Under Lock & Key

For many years now the New York $tate Department of Correctional Services has been exceeding their authority by calculating sentences consecutively with the undischarged term or terms of imprisonment. Recently, the Appellate Court holds (DOC$) may not run predicate sentences consecutive to parole time where sentencing court is silent on that issue.

The decision decided on February 28, 2008, People ex rel. Gill v. Greene, 852 N.Y.S. 2d (3rd Dept), reverses 25 years of caselaw to the contrary and, if implemented, would have sweeping consequences. It would require the recalculations of the sentences of some eight thousand comrades currently serving predicate offender sentences here in the gulags of the N.Y.$. DOCS. Some of those comrades would almost certainly be eligible for immediate release from these gulags if their sentences were calculated under Gill.

The issues about Gill concern the proper interpretation of Penal Law 70.25(1-A) and 70.25(2-A). Penal Law 70.25(1-A) states that when a court sentences a defendant who owes time (parole) on a previously imposed sentence, the court may specify that the new sentence run either “consecutively” or “concurrently” to the parole time, and if the court is silent, the new sentence shall “run concurrently.” Penal Law 70.25(2-A), however, states that when the court finds that the defendant is a predicate offender, it must impose the sentence to run consecutively to the parole time.

Now, where does it state that the N.Y.$. DOCS has the authority to act as a judicial function, and impose consecutive sentences? The only role that the N.Y.$. DOCS has as far as correcting the court’s error is under Correction Law 601-A, which states that wherever it appears to the satisfaction of the warden of any $tate prison based on facts submitted on behalf of a person sentenced and confined in a $tate prison, that any such person who has been erroneously sentences as a second, third or fourth offender, it shall become his duty to communicate with the district attorney of the county in which such person was convicted, and allow the district attorney to take the necessary action for resentencing.

For those that are under lock in a N.Y.$. DOCS and that are being affected by the actions set forth here by the oppressors, I advise you comrades to obtain the keys to stop our oppressors from oppressing us. For many years we’ve been living in the dark due to our own ignorance. The struggle is calling us, believe it or not. Remember that without struggle we have no progress. “Until the lions have their historian, the tale of the hunt will be told by the hunter!” The key to life is knowledge, my comrades, once we obtain that key then we have the authority and power to unlock that door and proceed to walk through the light and shine. It is time for us to unlearn, relearn, and lean again! ARISE

Any questions pertaining to this matter you can reach out to the Prisoners’ Legal Services of New York, 114 Prospect Street, in Ithaca, NY 14850-5616.

I am writing from Kern Valley State Prison in Delano, California. I am writing to seek outside assistance and support on a few issues of importance and necessity for the entire population’s well being. I have personally addressed these issues to Wardens, Captains. Lieutenants, Sergeants and C/Os. The two most common excuses I get are, there is not enough money in the budget or this is a new prison that is not fully up and running. How could this be?

I arrived here in February 2006, and have seen little if any improvements. I opened the 4th building on this yard out of 8 buildings. Unit recently I have been an active participant on the I.A.C. (Inmate Advisory Counsel). Working on that committee afforded me numerous opportunities to address this administration to no avail. All the necessary steps were taken to exhaust appeal procedures, the 602 process here is flawed on all levels. They have the same excuses as everyone else or constantly screen out appeals requesting unnecessary paperwork and then when provided still deny the appeal.

I am currently starting from scratch to create my own paper trail in regards to disinfectant. They simply do not distribute it to the cells. They use every possible excuse when in all reality they do not support their claims. By law and Title 15 Article 5 personal cleanliness Section 3060 means state institutions will provide the means for all prisoners to keep themselves and their living quarters clean and to practice good health habits. The Departmental Operational Manual has numerous paragraphs which concur and support this. Yet it is still not issued.

We also have no self-help groups. IAC did submit paperwork to have one approved and we never heard back. We had our dayroom taken well over a year ago with the promise that it would be returned. We did not abuse that privilege to have it taken in the first place. There is a very limited number of jobs, no NA or AA groups, no hobby craft or in cell hobby which could be consistent with a maximum security prison. A lot of prisoner parole guidelines or lifers board guidelines require them to attend such groups. Well those guidelines cannot be met when this institution does not provide the means to do so.

This is just a short list of problems here at KVSP. I am putting this out there to shine some light on the injustices of prison life. We need outside pressure put on this institution.

Thank you for sharing the struggle of others bearing much heavier crosses than mine. At this prison I’m trying to establish an Inmate Library Committee - which legally we should already have. The law library is our most powerful tool from within institution walls and the administrative authorities here at this prison have turned our law library into nothing more than a copy room to promote their agenda. The law library here at Mule Creek State Prison does not even have typewriters or provide legal envelopes for purchase or otherwise.

This is my struggle, this is our struggle! The Department of Corrections has coordinated an attack at our ability to be heard by the courts - and the tide is on their side.

This facility here is one of the most over controlled I’ve been in. You can receive no books, magazines, newspapers or periodicals from the outside. There is no educational material available. There is no mail allowed that has xeroxes, printed by ink jet, internet copies, pictures downloaded from the internet, laser-printer photographs, newspaper or magazine clippings, postcards, envelopes with XOXO, S.W.A.K. (sealed with a kiss) or write back soon, perfume smell or lipstick markings.

There is no access to a law library or legal materials here. I have had legal mail opened not in my presence and have even had legal mail taken because it contained information about how to fight the system a case law about the constitutional rights of prisoners from the Center for Constitutional Rights - a law firm out of New York. It also contained a book called “The Jailhouse Lawyers Handbook”. When the contents were seen, the envelope was resealed and sent back.

I have saved and documented everything. I have written up a civil rights complaint against the jail, Aramark (a prison industry complex member) and 3 officers, but I am unable to file because they refuse to let me make the required copies or get a 6 month copy of my trust account which is required to file In Forma Papuperis.

Also I was helping and advising several other prisoners on how to file suit. I had them file grievances to exhaust the administrative remedies as required by the prison litigation reform act. The administration has caught on to what I’m doing and has refused to answer any of the grievances that match the three issues I am trying to take to court. They refuse to answer them because without proof of exhausting the administrative remedies process, they can not take issues to court.

I just got done reading your November 2007 newsletter Under Lock and Key. Impressive reading!

On page 3 “CA prisons ban MIM” you made a serious error. You cited bad case law concerning prisoners receiving mail under the Procunier v. Martinez standard. In 1989 the U.S. Supreme Court in Thornburgh v. Abbot, 490 U.S. 401, 413-14 partially overturned Martinez. In Abbot the court held that the Martinez standard should apply only to a prisoners outgoing correspondence. For incoming correspondence, a different standard applies. This new standard comes from a case called Turner v. Safley, 482 U.S. 78, in which the Supreme Court stated that restrictions on incoming mail are valid if they are reasonably related to a legitimate penological interest. Also see Abbot at 413.

If inmates go to court to fight the ban on MIM and its incoming publications and correspondence, they could wind up loosing hard if they use the wrong case law such as the Martinez standard. On your next publication of your newsletter, I would recommend posting a correction advising inmates to use the Turner standard.

In 2006, a NY prisoner filed a §1983 civil rights lawsuit in the NY Western District Federal Court challenging the constitutionality of Prison Rule 105.12 and its application. Mitchell v. Goord, et al., 06-CV-6197. Prison Rule 105.12 is the so-called “gang rule” of DOCS, which is used more as a tool to punish prisoners for possessing written materials than to prevent organizational activities within an institution. The plaintiff had been placed in SHU three times for possessing written materials related to New Afrikan organizations on the outside he openly affiiliates with and deals with. He consistently argued he has a First Amendment right to correspond and associate with, be a member of, write for and about, and possess the literature of any outside organization he so chooses, so long as he doesn’t organize or attempt to organize a prison chapter of any such organization within a facility without approval.

Upon learning other NY prisoners were being punished for possessing written materials related to the New Afrikan organizations he’s a member of, namely the New Afrikan Maoist Party and its affiliates, and upon learning NY prisons were withholding, rejecting or trashing letters and literature form NAMP and its affiliates to NY prisoners, the plaintiff moved to have his lawsuit certified into a class action to protect the rights of those other prisoners and help them seek redress. The district court judge appointed counsel to investigate whether class action certification is appropriate.

It has been reported that NY prisons, like Southport, Auburn, Clinton and Great Meadow are withholding, trashing and rejecting letters and literature from NAMP and its affiliates to stifle their growing influence and support among NY prisoners. So, NY Prisoners who may have stopped corresponding and receiving literature from NAMP and its affiliates because of being punished for doing so, or because of fear of being punished, or who suddenly stopped hearing from NAMP and its affiliates; it’s asked that you complain about this directly to the attorneys appointed in the aforementioned case. Also send a copy to the Collective Legal Services and the district judge - all addresses are listed below. Make sure you state that you support the class action certification of Mitchell v. Goord, et al. And if you hope to recover a monetary reward for any punishment or mail tampering you need to file a grievance now.

Contact:
William G. Bauer, Esq. - Lead Attorney
Erin W. Smith, Esq. - Second
Woods Oviatt Gilman LLP
Two State Street
Rochester, NY 14614

Hon. Charles J. Siragusa - Presiding Judge
K.S. District Judge
100 State Street
Rochester, NY 14614

Collective Legal Services
PO Box 40799
San Francisco, CA 94140

The one most important problem we have here at Kern Valley State Prison is being allowed access to the law library.

We have a law library with a fire hazard safety code of 25 people max at a time. So there is never more than 20 people allowed in the library. There are only 4 law books total, and 4 CD Rom computers which 20 inmates have to share in a time frame of 3 hour sessions.

You have to take into account that there are 8 buildings on each facility with 160 prisoners in each building, and due to prison over crowding we now have 80 level III gym sleepers illegally sharing a lever IV yard. They can not come out with us due to the fact that they will be sued if one is attacked. But they share our library and visiting room.

So you have 1200 plus prisoners, some of whom are true litigators, sharing a law library that only 20 people can get into at a time. As you can imagine, the waiting list is 2 to 3 months every time. I turned in a request to do some legal research on September 22nd. Here it is 62 days later and I’m still waiting. There are several grievances being circulated on this issue. Administration has proposed to adopt a paging system where we can fill out forms for supplies and have them brought to our cells, but that dose not solve the problem for people who need physical access to seek what they are looking for.

I will soon encounter a new roadblock [in researching censorship lawsuits to help fight the censorship of MIM]. Our law library will be shutting down soon. The library clerks told us that after the 29th of November the law library will only be running for a day or two out of the week. The reason for this, or excuse rather, is that since our gym is due to be emptied out within the next couple of weeks, the population on the yard will be substantially smaller, there is no need for law library to be open every day. Of course this is just an excuse for them not to run the library for us. So most likely the only people allowed inside will be those with “PLU” status, no chance for the rest of us to do any research. However, people are already preparing to draw up 602s and those that are more experienced with the law have promised to pursue the matter. As long as the library remains open, I will hopefully be ready to file the complaint with the district court.

I also want to mention, I just acquired a Jailhouse Lawyers Handbook a few weeks ago. It only instructs prisoners on how to file 1983s. I’ve checked out a couple other similar manuals and this is most certainly the simplest and straight to the point manual I’ve come across, very easy to understand. You can have people download it for free on the internet, or you can write to the National Lawyer’s Guild via a letter and request it for free. For a copy, write to: The Prison Law Project, National Lawyers Guild, National Office, 132 Nassau St, Rm 922, New York, NY 10038. Download it at http://jailhouselaw.org.

I am writing to let MIM comrades be informed on ever more injustice in our so-called system. As of today I have been awaiting trial almost four and a half years, since I was sixteen years old. At sixteen I was placed in a juvenile facility, then the day after my eighteenth birthday was placed in West Valley Detention Center for women in California.

There is not one program at this facility for those awaiting trial - we barely have a library that contains mostly old romance novels. I am not even convicted and have no access to any legal or educational materials. The facility will only provide “Christian” religious materials so any other religions basically do without unless materials can be provided by the outside. We even have some of our religious materials sent back saying they are “gang-related materials” because they are not common beliefs.

How am I to defend myself if I can not get any law books, or educate myself with no real library or any programs? I am 20 years old and have been facing 25 to life since age 16. I now sit idle with my life in the hands of California’s injustice system.

Those who have no financial support must also do without personal hygiene and writing materials as these things are not provided free to indigent inmates. Our canteen prices are so high you’d think they could pay to provide us with something! At least get rid of all the gnats, roaches and rats in our facility! Some prisoners here are even kept in ad-seg for their whole waiting process with no real infractions.

I am only one young female inmate and I need the help from my comrades to fight this ridiculous system. I hope to be able to help in this fight, but I can’t do it alone.

Greetings from one of the realms of concrete and steel within California’s massive prison industrial complex on the central coast in the sleazy valley. In my efforts to re-obtain copies of some records that have been improperly seized I have presented numerous written requests to prisoncrats who tend to ignore such requests.

If or when a prisoner seeks to present such matters on administrative appeals they are customarily mysteriously lost or screened out by the appeals coordinator who acts as a risk manager who systematically rejects administrative appeals on any manufactured ruse he can phantom with impunity, so after going through such headaches one tends to seek alternative means of accomplishing his endeavors.

The California legislature enacted California government code section 6250 which in the pertinent part states “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” This being a right and not a privilege when you look a bit further 6252 definitions sub (c) “persons” include any natural person, etc. sub (d) “public agency” means any state or local agency. Sub (e) “public records” include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics, etc. sub (f) “writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying….any record thereby created, regardless of the manner in which the record has been stored. Sub (g) “member of the public” means any person…etc.

The definitions nowhere state that a prisoner is not a person so the provisions should be equally applicable for a prisoner as it applies to anyone else one. Now pursuant to 6253(c) “each agency, upon a request for a copy of records, shall within 10 days from receipt of the request determine whether the request, in whole or in part, seeks copies of disclosable public records…” sub (d) “nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records…”

When considering the mandatory language of 6253(d) one would conclude that the legislature did not intend for any state agency, including the CDCR to have the right to delay or obstruct anyone from the obtaining of non-confidential public records. In fact 6258 “proceedings to enforce right to inspect or to receive copy of record” state: “any person may institute proceedings for injunctive or declaratory relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter…”

All of this is quite clear and simple language, right? I challenge everyone to look up the public records act commencing at California government code section 6250-6276. Nowhere does it say that anyone can adopt regulations that are not applicable or conflict with the public records act provisions. Section 6253.4 reads “agency regulation and guidelines which authorize every agency to adopt regulations stating the procedures to be followed when making its records available in accordance with the section”. In fact at 6253.4 (b) “guidelines and regulations adopted pursuant to this section shall be consistent with all other sections of chapter and shall reflect the intention of the legislature to make records accessible…”

How then can the California Department of Corrections and Rehabilitation simply ignore a prisoner’s public records act request? When one presents the matter to the court for consideration, the state court would then take the position that the petitioner has failed to exhaust administrative remedies pursuant to 15 CCR 3084.1 because he is under the jurisdiction of the department! Yet no where in the provisions of the public records act do I see where it states that the provisions of Cal Gov. C. 6250 does not apply to persons under the jurisdiction of the CDCR or revoke the right to access public records.

It is wrong to compel a prisoner to submit an administrative appeal regarding obtaining a non-confidential information needed as of a result of a federal court order that directed the plaintiff to add some other specific information to an amended complaint within a specified amount of time. Prisoncrats know this and purposely seek to cause the prisoner to not comply with the federal order so as to indirectly cause an action to be dismissed for non-compliance with the courts directive. Well luckily I was able to make some of the required corrections without a complete copy of the administrative appeals. This problem serves to further expose the injustice that prisoners are subjected to in the pursuit of the legally guaranteed rights. Not to mention that a 602 can take over 6 months administratively.