Tag Archives: prison discipline

5th Circuit Parses Heck v. Humphrey – Update for November 23, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHAT THE HECK? CIRCUIT RULES ADVERSE PRISON DISCIPLINARY DECISION DOES NOT BLOCK SUIT

heck211123State prisoner Darvin Santos sued prison officers for using excessive force against him in violation of his constitutional rights. The alleged excessive force was used during an altercation between Darvin and officers that resulted in his being found to have violated a laundry list of prison rules.

The district court granted summary judgment for the correctional officers, holding that Darvin’s claims were barred by Heck v. Humphrey.

lobster211123Heck, a 1994 Supreme Court case, holds that a defendant can’t sue officials for damages for investigative or prosecutorial violations of rights incident to a prosecution, unless he or she could prove that the conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a habeas corpus decision. This means, for example, that if the cops smash down my door without a warrant and find evidence that I have been importing under-length lobsters, which evidence is used to convict me, I cannot do my time and then sue for money damages because of the illegal search. Heck thus prevents a lot of costly and frivolous litigation.

Darvin’s district court extended Heck to a disciplinary proceeding, holding that unless he could show the disciplinary proceeding resulting from the incident where the excessive force was used had been overturned, Heck barred his lawsuit.

As a general proposition, this holding is pernicious. The standard of evidence for a criminal conviction – reasonable doubt – provides some protection against a defendant having been railroaded into a conviction that prevents a later civil action judged under the more relaxed “preponderance of the evidence” standard. But the standard of evidence for a prison disciplinary hearing is the laughably slight “some evidence” standard. That is, as the Supreme Court puts it, there only has to be “some evidence” to support the charge:

Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence… might be characterized as meager, the record [only cannot be] so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.

sunwest211123I have “some evidence” that the sun’s going to rise in the west tomorrow. Holding that a prisoner’s right to vindicate a civil rights violation because of a kangaroo-court prison disciplinary hearing found him or her guilty on such a gossamer evidentiary standard is downright dangerous.

Last week, the 5th Circuit reversed Darvin’s dismissal, but not for the reasons I prefer. Rather, the 5th noted that Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.” Instead, a claim is barred only if granting it “requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.”

Here, the 5th said, it isn’t clear from the record whether any of Darvin’s claims were barred by Heck. Darvin was found guilty of nine rules violations, but only one – a charge of “aggravated disobedience” – might be inconsistent with his claims. As for that one, the Circuit said, the disciplinary report “does not currently permit that inference.”

Furthermore, the disciplinary sanctions imposed (except for loss of good-conduct time) only bear on the circumstances of confinement rather than on the duration. A decision that imposes such sanctions (like loss of telephone privileges, access to commissary, and the like, for a period of time) are not barred by Heck, the Circuit said.

Santos v. White, Case No. 20-30048, 2021 U.S. App. LEXIS 34120 (5th Cir., November 17, 2021)

– Thomas L. Root

Even as Inmates, Women Are Worse Off Than Men – Update for March 5, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FEMALE PRISONERS PUNISHED MORE OFTEN FOR LESS, REPORT SAYS

The U.S. Commission on Civil Rights last week released a report finding that many incarcerated women experience physical and psychological harms disproportionate to those suffered by male inmates, with insufficient respect for their constitutional rights.

womenprison170821The report concluded that incarcerated parents permanently lose parental rights at higher rates than parents whom courts find to have neglected or abused their children but are not incarcerated; that despite the Prison Rape Elimination Act, sexual abuse and rape remain prevalent against women in prison; and that incarcerated women are often given disproportionately harsh punishments for minor offenses compared to incarcerated men, leading to time spent in segregation and loss of good-time credits for minor violations of prison regulations, and disproportionately harsh punishment for offenses such as “being disorderly.” Men, on the other hand, tend more often to be punished for violence.

“What we saw was that women themselves are substantially more likely [than men] to be subject to disciplinary practices for minor infractions,” says USCCR chair Catherine Lhamon. “Those minor offenses include “being what’s called insolent, or disobeying an order, or swearing.” An NPR/Medill School of Journalism study in 2018 found that women were disciplined at more than twice the rate of men for minor prison rule infractions.

The USCCR report found that prison officials, supervisors, and correctional officers are inconsistently trained on the prevalence of disproportionate punishment of incarcerated women and evidence-based disciplinary practices.

U.S. Civil Right Commission, Women in Prison: Seeking Justice Behind Bars (Feb 26)

NPR, Federal Report Says Women In Prison Receive Harsher Punishments Than Men (Feb 26)

 

– Thomas L. Root

We’ve Got the Shorts – Update for August 29, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE SHORT ROCKET

Inmate has Right to Video at DHO

rocket190620The 4th Circuit held last week that an inmate defending himself in a disciplinary proceeding, where he could lose good time as a punishment, has a qualified right of access to BOP video surveillance evidence and the qualified right to compel official review of such evidence. The Court relied on Wolff v. McDonnell, a 1974 Supreme Court decision defining the extent of inmates’ procedural due process rights in disciplinary proceedings.

Lennear v. Wilson, 2019 U.S. App. LEXIS 25340 (4th Cir. Aug. 23, 2019)

Transgender Inmate Has 8th Amendment Right to Surgery

The 9th Circuit last week held that an Idaho state inmate had shown that he suffered from gender dysphoria (believed he was a different gender than his body reflected), that his need for surgery to change his gender was a serious medical need, and that prison authorities had not provided that treatment despite knowledge of his ongoing and extreme suffering and medical needs. The Court rejected the State’s position that there was a “reasoned disagreement between qualified medical professionals. The Court emphasized that its analysis was individual to the inmate plaintiff, “and rested on the record of this case.”

Edmo v. Corizon, Inc., 2019 U.S. App. LEXIS 25330 (9th Cir. Aug. 23, 2019)

Murder Most Foul… But Not Violent

violent170315The 9th Circuit last week also held that 2nd-degree murder (18 USC §§ 1111 and 1153) is not a crime of violence that can support an 18 USC § 924(c) conviction. The Court held that because 2nd-degree murder can be committed recklessly, it does not categorically constitute a “crime of violence” under the elements clause (924(c)(3)(A)), and under the Supreme Court’s June United States v. Davis decision, the crime likewise cannot constitute a crime of violence under the residual clause.

Begay v. United States, 2019 U.S. App. LEXIS 25196 (9th Cir. Aug. 22, 2019)

Serving Mankind Has Its Limits

The 2nd Circuit ruled last week that a supervised release condition that a defendant perform 300 hours of community service a year during supervision exceeded the Guidelines and was not reasonably related to any of the applicable purposes of sentencing listed at 18 USC § 3553(a), and involved a “greater deprivation of liberty than needed to effectuate the goals of sentencing.” The Court concluded that USSG §5F1.3 advised sentences to not call for more than 400 hours of community service as a condition of supervised release.

Hoodie reading 'Crime and community service'.What’s more, the community service, imposed on a defendant convicted of insurance fraud, was not reasonably related to any relevant sentencing factor and involved a greater deprivation of liberty than is reasonably needed to achieve the purposes of sentencing. The district court observed the defendant lived with his parents, has a young daughter, worked as an Uber and Lyft driver, and “was convicted of two serious crimes of fraud which adversely impacted the community at large.” But, the 2nd Circuit complained, the sentencing court did not explain how the defendant’s “particular circumstances‐‐his criminal history, his cooperation, the nature of his offense‐‐reasonably related to the need for community service.”

United States v. Parkins, 2019 U.S. App. LEXIS 24563 (2nd Cir. Aug. 19, 2019)

– Thomas L. Root

Shut My Mouth! – Update for November 21, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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THE NIGHT THE LIGHTS WENT OUT IN TEXAS

A federal prison in Texas, like a lot of joints around the country, suffers from frequent power outages. Derrick Brunson (who has since been released) filed an administrative remedy request with prison administrators, expressing his concern over security due to the lights going out all the time and asking that something be done about.

work171121Derrick’s counselor quickly responded to his filing. She complained that he was “just putting more work on her desk.” In response to Derrick’s filing, she wrote him up for threatening her, filing a disciplinary report  known in federal prison parlance as a “shot.”  Derrick was promptly thrown into the SHU – the “Special Housing Unit” – for three weeks while awaiting a hearing in front of a Disciplinary Hearing Officer.

In due course, he was found guilty of the “shot” and was given 7 days in disciplinary segregation and a loss of some good time credits he had previously earned.

shutmouth171121After his 28 days in the SHU, Derrick appealed the finding of guilt, and his appeal fell on the desk of cooler heads. The DHO’s finding was reversed, and the “shot” was expunged. After that, Derrick – who justifiably felt that he had been punished for exercising his 1st Amendment rights in a completely reasonable way – brought a Bivens action against prison staff for a retaliation conspiracy against him for speaking out.

The district court dismissed Derrick’s complaint, holding that his conspiracy claim was “conclusory” and his seven days in seg was too insignificant an injury, “de minimis” as the courts like to say.

shu171121Last week, the 5th Circuit reversed.  The appellate court held the district judge should not have ignored the 21 days Derrick spent in the hole waiting for a hearing. “Taking the 21 days in the SHU and the seven days of disciplinary segregation together,” the Court said, “the alleged retaliatory act lasted at least 28 days, which is certainly… not de minimis.”

The 5th found it significant that the shot was later expunged, because that suggested the counselor “lacked any basis for initiating the charge.”  And Derrick’s conspiracy claim was not “conclusory,” the Court said. He alleged that while he was in the SHU, the Captain told him, “You didn’t think I know the lights are an issue? You are not going to make threats.”  A lieutenant then said, “Thanks for telling us how to do our jobs, you want to tell us how to do our jobs things go downhill for you.” 

tapemouth161230When Derrick pointed out that the incident report did not state a violation, the Captain responded, “Well, when I talk to the DHO we’ll see if he can articulate” one. The DHO subsequently changed the charged offense from “threatening” to “refusal to obey an order.” 

The Circuit held that “these facts suffice to state “an agreement to commit an illegal act which resulted in the plaintiff’s injury.”

Brunson v. Nichols, Case No. 14-31350 (5th Cir. Nov. 15, 2017)

– Thomas L. Root

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