Under Lock & Key

The California Department of Corrections and Rehabilitation (CDCR) has historically separated General Population (GP) prisoners from Sensitive/Special Needs Yards (SNY) for safety and security. Traditionally those who were convicted of high notoriety crimes, or who suffered “past victimization” or those who were informants or former Security Threat Group affiliates were housed on SNY. Yet, over time, the SNY population skyrocketed to the point of overcrowding. SNY facilities became increasingly violent, stigmatizing those “sensitive needs” designations.

To address this, CDCR developed Non-Designated Program Facilities (NDPFs) – an inclusive housing model created supposedly to mitigate stigma and allegedly help promote and advance CDCR’s rehabilitative objectives. One brave brother filed a “writ of mandate” with the California Supreme Court for Sacramento County on 30 September 2022 ordering the CDCR to immediately cease and halt reintegrating “sensitive needs” prisoners into general population, and from transferring GP prisoners to Non-Designated Program Facilities.

I am one of many prisoners housed in Administrative Segregation (Ad-Seg), solitary confinement and have been written up and now face receiving additional time and will risk being transferred to a higher security level hundreds of miles from my family. My RVR (write up) reads that i am an immediate threat to the safety of self and others and that I “endanger institution security.” Since me refusing to house on a NDPF isn’t sufficient enough to retain me in Ad-Seg lock up, now the officers are claiming that i told them that i would assault their child molesters on NDPF yard.

The court found CDCR Secretary Kathleen Allison’s enforcement of the NDPF policy in violation of the APA (the Administrative Procedures Act). Therefore the policy is an “underground regulation” that is void, entitling Villarreal to relief. The court granted his requested writ and prohibited Allison and CDCR from furthering and implementing the policy until “properly” adopted by the APA. see: Villarreal v. Allison, Cal. Super (City of Sacramento) Case NO. 34-2021-80003779.

So Allison has a non-discretionary duty to refrain from implementing the uncodified NDPF Policy, the APA mandates that “the rulemaking agency must comply with the law’s provisions” or the rule is void.

So here we have a victory. Thank you brother Israel Villarreal! Without struggle and sacrifice there can be no progress nor advancement. Allison is specifically required to examine and study prisoners before classifying them, the court said, but the NDPF Policy is analogous to the classification scheme in Stoneham v. Rushen (1982) 137 Cal. App. 3d pg 729. where prisoners successfully challenged an uncodified classification system as an invalid underground regulation.

[originally written for the Incarcerated Women’s Clemency & Support Project (IWCSP)]

I filed about five clemency petitions during the course of my 28 years of incarceration before finally being granted a pardon in 2022, by former Governor Ralph Northam. The first three petitions were filed “pro se,” meaning on my own. The last two petitions were filed with the assistance of counsel and with the support of state legislators. The last successful push for clemency was also aided by the Justice for Uhuru Coordinating Committee – a group of friends, abolitionists and student organizers from the College of William & Mary.

Borrowing from knowledge and practical experience gained from navigating the clemency process over two decades, what follows is a brief outline of what I believe is the most effective strategy in helping an incarcerated person and their loved ones to wage a successful campaign for clemency in Virginia.

The Law

Neither the Virginia Parole Board nor any court in Virginia has the authority to grant a petition for clemency.

Pursuant to Virginia (VA) Code section 53.1-229 and Article V, Section 12 of the Virginia Constitution, only the Governor has the absolute power and authority to grant clemency.

However, pursuant to VA Code section 53.1-231,

“the Virginia Parole Board shall, at the request of the Governor, investigate and report to the Governor on cases in which executive clemency is sought. In any other case in which it believes action on the part of the Governor is proper or in the best interest of the Commonwealth, the Board may investigate and report to the Governor with its recommendations.”

There’s a common belief that the Governor of Virginia has the power to grant mass clemency to a group of incarcerated people at one time. However, the Virginia Supreme Court in the case of Howell v. McAuliffe, 292 Va. 320, 788 SE 2d 706 (2016) ruled the Governor has no authority to issue group pardons because Article V, Section 12 of the VA Constitution requires the Governor to give a particular (specific) reason for granting each pardon which is something the Governor cannot do when issuing mass (blanket) clemency.

The Process

There are two types of clemency in VA: restoration of rights and pardons.

A petition for restoration of rights restores the rights one forfeits as a result of having been convicted of a felony and can only be sought by people who are not currently in prison. People with nonviolent felonies must wait three years after completion of their sentence before applying for restoration of their rights and people with violent felonies must wait five years. The restoration of rights does not restore the right to purchase or possess a firearm which can only be done by petitioning the appropriate Circuit Court pursuant to VA Code section 18.2-308.2. You can learn more about the restoration of rights process at https://www.restore.virginia.gov/

There are four types of pardons in VA:

1. simple pardon
2. absolute pardon
3. partial pardon
4. conditional pardon

A simple pardon, sought after a person’s rights have been restored, is an act by the Governor granting forgiveness for a crime for which one has been convicted. A simple pardon does not expunge the conviction from a person’s criminal record or restore the right to purchase or possess firearms.

An absolute pardon is granted when the Governor is convinced that a person is innocent of the charge(s) for which they have been convicted and freely and unconditionally absolves the person from all direct and collateral consequences of the crime. A person can petition for an absolute pardon only if they plead not guilty during trial proceedings and exhausted all appellate and other post-conviction remedies, including a Writ of Actual Innocence pursuant to VA Code sections 19.2-327 through 19.2-327.13.

A partial pardon can be conditional or unconditional and remits only a portion of the sentence and leaves the rest of the sentence intact. This is the pardon I received.

A conditional pardon is an act by the Governor which modifies or ends the entire sentence imposed by the court when there is “substantial evidence of extraordinary circumstances to warrant it” and does not become operative until the grantee satisfies a prerequisite and can be revoked if that prerequisite is not met.

There is also something called Executive Medical Clemency where the Governor grants conditional release to an incarcerated person who is terminally ill with three months or less left to live.

Preparing and Filing the Petition

It took me, my lawyer and supporters working together as a team about a year researching and collecting all the pieces for my pardon petition. And by pieces, I mean certificates and diplomas earned since I’ve been in prison, supplemental online petitions, and support letters from family, friends and state legislators who recognized the injustice in my sentence and sympathized with my plight enough to be willing to support me. It is important to collect all these pieces and attach them to the petition as supplements and exhibits at the time of filing because they may not be accepted or considered if they are sent in separately at a later time.

Whether the incarcerated person is applying for a pardon on their own or if someone on the outside is applying for it on behalf of the incarcerated person, it is important (and mandatory) for the incarcerated person to first complete the “Virginia Pardon Petition Questionnaire” and mail it to the VA Secretary of the Commonwealth (SOC). This form can be obtained from the prison’s law library or requested from the SOC Office. Unaware of this requirement, my attorney filed my pardon petition, and the SOC rejected it because I had not completed this questionnaire. So, the pardon process does not and will not begin until this questionnaire is completed.

The Organizing

Organizing here refers to any action (before and after a petition is filed) that will raise awareness about a person’s case and gain community support for their pardon request.

Two of the most important things that should be done before a pardon request is filed are 1) creating a social media presence and 2) creating an online petition on http://www.change.org.

With organizing, gone are the days when news of a planned event had to be promoted via word of mouth and crudely handcrafted flyers. In this day and time, social media is king and one post about an injustice that has occurred can quickly go viral resulting in hundreds and thousands of people showing up at a planned protest in opposition to that injustice. We have seen how vital social media has been for the birth and sustainability of the #MeToo, #SayHerName and #BlackLivesMatter movements. It can be just as effective for a campaign to free someone from prison just as it did for mine.

I would add that social media is more critical to freeing someone from prison than the pardon application itself. Why? Because to be incarcerated for 20 to 30 years is to be erased and rendered invisible to the masses, especially to people born after a person was incarcerated. Case in point, many of the people on the Justice for Uhuru Coordinating Committee (JUCC) were students from the College of William & Mary and were born a decade after I came to prison. So, social media can help bring incarcerated people and their freedom campaigns out from the obscurity of the prison industrial complex and connect them and their campaigns to young abolitionists who are doing most of the on-the-ground agitation and organizing.

Like mine, a change.org petition can function as an abbreviated version of and supplement to the actual pardon petition that will be filed with the SOC Office. With the help of social media, my online petition garnered over 2600 signatures from people all over the county. Others have gone viral (with the help of influencers and celebrities like Rihanna and Kim Kardashian) racking up tens of millions of signatures like in the case of criminalized survivors Chrystul Kizer and Cyntoia Brown. These signatures, in addition to character letters from family, friends and state legislators, can show proof that the community at-large supports a person’s pardon request and are not opposed to a person’s early release from prison either because they believe the person was sentenced unjustly or (to use carceral language) has been rehabilitated and will not pose threat to public safety.

Another thing that should be organized are public rallies. My team organized a rally both before and after my petition was filed.

The first one, organized by my attorney before she filed my pardon application, was held at the state capital. Though it received a low turnout, word of it spread to staff in the Governor and SOC offices and members of the General Assembly resulting in a veteran state senator showing up, listening and speaking to those in attendance. This is why it is strategically important to hold a rally at the state capital even if only a small amount of people show up. The second rally, organized by the JUCC after my petition was filed, was held near the Virginia Commonwealth University and managed to draw about 80 people. Posts on social media helped the second rally to achieve a greater turnout and connected the JUCC to other community groups and organizers who decided to sign my petition and support my campaign. It is important to note that all rallies at the state capitol, however small, must be pre-approved by the Department of General Services. The number to call for this department is 804-786-3311.

Another thing that should be organized are carefully timed emails and phone calls directed at the SOC, the pardon staff, and the Chief of Staff for the Governor after a pardon petition has been filed. There is a common belief that contacting the SOC and pardon staff will have an adverse impact on a person’s pardon request and will even result in a pardon application being prematurely denied. This may be the case if the calls/emails come across as demanding or pressuring officials to grant a pardon request. Those are not the kind of calls/emails I am recommending here. Based on my own experience and insight gained from someone working in former Governor Northam’s administration, it is helpful to have a person to make a follow-up email to the pardon staff about six months after a petition is filed to inquire about the status of the petition. [The email to the pardon staff is pardons@governor.virginia.gov]. Most importantly, all supporters of the incarcerated person (including any political supporters) should make calls to the SOC and the Governor’s Chief of Staff a week before a Governor’s term is set to expire to (politely) reiterate their support for a person’s pardon request and state the reasons the incarcerated person would be a good candidate for clemency. [The phone number to the SOC is 804-786-2441, and the phone number to the Governor’s Chief of Staff is 804-786-2211].

Keep in mind that on any given day, the SOC, pardon staff, the Governor’s Chief of Staff, and the Virginia Parole Board’s Special Investigations Unit tasked with investigating pardon requests and making recommendations to the Governor, are handling thousands of pardon applications, often with limited staff. Making these calls will help make a person’s pardon application stand out, prevent it from being given a rubber stamp denial for reasons other than the merits of the case, or left in a stack of papers on top the Governor’s desk when their term expires which, unbeknownst to many, happens more often than not.

One last note I want to make is that parole and pardon requests are often denied on the basis that early release of the incarcerated person will pose a serious threat to public safety.

Ultimately what needs to happen in order for a clemency campaign to be successful is that the incarcerated person and his/her/their team must garner as many supporters as possible so that the voices of the people who want the person out of prison are louder (and more powerful) than the voices of the people who want to keep the person in prison.

The Bay Area is the latest site of Our all out legal war against digital-mail prison profiteer Smart Communications. San Mateo County, located on the peninsula between San Francisco and San Jose, instituted the MailGuard system used by Florida-based Smart Communications in late 2021 in its county jail. The county had the second lawsuit to date brought against it for its use of the system. The first was filed last fall, which alleged (validly I’m sure) exposure of private communications between attorneys and their clients to correctional guards.

The new lawsuit filed last week by an extremely influential legal coalition including the Electronic Frontier Foundation, Social Justice Legal Foundation and Columbia University’s Knight First Amendment Institute aims to get a judge to declare the mail system has violated its subjects’ First and Fourth Amendment rights. Ultimately the aim is to order the county to stop using it and purge all retained electronic mail records. Record requests by San Jose-based civil rights group Silicon Valley De-Bug have shown scanned mail is retained and able to be accessed by jail staff for seven years according to the contract, even after a persyn has been released from jail.

The Electronic Frontier Foundation (EFF) is an exciting addition to the legal team involved in the assault on this totalitarian surveillance system. Formed in 1990 by John Gilmore, John Perry Barlow and Mitch Kapor, this international non-profit digital rights group based in San Francisco, CA got its original financial backing from Mitch Kapor and Apple co-founder Steve Wozniak. The EFF has handled (and won) many high profile cases against companies like Google and Facebook, but its most famous case (its first, that also led to its creation) preserved forever in historical hacker lore, happened in early 1990 against the U.$. Secret Service for its illegal raid/search and seizure operation of Steve Jackson Games. This was one case of many happening at the time across the United $tates against alleged hackers spurred along by a state and federal task force code-named Operation Sundevil.

Steve Jackson Games was raided due to complete incompetence by Secret Service personnel who thought a handbook for a role-playing game by Steve Jackson Games called “GURPS Cyberpunk” was actually a handbook for computer crime, sort of a hacker’s version of the Anarchist’s Cookbook. The winning of this case started EFF’s promotion and defense of computer and Internet-related civil liberties.

While the case against San Mateo County’s use of Smart Communications mail system has not been decided yet, We the imprisoned lumpen can only hope that the plaintiffs which number 5 prisoners at San Mateo County Jail, several family members, and Oakland-based artists collective ABO Comix, pass up on any instantly gratifying concessions offered in settlement like what happened in the Ashker settlement in the aftermath of the California Hunger Strikes and see this lawsuit through to its glorious conclusion.

MIM(Prisons) adds: We have published a series of articles in recent years addressing this new trend in complicated digital mail systems that just make communications with the outside world more difficult and more censored. Across the board the main reason given for these systems is to prevent drugs from entering prisons. A recent report from a comrade in Hughes Unit in Texas on the continued rise in fentanyl deaths from K-2 brought in by staff reiterates the hypocrisy of this claim. Meanwhile Hughes Unit remains one of the biggest censors of mail from MIM Distributors in the state of Texas.

We appreciate the focus of these organizations on the importance of connection to family and community and welcome them in the battle against Smart Communications, JPay and other digital mail vendors profiting off of prisoners and their families while imposing a surveillance state on all of us.

The Governor of California has decided to rename San Quentin “Prison” to “Rehabilitation Center.” This is just one more appeasement given to the millions of Californians who have suffered the injustice of incarceration. Politics has no more place in the justice system than religion has in government. However, the injustice system remains more political than the legislative branch.

Governor Newsom’s play at “restorative justice,” AKA rehabilitation for “some of the less dangerous criminals,” is as false as his smile. For instance, the old lady that was hypnotized as a child by Manson to commit a murder of someone famous has been granted parole (found suitable for release from prison) no less than 15 times by a board of experts in evaluating that kind of thing (Parole Board). However, Governor Newsom, who is not an expert, has taken it upon himself to deny (veto the Parole Board’s decision) each and every time!

That is only one instance where this two-faced politician has denied parole to people. This makes clear that Newsom’s notion of rehabilitation is purely symbolic. Nothing more than the smile; handshake of Satan himself.

Funny, this morning on the mainstream news, Mike Pence is accusing the Manhattan District Attorney of politicizing the law for charging a former President Trump. Funny, politics in the law? How can a prosecutor have so much power to arrest a former President of the United $tates? Funny because these same rich assholes gave that enormous power to prosecutors and police and judges when it was used to arrest the poor man. But now that it is used to arrest the rich man, it is politics?! Did these rich people really think that if they built a monster that the monster could be controlled? Did they really think that the injustice system would only be applied to hurt and kill poor people?

Pence and Trump should not be surprised now. Politics have always been part of the law for the poor man. Despite the image of a blindfold on Lady Justice, the proletariat knows all too well that the law is political. Now the injustice system monster will show its ugly belly to anyone and everyone because that is how much power the pigs have been given.

Perhaps now we can see what California Governor Newsom’s motivations are in pretending to abolish prison. Is he afraid of the monster he created? We all heard him say on T.V. that he is tired of paying the trillions of dollars his prison industrial complex eats up.

His notions of restorative justice are a little misplaced though. Rather than educate prisoners he should be defunding his prison system monster and putting the trillions back into the community – after all he can’t have his cake and eat it too. But that seems too much to ask of the Devil. He already said his rehabilitation is only for some and “not the more dangerous criminals.”

Anyone with half a brain knows that the real cause of crime is poverty. Poverty caused by the trillions of dollars going to the police and prisons and not to the community.

MIM(Prisons) adds: We agree that all prisoners are political. The state paints itself as being an arbiter of blind justice as this comrade states, when in reality it is the tool of one class to use against others. That is why real change requires changing the state from the hands of the bourgeoisie to that of the proletariat, not just shifting tax money around from prisons to more social services.

What’s good to all my Sisterz and Brotherz on the inside. My name is Motivation. I am a certified paralegal incarcerated in the Texas Department of Criminal Justice. I was moved to write this article because I’ve experienced TDCJ’s arbitrary and unconstitutional censorship under Board Policy - 03.91 (BP-03.91), and I’ve also witnessed the same with other men on my unit. Therefore, I’ve filed a §1983 civil complain. See Linzale Greer V. Bryan Collier, et al., 4:21-cv-03976. So, if you are a TDCJ inmate and you are experiencing improper denials because the TDCJ claims the material contains a sexually explicit image, then here’s some information to guide you on defending your rights and legally combating BP-03.91.

Know the Policy

First and foremost, find out what the policy is and how the policy defines a “sexually explicit image.” This is easy. Just go to the law library and request BP-03.91(rev.5). For those of you who may not know, BP-03.91 was revised on 25 June 2021 by the Texas Board of Criminal Justice, and the revision expanded the definition of a sexually explicit image. It essentially bans any image which depicts sexual behavior and/or is intended to sexually arouse. This means TDCJ inmates cannot possess or receive by mail any image deemed sexually explicit. In my view, this is unconstitutional because BP-03.91 is impermissible and vague, over broad, and unreasonable on its face and as applied.

You have the right to appeal

Secondly, whenever the mail room denies material, you shall be provided a sufficient notice in writing and a detailed reason for the denial. You also have the right to appeal the denial to the Director’s Review Committee (DRC) and the DRC shall render its decision within two weeks after receiving the appeal. However, if the material has been previously banned by the DRC, then the denial will be non-appealable. I don’t agree with this practice but the reality is, this is what the TDCJ does. Keep copies of all documents for your records.

Exhaust all available remedies

The Prison Litigation Reform Act (PLRA) requires prisoner’s to “Exhaust all available remedies” within TDCJ before filing a §1983 civil complaint. What this means in some cases is that you must file a step 1 and step 2 grievance before you can go to court. Remember you must exhaust only “Available remedies” and need not exhaust “unavailable remedies.” In my opinion, there are no available remedies within the TDCJ grievance procedure concerning mail room censorship because the grievance office routinely returns inmate grievances and states that the issue is not grievable. Also TDCJ grievance procedures states that inmates may not grieve matters for which other appeal mechanisms exist. Nevertheless, you should still file a step 1 and/or step 2 to be on the safe side. Now, if your step 1 is returned because the issue is not grievable then, you do not have to file a step 2 because there are not available remedies. You can now go straight to court.

Legal Research

Another vital tool is conducting legal research. This is where you roll up your sleeves and get down to business. This will be your prerequisite before filing suit. I didn’t have anyone to hold my hand during my legal research process or to help me file my suit. I can admit that legal research is an arduous task, but more importantly, it’s vital before filing a complaint. However, to point you in the right direction, here’s some relevant case laws that will be important to your fight against TDCJ:

• Turner V. Safley, 482 U.S. 78 (1987)
• Thornburg V. Abbott, 490 U.S. 401 (1989)
• Guajardo v. Estelle, 543 F. Supp. 1373 (S.D. Tex. 1977)
• Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978)
• Guajardo v. Estelle, 568 F Supp. 1354 (S.D. Tex. 1983)
• Guajardo v. Tex. Dept Crim. Justice, 363 F.3d 392 (S.D. Tex. 2004).

The Guajardo cases specifically applies to TDCJ’s correspondence rules. It will give you historical and present insight on the promulgation of BP-03.91, and how to legally proceed to challenge it in federal court. You should also get very familiar with the PLRA because it controls prisoners litigation and the types of relief we are entitled to. The federal statue can be found at 42 U.S.C. 1997e and 28 U.S.C. 1915A9c). If you need additional case law, just ask the law library to shepardize the above cases for you, and you will find more jewelz than you can use.

Filing a §1983 Civil Complaint

After doing all of the above, your next step is to file a §1983 Civil Complaint. You can file it in either state or federal court depending on your situation. However, because you will be complaining of First Amendment violations under the U.$. Constitution, you should file in federal court. Federal court has jurisdiction over federal law. But again, depending on your case and the facts of your case, sometimes filing in state court is the better route. You will have to research this issue to decide which route fits you.

You can get two §1983 civil complaint forms from the law library. One is for you to send to the court and the other is for your copy. Remember always keep copies of everything you send to the court. The most important part of filing a complaint is stating sufficient facts, which is “enough facts to state a claim to relief.” If you do not state enough facts, there’s a chance your complaint will be dismissed for failure to state a claim upon which relief may be granted.

If you can get an attorney to file your complaint that will be great. However, the reality is, the vast majority of prisoners are left to litigate pro se. So, do your homework and learn the law.

My Last Wordz

So, to all my Brotherz and Sisterz that are willing to legally fight the arbitrary censorship system nationally, I tip my hat to you all and wish you courage, patience, and persistence. Also, for those of you who are in the process and those that have already begun the process of litigation, WE are not doing this just for Us. WE are more on the front line for the voiceless and the ones that may not have the ability to STAND UP. So, I ask that WE ALL DO OUR BEST AND NOTHING LESS! Stay Blessed No Stress!

Sincerely, Motivation Equalz Elevation

MIM(Prisons) adds: We have a more extensive guide to fighting censorship that is applicable for all states that we send to anyone facing censorship of our correspondence or literature. We print the above as a concise summary with some specific info for Texas.

This is also part of an ongoing campaign among Texas prisoners to fight the rewritten BP-03.91 mentioned above. One of the lawsuits around this campaign is Martinez v. TBCJ, et al. #3:21-CV-00337. The judge has since denied to issue summons to each member of the Texas Board of Criminal Justice. This is being appealed. The plaintiff is requesting more support from prisoners in TDCJ in the form of affidavits and/or unsworn declarations. These affidavits/declarations will help make the argument for a statewide injunction of BP-03.91 and can be sent to MIM(Prisons) to forward to the plaintiff.

For years we have offered the Texas Department of Criminal Justice’s (TDCJ’s) Offender Grievance Operations Manual (OGOM) for sale to Texas prisoners. As we’ve reported previously, the manual has been removed from all Texas law libraries. The OGOM is a crucial reference for prisoners to understand and utilize the grievance process to address staff abuse and misconduct. Yet the TDCJ has deemed it illegal for us to mail it to fellow prisoners at their own cost.

Of the many copies we’ve sent to Texas prisoners in the last two years only one was confirmed received. A third were confirmed to have been censored by the TDCJ. The rest are of unknown fate because almost everyone we sent the OGOM to never wrote to us again.

Since we have been told by the TDCJ countless times that they will not allow us to mail their own manual to prisoners (and since this has not proven an effective organizing tool – almost everyone we send it to never contacts us again) we are not going to mail this publication again until someone can successfully challenge the decision by the TDCJ.

We did have one comrade who requested the OGOM on the premise that they will file a lawsuit once it is censored. The OGOM we sent was censored in November, appealed, and denied by the Director’s Review Committee on 6 February 2023 with the justification of “in contradiction with BP-03.91”. The comrade should be prepared to go to court now that the appeals process has been exhausted per the Prison Litigation Reform Act (PLRA). We will report any updates on this battle in ULK.

UPDATE: As we go to press in April 2023, the last OGOM we mailed out was received by the prisoner who ordered it. We are glad to hear it. But for now we are sticking with our decision above.

On 10 January 2023, a new legislative session convenes.

Several state representatives have committed to utilizing proposals from Texas prisoners to implement reforms. Rep. T. Meza has stood out with her zeal to end solitary confinement throughout Texas’ prisons and jails. She previously introduced a bill along those lines that didn’t make the floor. However, this session with more support from her colleagues, and with a litany of Texas citizens concerned about this, things look to possibly end differently.

In conjunction with the efforts of state politicians on the 10th of January, supporters of this campaign will be protesting on both sides of the walls. Around the state prisoners are showing their support by hunger striking. People on the outside will protest in Austin at the state Capitol.

Lastly, there continues to be civil lawsuits filed against TDCJ and its practice of indefinite solitary confinement. One of Our comrades has filed suit and that’s been reported on in previous ULK’s.(1) There is also Hanson v. Barnett, CA No. 1:21-cv-629-RP-DH, an extensively detailed complaint filed in the Western District of Texas, Austin Division.

We encourage all similarly situated people to file 1983 lawsuits, and if you need advice or assistance the address to Tx Team One’s legal representative is: 113 Stockholm #1A, Brooklyn, NY 1121

UPDATE As we go to press prisoners are wrapping up week 2 of the hunger strike. The TDCJ has verified 72 participants, while supporters say at least twice that number are on strike across the state prison system. In their defense the state also says that the number of prisoners in isolation has decreased from 9,186 in 2007 to 3,172 in 2022.(2) We say that is still too much torture!

Texas Prison Reform, the prisoner organization, gave the state 90 days notice before initiating this latest action in their campaign. In that statement they mirror their demands off the infamous Ashker v. Governor of California case, which settled for some minor reforms in how people are put in the Security Housing Units rather than abolishing the practice altogether. Abolishing torture is a winnable battle, that continues to gain attention and support. Anything less than a complete ban on solitary confinement across Texas prisons and jails is a failure of basic humyn rights.

<sup>Notes: 1. see ULK 76 for the original announcement, and updates in subsequent issues of ULK. All articles are online at: https://www.prisoncensorship.info/campaigns/TX/end-indefinite-restrictive-housing-in-tdcj/
2. Ed Pilkington, 19 January 2023, Texas prisoners continue hunger strike in protest against solitary confinement, The Guardian.</sup>

It is with immense frustration that I write to you on the behalf of ALL offenders that are in the Indiana Department of Corrections (IDOC) prisons that are run and operated by The Geo Group Inc. (a private prison corporation). Prisoners here are receiving “State Pay,” which consists of the following:

The level of unequal wages from The Geo Group Inc. regarding this effort is appalling. Indiana Government Officials have unfortunately failed to address the problem and have allowed the “State Pay” wage disorder to continue.

In the State of Washington, on 27 October 2021, a Federal Jury ordered The Geo Group Inc. at the ICE Processing Center (formerly the Northwest Detention Center) liable under the State Minimum Wage Act (MWA). In Washington, Attorney General Bob Ferguson filed a lawsuit alleging that The Geo Group Inc. was violating the state minimum wage law. The U.S. District Judge Robert Bryan ordered The Geo Group in Tacoma, Washington to pay their detainees $13.69 hour. These are immigrant detainees. These immigrant detainees were represented by four (4) law firms. Names of the law firms are as follows;

• Schroeter Goldmark & Bender – Seattle, WA
• Open Sky Law PLLC – Kent, WA
• Menter Immigration Law PLLC – Seattle, WA
• Law Offices of Robert A. Free – Nashville, TN(1)

We believe that our pay here, less than 2% of the pay received in Washington, is discrimination by The Geo Group Inc. here at the Indiana Geo Facilities.

On 26 January 2021, President Joseph R. Biden, Jr (D) signed an order and stated… “to stop corporations from profiting off of incarceration that is less humane and less safe”. We believe that The Geo Group Inc. is violating Title VII of the Civil Rights Act, which prohibits racial discrimination in the workplace. State prisoners may not be entitled to State Minimum Wage, but there is NO exception for private for-profit detainees, prisoners, or offenders here. The Geo Group prioritizes profits over rehabilitation, making us ALL less safe.

Indiana Government Officials and The Geo Group Inc. have to remember that we are in an inflationary economy. Us prisoners here at The Geo Group Inc. facilities here in Indiana are getting overwhelmed, over-worked, and frustrated simply because we do not have the same income or access to resources as others. We have material needs such as hygiene, property, food, etc. that cannot be met due to the “State Pay” wages that have NOT kept up with the exorbitant price of living.

At the Indiana Department of Corrections commissary from the Indiana Correctional Industries Plainfield, IN Distribution Center, the prices of our needs are increasing dramatically due to the inflationary factor. NO prisoner in The Geo Group Inc. private run prison(s) who gets State Pay should ever cower in fear of his/her employer‘s power to silence legitimate points of view of their wages.

The State of Indiana and/or The Geo Group Inc. needs to raise the starting pay wage significantly to a reasonable wage. It is time for the State of Indiana and/or The Geo Group Inc. to make the financial adjustments and changes.

We believe that there are laws, ordinances, policies, rules, acts, statutes, procedures, or even regulations that have been violated or criminalized by our Constitution in the Fair Labor Standards Act (F.L.S.A), Administrator of Wages & Hour Division, U.S. Deptartment of Labor, Equal Employment Opportunity Commission, Labor Management Relations Act, etc. We know Indiana Government officials Governor Eric J Holecomb, Commissioner Robert E Carter Jr, Deputy Commissioner/Chief Financial Officer Dan Brassard, are the individuals who control our scale wage that makes the financial adjustments and changes in our “State Pay” for the The Geo Group Inc. to pay our wages.

A raise in starting pay will be a positive thing allowing more offenders to find satisfaction in their careers and it can allow more workers to make a living wage and contribute to the broader economy. Our facility jobs are not a free pass to wipe our slates clean, they are an acknowledgment that we have to change our lives to be more accountable and the State of Indiana and/or The Geo Group Inc. is what will allow us to do that. A productive offender in the Geo Group facility with a fair wage will perform better work ethics, do things properly, and have better responsibility.

We as prisoners are entitled to be paid minimum wage or a fair wage for our labor keeping The Geo Group Inc. facilities up and running, like preparing and serving food, running laundry, maintenance, landscaping, mowing, sanitation, administration clerks, etc. We are not asking to be put on an indefinite leave of absence means or that ALL Geo Group contracts be terminated. We are exercising our rights, which are workers rights, and show that we have a right to stand up for each other and for justice for Geo Group Inc. prisoners who work at their facility and receive state pay wages.

Please take into consideration, when we do get our “State Pay” the I.D.O.C takes 15% right off the top. This money goes into our re-entry account which we receive back upon our release back into the community. This gives us a little financial assistance. Now here is this Geo Group Inc. offender who has a C-Pay job, which is $0.15 an hour, works 6.5 hours a day, 5-days a week, comes out to be $19.50 per month. Now the State takes 15% for re-entry which comes out to $2.89. This leaves you only $16.32 a week to buy hygiene, property, food, paper, pens, etc. And if you went to go to medical or dental, that’s a $5.00 charge and the medication is $5.00.

Please also investigate the Geo Group Inc. in Tacoma, Washington where they are paying immigrant detainees $13.69 an hour. This is discriminating against us offenders and manipulating us due to what they pay us as “State Pay” here in Indiana.

• State of Washington Attorney General – Bob Ferguson filed lawsuit against The Geo Group Inc. in 2017 [Washington v. Geo Group, USDC, W. Dist. WA. Case No. 3:17-cv-05806RJB]
• Detainees filed lawsuit in 2017 with assistance of Schroeter Goldmark & Bender and Robert Andrew Free [Nwauzor v. Geo Group, USDC, W. Dist. WA, Case No. C17-5769RJB]

Thank you for your time and patience.

MIM(Prisons) responds: First, we want to remind our readers that a very small percentage of prisoners in this country are in private prisons, and most of them are immigrant detention centers like the one in Washington discussed. As the author above argues, there are potential legal differences in how labor is considered in private prisons compared to most prisons. And economically it is very different because corporations like Geo Group are making money running prisons for the state, but using basically free labor to do much of that work. This is a very dangerous combination that economically incentivizes mass incarceration.

In our 2018 survey of prison labor across the United $tates we found that wages for maintenance work typically ranged between $0.14 and $0.63 per hour. Though of course in some states prisoners do not get paid at all for working to maintain the prisons. This puts Indiana at the low end of states that do pay. But as this comrade and others have recently pointed out, inflation is hitting hard in the form of commissary prices. Therefore to have wages at the low end from 5 years ago is far from adequate when most prisoners need to buy supplemental hygiene and food, not to mention minor comforts.

Based on the information we can find online, the Geo Group stopped having prisoners work right after the court decision, so no prisoners are getting paid minimum wage. In addition they appealed to delay back-paying those who had already worked in the past.(2)

<sup>Notes:
1. Prison Legal News, December 2021 Vol. 32 No. 12 pg. 26 and April 2022 Vol. 33 No. 4 pg. 30. published by the Human Rights Defense Center
2. Alanna Madden, 6 October 2022, Ninth Circuit takes up Geo Group appeal over underpaid detainees, Courthouse News Service.</sup>

In prisons, there are venues for prisoners who have been abused or treated unfairly or inhumanely. When things like this happen, a prisoner has a right to sue, but only if he can get his case to court.

The problem is that because of PLRA, or Prison Litigation Reform Act, it’s much more difficult for a prisoner, even if he is right, to get his case to court. In essence, PLRA requires prisoners to first exhaust the Administrative Remedy procedure… or a grievance procedure. In Federal Prisons, it is known as a BP.

So quick scenario; a Black prisoner is being harassed by white officers, who: constantly use racial slurs and trash his cell, taking his family pictures and other valuables. The prisoner tries to file a BP to get to court. Months pass, with no success, so he tries to take it straight to court. The court shoots down his claim, because he did not go through proper procedure of filing a grievance. So, even if the prisoner is right, the courts won’t acknowledge his lawsuit because he didn’t go by the rules.

But, is the prison going by them? Let’s talk about that, and how prisons like USP Tucson are actually breaking the rules, making it very difficult for prisoners to properly file a lawsuit, because the Administrative Remedy procedure is horribly flawed.

To begin, let me pull up a statement from a case law, Woodford v. Ngo 548 US 81, 126, S. Ct 2378, 165 L.Ed 2d 368 (2006). I want to share with you an argument a prisoner had about the grievance procedure, and what the argument against it was:

“Respondent contends that requiring proper exhaustion will lead prison administrators to devise procedural requirements that are designed to trap unwary prisoners and thus to defeat their claims. Respondent does not contend, however, that anything like this occurred in his case, and it is speculative that this will occur in the future. Corrections officials concerned about maintaining order in their institutions have a reason for creating and retaining grievance systems that provide — and that are perceived by prisoners as providing - a meaningful opportunity for prisoners to raise meritorious grievances. And with respect to the possibility that prisons might create procedural requirements for the purpose of tripping up all but the most skillful prisoners, while Congress repealed the “plain, speedy, and effective” standard, see 42 U. S. C. §1997e(a)(1) (1994 ed.) (repealed 1996), we have no occasion here to decide how such situations might be addressed.” - Justice Samuel Alito

In short, this argument claims that the prisoner was incorrect that prisons could – and do – make it much harder for prisoners to file a grievance. After all, if the prisoner can’t file the grievance, he can’t get to court to sue the officers. In the above case, the Black prisoner is trying to go through the procedure, meaning he has to exhaust the grievance procedure, before he can go to the courts. This kinda makes sense, because one intent of the PLRA is to prevent a lot of frivolous lawsuits by prisoners.

But in doing this, there is a flaw, one prison has used a cheat in the procedure. Let me explain:

To begin the BP, or grievance process, a prisoner must first have an issue… ok, check. The prisoner claims discrimination against officers, so he has a right to file a grievance. Well, step one, as I use USP Tucson as an example, is to get what is called a BP-8. This is the lowest form of the grievance, and it should be available upon request.

Problem: Here at USP Tucson, it isn’t. The prison makes a policy that ONLY the Counselor can hand out a BP-8. So, what if the Counselor isn’t there? You have to wait to find the Counselor, because apparently no other officer in the world can get that piece of paper. This is already an obstacle of due process. In other states, you can get a grievance form from any officer, especially the ones working in your dorm. It makes sense, they are there all day, why not allow them to pass out the grievances?

But, if you change the rules, you then regulate how often you pass out the grievances. Now, you can’t get a BP unless there is a certain officer there. And if he/she isn’t there, they don’t pass them out. So, in theory, a Counselor can stiff-arm prisoners from getting a BP, by making excuses of not being there, or “not having any”.

I say this from a LOT of experience… this happens a lot here at USP Tucson. Many prisoners are frustrated with the Administrative Remedy because for most, it simply does not work. The case law implies that all prisons want to make the grievance procedure available for the maintaining of order, this is not necessarily true at all.

Another technique for obstructing the grievance procedure is to simply “lose” the grievance. If you manage to corner the Counselor and get a BP-8 form, you then have to fill it out and hand it back to them. Problem: The BP-8 is a single white piece of paper, and once you hand it to the Counselor, you have NO copy. So how do you know they actually processed it? In many cases, they don’t. They either “lose” it, or simply trash it.

So, if you can get past the BP-8, there then is a formal BP-9, which is on carbon paper. You have to fill out the form (if you’re lucky enough to even get one), then turn it in to the Counselor (if you can find “Waldo”), and wait for them to give you a carbon copy, if they don’t lose it or trash it.

Additionally, the carbon paper on the BP-9 is so poor, you have to have the strength of the Hulk to press down, to make the copy on the second page, let alone the third or fourth. So, the BP-9 is almost worthless after the first copy is torn off.

If you get no responses from the BP-9, then you have to go to the BP-10, which goes over the heads of staff. But rinse and repeat on the procedure. It is incredibly difficult to get the forms, when in actuality, it should ALWAYS be available to any prisoner, at any time, by most staff members. But staff plays keep away, from prisoners, to prevent them from getting the BP’s, so they cannot timely file.

I say all this from experience. In February, I filed a BP-9 against staff in my dorm because they refused to give us chemicals to clean the showers during a lockdown. Over that period of time, an average of 30 prisoners used each shower cell, and not one drop of chemicals were used to clean it. Think about that, how many of you would walk into a shower after 30 other people had already used it? How about 10? Even 5? No one here should have to do that, but staff knew about it, and did nothing.

So, I wrote a BP-9 and the Case Manager took it and “turned it in” to the Counselor, long story short, as of this date, 9 September 2022, I have heard nothing, and they had only 30 days to respond. My guess, they threw it away.

This is much like cheating at chess, where we have to match wits against a facility that seems to be dead set on preventing prisoners from properly (and legally) filing a grievance. Let us not lose the fact that the grievance procedure is Constitutionally protected; no officer or staff has the right to prevent prisoners from filing.

But, if you cannot complete the grievance, you cannot get to court, because they will claim, as the case law showed, that the inmate didn’t do the proper work, when in fact he did all he could do, but staff aggressively prevented him from being able to file. The courts seem to be blind, or naive, that prison officials would actually HONOR the grievance system.

Think about that, why would they honor a system that holds their staff accountable? Do you really think they are going to play fair if, in the example I gave, a Black Prisoner is trying to sue racist officers? Do you really think they are going to let the BP’s go through, when they can block it at every turn?

It’s like cheating at chess, and it’s also why so many grievances fail, because places like USP Tucson have figured out the loopholes and are exploiting them to prevent prisoners from their constitutional rights. It happens all the time, and nobody is doing anything about it.

I mean, take out my queen, rooks and bishops, and yeah, it’s hard for me to win too.

MIM(Prisons) adds: This is why comrades in United Struggle from Within initiated the campaigns “We Demand Our Grievances are Addressed.” Comrades developed petitions for many states as well as the Feds to appeal these issues to higher and outside authorities to try to bypass the problem described above. This campaign has included other tactics like filing group grievances and even taking other group actions when grievances are ignored. In many states comrades have called for an outside review board to address these complaints. But ultimately, there are no rights only power struggles, so leaving these issues in the hands of the state will only do so much. The solution to the problem is coming together as prisoners, as the oppressed and fighting for these rights every step of the way. That is why we must build peace and unity among prisoners to get grievances addressed.

[The following complaint was served to the Department of Justice.] RE: California Department of Corrections and Rehabilitation (CDCr) and Richard J. Donovan Correctional Facility (RJDCF) Systemic Scheme of Fraud to Misappropriate Federal Funds

I am requesting an investigative audit of all Federal Funds received by CDCR specifically for mental health programs, services, and activities here at RJDCF because it is clear that those funds are not being used for intended purposes. As a participant in CDCR’s Mental Health Services Delivery System (MHSDS) at the Enhanced Out Patient (EOP) level of care under the Coleman v. Newsom, 2:90-cv-00520-KJM-DB(E.D.Cal) injunction, MHSDS EOP participants are required to receive 10 hours a week of ‘structured therapy’, and receive federal funds to provide such to prisoner participants.

Here at RJDCF EOP there are no specialty, or core, therapy groups which treat or target the diagnosis and symptoms of MHSDS EOP participants because mental health care providers continue to tell us that they’re short of staff and resources.

To create the illusion of providing the 10 hours a week of required ‘structural therapy’ as so CDCR may continue to receive federal funds for RJDCF EOP program, prisoners regular exercise yard time is being documented as recreational therapy,(or R.T. yard), where recreational therapist’s (R.T.’s) assigned to supervise R.T. yards are being explicitly instructed by CDCR Mental Health Program overseers and supervisors to embellish R.T. yard notes to give any reader the impression that the R.T. yard activity itself was/is therapeutic, when fact is, aside from walking around to record which MHSDS EOP prisoners attend regular exercise yards, the R.T.’s have no contact with any of us, yet a significant amount of such fraudulent hours are and have been used to report compliance.

There are many MHSDS EOP participants who report receiving a regular schedule to attend particular mental health therapy groups which does not even exist, as there is no facilitator to provide treatment.

Then, the gist of the described systemic scheme involves CDCR’s use of a ruse to misappropriate federal funds intended for MHSDS EOP programs, services, and activities, thereby using such funds to pay the salaries of its subordinates who directly supervise the EOP, subordinates who are correctional officers (C.O.s) providing security.

With the aid of the California Correctional Peace Officers Association (CCPOA), CDCR and RJDCF has manufactured a need for more C.O.s in the MHSDS EOP Psychiatric Services Unit (PSU), and divert federal funds intended for mental health programs, services, and activities, to custody, while these same custody C.O.s then convert the PSU into a ‘lounge area’ where surveillance cameras throughout the PSU, initiated by the Armstrong v. Newsom, no. 94-cv 02307-CW, injunction, regularly record C.O.s blatant inefficiency, hosting fiesta’s and other celebratory gatherings, and constant use of big screen televisions intended for MHSDS EOP groups, to watch sporting events and other shows. All this occurs in the PSU while on duty in direct violation of well established CDCR policy at California Code of Regulations, CCR. Title 15, sections 3394, and 3395.

With this described systemic scheme, C.O.s may continue to exploit the MHSDS EOP, profit from such, while CDCR continues to orchestrate the diminishing of mental health programs, services, and activities, blaming the failure on any and everything else except the truth, which is, despite being member of a protected class requiring mental health services and treatment, to CDCR and it’s employees we are only a financial asset. A prisoner’s mental health challenges are nothing more than a bargaining chip to use to extort more money from the federal government, to fund and fuel an already debauch state system.

Please Help Us!

MIM(Prisons) adds: Over 1.1 million people have died from the COVID-19 pandemic in the United $tates (more than from drug overdoses). This hit hardest among the elderly, those with pre-existing health conditions, and since the advent of vaccines, the unvaccinated. Strong resistance to vaccines among law enforcement has led to disproportionate deaths. Meanwhile many who could retired early. Like many industries, the state has struggled to replace the prison staff it has lost due to the pandemic.

This situation has allowed for extra leverage, from the already powerful CCPOA in California, meaning many are doing their jobs even less than before. People are sitting in their cells, people aren’t receiving care, people are eating sack lunches, and people aren’t getting access to grievances. And like so many capitalists have done during the last few years, the CDCR has cashed in on state funds that they do not deserve.

These are signs of a struggling system. The criminal injustice system is functioning worse and with less credibility than it has in decades. Meanwhile, greedy kleptocrats are stealing from the state, weakening it further. We must study these cracks in the system and find ways to operate that push the agenda of the oppressed through independent institutions.