistance may lead to "freedom" for hundreds or even a few thousand individuals. But if we are organizing as internationalists, we can affect more people in a more profound way, and for a longer period of time. We do this by building communism. The least the PLO can do is recognize the importance of the grievance campaign and join it.

The days of finding relief via the "class action" lawsuit are over. The Prison Litigation Reform Act (PLRA) and countless other rulings have essentially castrated the "class action." The worst part is, under certain protocols, if a class action loses, every person in the "suspect class" is prohibited from filing in the future on similar grounds!

Only a fascist or a moron will file "class actions" because they have been eliminated. The proper methodology is to bury the bastards with litigation from individual litigants. Whatever the issue, rather than "joining forces" officially, we need to coordinate from the periphery. If 20 individuals file relatively similar actions in the same Court, the Court will occasionally attempt to coerce them into becoming a de facto "class." That can be refused by a litigant who wishes to proceed "as a class of one." Failure in this case does not affect other individual litigants. The decision might be harmful, but it cannot completely deflate the opportunity to seek "redress of grievances," as are protected by the First and Fourteenth Amendments.

The only way to fight in a corrupted system is to use those remaining rules that ostensibly still exist and turn them against the persecuting agencies. The only way to win requires seriously thinking outside the box; but doing it with a rationale they're required to accept. If they try and blow smoke up your ass, take it to the next level. To borrow from Churchill's address done at Princeton: "Never give in. Never give in. Never give in..." It doesn't need to be eloquent: it just needs to be.

MIM(Prisons) adds: The PLRA is one way that prisoners are legally stripped of their rights as u.$. citizens. During the first wave of the Prison Movement, class actions were a crucial tool for prisoner activists to fight battles on behalf of all prisoners. The state didn't like that. We wouldn't go as far as this comrade to say that class actions are completely obsolete, but they are now extremely complex and should be brought by a lawyer. Since most of our comrades cannot afford lawyers, class action suits are functionally useless to us.

This comrade is correct that despite the difficulties we face today, we must keep finding ways to fight legal battles until they take all such rights away. And there are still ways for us to work together and work strategically. Issue 13 of ULK will focus on how to do this, so comrades should write in with their ideas.

The State of California faced a "two-pronged" problem this year with regards to housing "alien" prisoners. The first came as a result of the economic calamity which eliminated most forms of tax receipts, which in turn finance various State programs. Secondly, the California Department of Corrections and Rehabilitation (CDCR), has been ordered to reduce the massive number of prisoners held (often more than twice design capacity).

Unfortunately, any perceived relief will be looked upon not as "safeguarding human rights," but being "soft on crime." Regardless of political party affiliation, if a legislator can be shown as being remotely compassionate to criminals, his life in politics is in dire straits, almost certainly at an end. This creates a rather hypocritical dogmatism between being "financial stewards," and "tortuous demagogues." So, the "powers-that-be," have chosen a rather stealth-like hypocrisy that appears sound to the tax-payers, and helps continue the ethnocentrism of the post-9/11 era: Deportation of Aliens Who Completed Their Prison Terms.

Consider this for a moment:

If "Jose Garcia" [arbitrary name] is arrested and convicted of any criminal offense, he will face deportation only after serving his time in an American prison. In some cases, it makes no difference, because the "Alien" is serving an Indeterminate Sentence (Life; Life Without Parole; Death; etc...), and will not be released. It does not matter whether his "papers were in order," or if he waded the Rio Grande from Ciudad Juarez, he still faces deportation. In some rare cases, the prisoner will not be deported because he faces death in the receiving country (Libya, Syria, Iran, China, etc...), but this is also open to "political interpretation." An Iraqi citizen may be sent "home," because Saddam Hussein is no longer in power, and there is a "legitimate government in Iraq" (Bush #43's words, not mine) and the threat of torture has been lessened (compared to what?). So, "Jose", serves his term and is hustled to an Immigration and Customs Enforcement (ICE) gulag, pending decision to deport.

The insidious nature of this legislation/Court Order, is that it neither provides relief for the refugee who has fled his country's economic abyss, or provide "security" for prisoners who are existing in nightmarish dungeons that lack essential medical and mental health services. Meanwhile, the state legislators continue to support prisons in their districts for their own profit and for jobs for their constituencies.

State courts are simply an extension of their political friends hypocritical policies, and generally refuse to accept reality as a guiding principle. The Federal Courts, while not without their flaws, are more likely to answer the complaints of the down-trodden with something similar to justice. The problem with the Federal Court is that they drag on forever and create such insurmountable complexities that most people are incapable of succeeding in their quest for "justice." The recent cases noted before (Plata v. Schwarzenegger, and Coleman v. Schwarzenegger) have been active for eight years and eighteen years, respectively. The recent court order was for the reduction of the prison population by 40,000 over the next two years. On the surface it seems like a victory for the Prison Abolition Movement, but the State has twisted it around and essentially no relief will be seen. Instead of a legitimate reduction in sentences, or other mannerism which might have a perceived legitimacy, the CDCR has announced that they will start sending people to ICE more rapidly, and will shuffle papers and falsify reports until the State implodes.

I personally know a man who has lived in this country for most his life, but due to his extensive criminal record, may be deported to Iraq (he's Armenian). ICE is kind of in a "Catch-22": Politically, to send someone back to Iraq would show "faith in the new Iraqi government"; but to refrain, would keep a "Career criminal" on American streets. Do they recognize the absolute surreal failure of the American "gulag archipelago?" No. They proclaim a lost war won, and sacrifice someone who might well be killed upon arrival, as a sign of "success" in Middle-East policy.

Needless to say, the "California Dream" is now excluding non-naturalized foreigners, and any attempt at succeeding without the appropriate documentation is hazardous to your "Freedom."

Handling Deportation Threats

When asked by foreigner prisoners, on how to proceed, I examine several factors before making any recommendation:

1. Where are you from? (What is the political climate there?)
2. What offense brought you to prison? (Murder, rape, etc. are hard to defend. Petty possession, shop-lifting, etc. are easier to bring "mitigating circumstances" into the question.)
3. What kind of skills do you bring to society? (A dope fiend with no education will find little sympathy, where an engineer or a doctor will be of some interest.)
4. What political affiliations do you have? (The "Red Scare" still exists, as does massive disinformation about anarchism. If you are perceived as a possible threat, you will be neutralized.)
5. Finally, are there any advocacy groups who specialize with your country, region, political group, religion, et al.? (Being from Mexico will only help you if you can convince your captors that you face death if returned to Mexico (drug war). Guatemala and Honduras have significant political strife that can be used to prevent deportation back there. Other places have different circumstances that should be publicized by the U.S. State Dept. or various news agencies. Reach out early for help and publicity.)

Seek out copies of Prison Legal News and the addresses of whatever embassy or consulate is pertinent to your citizenship. Most nations require "detaining nations" to notify them of having possession of one of their citizens (see: "Consular Notification and Access," U.S. State Department). Within this guide, are the "basic instructions" of political rights, printed in 13 languages, along with the telephone numbers of most consulates and embassies. In a few circumstances where the United States does not have "Diplomatic Relations" with a country, you have access to either the United Nations Delegation or a Neutral Country (Sweden, Switzerland, etc.), who will contact your nation of origin (if you so wish).

The key point for anyone facing deportation to remember is that the political climate of the United States is precarious at best, and if you are facing deportation to a reasonably stable area (no warfare, drug gangs, massive infectious disease issues, kidnapping, rape, etc.), and you are not facing extra detention as a result of being deported "home," it may be better to utilize what contacts you've made in the United States and improve the conditions of your "home" country. If, while incarcerated, you learned how to repair computers, or used more modern construction techniques, perhaps you can be of value there. Further, if you developed friends in this country, possibly they can continue communicating with you and possibly bring relief to the economic scene in your locale.

Regardless of the circumstances, you are not alone. There are scores who have faced the same crisis before, and likely even more will face similar in the future. No matter what, keep your dignity. A coward dies a thousand deaths. A brave man only one. Fascist, sociopathic lunatics may be ruling most countries, but their effect upon you is where you can limit their power. If you refuse to bow down to their nonsense, they lose the battle over your will. You hold the power to determine your fate: use it wisely and with honor.

This article was submitted a year ago after the author won a successful anti-censorship lawsuit in Wisconsin where the prison administration was censoring materials because they were critical of the department and encouraged legal challenges to their abuses. As MIM(Prisons) continues to stress, censorship has nothing to do with the safety and security of humyn beings and everything to do with the safety and security of the state and its use of repression. This article is being posted as we work to release a collection of legal documents and launch a Serve the People program for jailhouse lawyers. We apologize for not publishing this sooner.

Dear MIM Distributors,

I am glad to share with your readers the successful strategy used in my First Amendment case that could be used by other prisoners in the future. However, I would be remissed if I didn't acknowledge the assistance of well known Legal Activist and Para-legal "MoSo" who actually litigated the case.

He provided me with this information for your article. He indicated that prison officials always rely on the trusted and well used excuse to deny your rights by asserting "security" or as in this case, that the material was "inflammatory".

This derives from the well-known phrase that although you have a First Amendment right to freedom of speech, you cannot shout "Fire!!" in a crowded movie theater. Even the Supreme Court has recognized there are limits of what a person can say, including things such as "Fighting Words". These types of restrictions are amplified in the prison context, of course, and are over exaggerated by prison officials.

Thus, the first thing in litigating such issues is to make sure to continue to remind the court that it is their Constitutional duty to review those decisions "independently." This is true despite the assertions put forth by prison officials to support their decisions, and despite the fact that the court owes such decisions some deference. So once you can get the court to step outside of the prison official's mind set, and look at the issue legally, then you have passed the first hurdle.

Most of these conservative Republican judges simply read what the prison official says and accept that as being a valid reason to infringe upon a Constitutional Right. However, a judge's job is to "protect" the Constitution, not act as a supervisor authority for the prison or a rubber stamp, nor be a sympathetic ear for something bad prison officials did against you.

Whether the Court is in your own Circuit or an outside Circuit (if you can't find one in yours), try to develop arguments that show that the Court had ruled against whatever it is the prison officials did. A lot of prisoners make the mistake of thinking the more cases you cite for a proposition, the stronger your argument is and the court will be impressed. What I have learned is stick to one or two cases that are factually the same and continually argue from those cases, showing such excuses are either not valid, with no connection to the "concern," or are exaggerated to such a concern.

In convincing a court such excuses are not valid or are an exaggeration, I used the "comparison" technique. There is well-known case law which holds that if you can show other prisons of the same security allow certain things, even publications, when another bans it, the concern put forth by that prison has been shown to be either invalid or exaggerated. So in the case cited as Lorenzo Johnson v. Rick Raemisch, et al., Case No. 07-CV-309-bbc. (W.D. Wis), we got affidavits from other prisons showing the publication was allowed in those institutions and yet was banned from mine. [note: MIM(Prisons) can often provide documentation of where certain items have been allowed if needed.]

In addition, in discovery, I requested what specific material the defendants deemed objectionable. Then when arguing in the briefs, proved that all that same information alleged to be inflammatory was in fact available to inmates from other sources allowed in the prison, such as on the computer, news paper articles, or even in prior published court decisions.

And lastly, what I would like to import to other prisoners attempting to litigate any First Amendment claims is the fact that most publications are denied based on prison officials' conclusions that such publications create a risk to security because they are either inflammatory, or contain gang symbols or racist materials. So one should make sure to read and cite the Supreme Court's decision in Procunier v. Martinez, 416 U.S. 396 (1976). Another case I would recommend to read is Bressman v. Farrier cite as 825 F. Supp. 231 (N.D. Iowa. 1993). These are just good cases to keep in your ammo belt.

I hope this information helps others. I believe Judge Crabb's decision in Johnson, supra, could also be helpful if cited, as it was finally a principled decision based purely on law and showing that a true judge's Constitutional responsibility is to uphold the Constitution, no matter who's right and wrong. The judge is supposed to be "impartial."

Justice for all!!!

Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A.
Mumia Abu-Jamal
City Lights Books, 2009.

Many prison activists focus their ire on the 13th Amendment, which proclaims slavery to be legal for the convicted felon. While we support economic struggles of u.$. prisoners, we do not see this law as deserving particular focus in the struggle to end the injustice system. A law that might better be a strategic focus for anti-imperialists and other progressive forces is the Prisoner Litigation Reform Act (PLRA), passed much more recently, in 1996, by then-President Bill Clinton.

The PLRA has significantly hampered the ability of prisoners to combat the injustices they face on a daily basis, effectively delegating them as second class citizens in the eyes of the courts. In what he says is the first book on the subject, Mumia Abu Jamal’s Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A. accurately places the PLRA in historical context as modern day Black Codes, keeping the oppressed in their place.

This week, a spokesman for the California Department of Corrections and Rehabilitation went so far as to cite the PLRA in claiming that federal orders to decrease the prison population by 40,000 people in California to relieve the current tortuous conditions are illegal.

Class action suits for humyn rights were an integral part of the prison movement of the 1960s and ’70s. The PLRA has greatly changed the context for such struggle.

Mumia reinforces how much the state fears legal struggle by citing an interesting study that showed jailhouse lawyers to be the most punished population in u.$. prisons; followed by Blacks, the mentally ill, gang members and political prisoners (in that order). Though we often stress the repression of oppressed nations, politically active and other organized prisoners, we have seen over and over people being punished for filing complaints and lawsuits against their abusers. The Illinois Supermax, Tamms, brags of holding the most litigious prisoners in the state.

Mumia opens Jailhouse Lawyers with a story that paints the clear picture that there are no rights, only power struggles. While being interviewed by Mumia, Delbert Africa describes prisoners spending all their time reading law books, fighting their own cases, and then going literally crazy when they lose. Why? “They go crazy becuz, Mu, they really believe in the System, and this System always betray those that believe in it! That’s what drive them out they minds, they cain’t handle that.”

Mumia minces no words, and is clear that getting a fair hearing by the imperialist system is a joke, particularly for the oppressed nations. For the most part he condemns street lawyers for their failure to effectively defend prisoners and soon-to-be prisoners.

In the conclusion, Mumia points out that jailhouse lawyers can also help prop up the system by providing the illusion of justice to the outside and as a pressure release for those on the inside. As a result, things like the PLRA, and rules forbidding prisoners to help each other serve to heighten the contradiction between the oppressed and the state within the u.$. prison system.

He goes on to quote former political prisoner Ed Mead about the need for organizing to go beyond the very limited scope of legal work. That is why MIM(Prisons) is working to build legal campaigns and a new Serve the People program run by jailhouse lawyers within the context of our greater organizing work. In fact, the right to organize in itself is a legal battle that our movement has been and will continue to be heavily involved in. As Mead says, “It used to be against the law for workers to combine, to organize, to unionize, and workers just went ahead and did it. And that’s how they won their rights. And that’s the same with prisoners.”

Overall, Jailhouse Lawyers is well-researched and an easy read, exemplifying Mumia’s journalistic skills. MIM(Prisons) recommends this book, particularly for the analysis of the law provided by Mumia with thorough historical examples. Such an analysis is crucial for anyone who wants to effectively battle the injustice system on its terms.

I would like to shed some light on a scam being run by the establishment here on level 4 SHU yards in California. I'm certain if tax payers knew how their money was being wasted they would have a problem. People here in the SHU with life sentences already are getting taken to court for frivolous prosecution for knives, mutual combat, participating in riots, crap like that.

Now if a person with life doesn't murder anyone you can't upgrade his time so the question arises, why are they trying lifers for petty crimes? Then it dawned on me, these capitalist crooks don't pass up a chance to make a dollar, even if they have to waste resources. California is broke, but the pig has the audacity to waste money on frivolous prosecution, just so they can boost their conviction rate and feed that propaganda to the public about how awful prison is. And in doing so the public is not paying attention to the wastefulness and lies of the establishment. I thought I'd share this fraud with the brothers locked in the struggle.

MIM(Prisons) responds: This prisoner exposes a good example of the criminal injustice system creating reasons to pass around the profits of imperialism and keep the prison system growing. This is very wasteful, but we are under no illusions that alerting the tax payers to this waste would rally them to join the fight against the criminal injustice system. Even in this economic downturn, Amerikan tax payers are benefiting from the profits of imperialist exploitation of the majority of the world's people. And the prison system is a tool of this imperialist system. A majority of Amerikans will continue to support that system even when presented with evidence of it's abuses. Just like a majority of Amerikans support the imperialist wars that murder innocent people around the world and cost billions of dollars.

I just got my first issue of Under Lock and Key (July 2009, No 9). Needless to say, I sure appreciated it. The mail room personnel did not censor it, but that does not necessarily mean they won't in the near future. I write to respond to the letter that was written by the Georgia prisoner (Pig Enables Stabbing of Prisoner in Riot, May 2009). Hopefully you will print my letter so our comrade can read it and use the information therein.

First, to our comrade, you've got to file your complaint at the unit level and keep copies of it and any other documents that you file with the administration because you'll need to file a title 42 United States Code Section 1983 lawsuit for a redress of grievances. Write down everything that happened to you, as well as everything else that you have done since to secure medical care, etc., for this will definitely come in handy for your lawsuit. If you've got any witnesses that are willing to help you out by testifying you need to try to keep in contact with them.

Second, you need to do some legal research in the unit's law library to better understand your situation and to go about filing your lawsuit. You can write the district court where the incident occurred and request the necessary forms to file your suit. The district court's address should be in the unit law library (there should be a "venue list" or simply request the address from the unit law library). There's a lot you need to know and do and there's not enough space here to expound.

I got a hold of your March 2009 No 7 issue. It was the first time I ever saw a MIM(Prisons)'s Under Lock & Key newsletter. One of your articles really reached out to me, about the administration being the real gang. I’m in the feds at USP Florence. I’m currently going through the administrative remedy process for 2 reasons. #1 is my case manager not doing his job. I was supposed to be out February 12th but my case manager has messed my paperwork up so bad, and on more than one occasion, so that I won’t be out until May 14th. The only reason I’m even getting out in May is because my family on the street applied pressure to the proper offices. And my derelict case manager doesn’t even have so much as a reprimand in his file. Just to give you an example of his shoddy work, check this: I’m from Washington DC, and when Mr. Pacheko presented me with my initial release papers they were for an address in Southern California.

The second grievance I’m filing is in relation to a shakedown. I’m currently in SHU on admin-seg. The captain and riot squad came and took everybody to the rec cage area and made us all strip and spread eagle. This took place on 3-25-09 when the temp was below 30 degrees. This strip search was in direct violation of FBOP program statement 5521.04, the 6th circuit ruling in Cornwell v. Dahlberg, and the 4th amendment to the US Constitution. Since I’m in SHU I have to wait for a member of my unit team to respond to get administrative remedies. Since I filed the first remedy, nobody from my unit team has been to see me. Effectively they are killing my ability to file anything further.

To any prisoner anywhere who reads this, I want you to know that prison guards and administrators don’t care if you have a violent outburst to staff misconduct. That’s exactly what they want you to do. So then they can gas you, assault you, and then write you an incident report. The only things these people care about is filing paperwork. I’ve been put out of two institutions for “disrupting the orderly running of the institution” because I file lots of paperwork on behalf of myself and others. Remember, if you do something wrong they write you up. So you have to write them back up.

MIM(Prisons) adds: We agree with this comrade that it's important we use the legal system to fight the abuses of the criminal injustice system. When you take on the system you can also use the pages of Under Lock and Key to expose the injustice and publicize your battles.

When last I wrote I shared my struggle to get typewriters in our prison law library. Makes sense to have typewriters in a law library, doesn’t it?

Well, for my efforts I was thrown in the hole when I was attempting to use the law library facilities in order to finish some work for a case that was scheduled for a telephone hearing the following day.

Now similar to my brother’s situation in North Carolina (ULK #7, March 2009) I was placed in a “security cage” (California prisoners are familiar with these) and left there from 6 am until 2 pm and I had an abscessed tooth at the time (documented and since crowned) and medical refused me my antibiotics and pain medication. By 2 pm I was so delirious with pain that they felt the need to cover the security cage I was in with a wool blanket and dump two fire extinguishers full of chemicals; one of them is known as 505 (lethal).

The next thing I recall was waking up in a cold bare cell with no means of comfort (mattress, blanket, nothing).

Since that attempt on my life I attempted to file a board of claims to the state, but it disappeared after my CCI got it from me. I had to give it to him because I had to get a registered trust statement from him to file with the state. California keeps her “ducks” in a row.

So, as a result of my injury, the state of California’s prison at Mule Crrek accommodates their medically assigned bottom bunk prisoners to bare naked cells in the hole. No property, no bunk, just a mattress on the floor. This is common practice, my neighbor is a seventy plus year old man, forced to sleep on the floor!

If a nation is judged by the way she treats her prisoners, this country is damned.

I have been getting blocked from accessing the courts by mail due to my indigency and DACDC refusing to send out my legal mail to the courts. I have been writing 2-3 times per week to submit motions and add exhibits as evidence including 40 more mail rejection notices and 10 envelopes from the Supreme Court of New Mexico Law Library that were not processed properly as legal mail. Can you advise me on this or at least give me appropriate case law to cite in this regard?