by Christopher Zoukis
The United States Court of Appeals for the Seventh Circuit has refused to remand a case for further fact-finding about the government's use of cell-site simulators during investigations.
Damian Patrick was wanted for violating parole. In an effort to locate him, Milwaukee police obtained a search warrant which authorized the use of cellphone data. The warrant specifically authorized the collection of data from Patrick's cellphone service provider in order to locate him. Unbeknownst to the magistrate that issued the warrant, the Milwaukee police employed a cell-site simulator, also known as a Stingray, in order to find Patrick.
When Patrick was located, he was in the passenger seat of a car. A gun was in plain view, and he was ultimately charged and convicted of being a felon in possession of a firearm. He appealed the conviction, arguing that his arrest was unlawful. Patrick initially made no argument about the use of a Stingray device, because the government did not reveal its use until after he filed his opening brief.
The appellate court found the arrest to be lawful, because the Milwaukee police "were entitled to arrest him without a warrant of any kind, let alone ...
by Carrie Wilkinson
The Human Rights Defense Center (HRDC) submitted a formal comment on three Federal Communications Commission dockets on August 9, 2017, accusing FCC Chairman Ajit Pai, who formerly represented prison telecom giant Securus Technologies, Inc., of having a conflict of interest. In its filings, HRDC noted that “not only does Mr. Pai’s conduct give the appearance of a conflict of interest, there appears to be an actual conflict.”
In a 2011 questionnaire submitted by Pai to the U.S. Senate Committee on Commerce, Science, and Transportation prior to his initial nomination hearing to become an FCC Commissioner, he stated that as an attorney he had performed legal work for Securus and described the company as one of his clients when he worked for the law firm of Jenner & Block. Pai was confirmed by the Committee and joined the FCC as a Commissioner in May 2012.
Since then, Pai has vigorously and consistently taken action to undercut all efforts to impose federal regulations, including rate caps, on the Inmate Calling Services (ICS) industry, which benefits Securus – his former client – as well as other ICS providers. The lack of federal regulation guarantees Securus the ability to ...
by Lonnie Burton
On June 24, 2016, the Supreme Court of Iowa rejected the appeal of man who claimed his Sixth Amendment right to counsel was violated when he was denied the right to make a private phone call to his attorney for advice as to whether he should comply with or refuse a chemical breath test. The state's high court found that no such right to counsel attaches prior to the initiation formal charges.
John Arthur Senn, Jr. was arrested on Labor Day 2014 for suspicion of driving under the influence of alcohol. A preliminary breath test issued at the scene showed that Senn had a blood alcohol content of 0.165, more than twice the legal limit in Iowa. Senn was arrested for failing to obey a traffic signal and drunk driving and transported to the Des Moines police station for a chemical breath test.
At the station, Senn asked to call a lawyer for advice on whether to consent to the breathalyzer. Under Iowa law, am arrestee has one hour to comply with the test, or face an automatic two-year suspension of his driver's license for a refusal. Senn had trouble reaching his own attorney ...
by Lonnie Burton
Attorney Donald York Evans and his client John Witherow, a Nevada state prisoner, filed a federal civil rights lawsuit challenging the monitoring of privileged phone calls between them. After lengthy proceedings the suit was dismissed.
The Nevada Department of Corrections (DOC) has a policy of initially screening attorney-client phone calls then occasionally checking in on the calls. The justification is to make sure the privileged status of the calls is not being abused to allow unmonitored communications with third parties or the passing of contraband information such as escape plans.
The defendants included three prison phone providers and DOC officials. The claims were numerous, including Fourth and Fourteenth Amendment due process violations and violations of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2251. The court dismissed Evans and the phone companies from the suit and granted defendants summary judgment on most of the remaining claims. A jury decided against Witherow on the remaining claim--whether the initial screening violated the ECPA. Witherow appealed.
The Ninth Circuit reversed, holding that the district court should have used the "normative inquiry" approach instead of the "reasonable expectation of privacy" approach when analyzing Witherow's Fourth Amendment claims ...
by William T. Habern, David P. O’Neil, and Debra Bone
For over 30 years our firm has represented offenders and their families in prison and parole administrative and legal issues. The first version of this article was published in the Voice more than 20 years ago. But the Texas prison system changes so often we periodically update this material so that Texas lawyers and their clients and families know what to expect when a client must “do time.” The purpose is to reduce the fear and uncertainty every “first timer” (and their loved ones) anticipate after realizing he/she is going to prison—and how to conduct themselves once there.
In the past our law firm held private seminars for families and defendants who faced prison time. In the mid-’80s we backed away from doing that work as we were too busy with other types of cases. In the mid-’90s, as our firm expanded, we again started offering individual counseling seminars to clients and families prior to a family member leaving to serve a prison term. We hope the general information we provide will be of assistance to attorneys, their clients, and their clients’ families. In fact, often it’s ...
The Oregon Court of Appeals held on August 17, 2016 that the consensual use of another prisoner’s telephone PIN does not constitute the crime of identity theft under state law.
Jacob Thomas Ritter was incarcerated at the Marion County Jail, awaiting trial on domestic violence charges against his girlfriend.
The jail contracts with Telmate to provide telephone services, and the Telmate system features a two-step security process that prisoners must complete to make a call. Upon booking, each prisoner is assigned a unique personal identification number (PIN) that must be entered to access the phone system. He or she is then required to record a voice password, which Telmate’s voice recognition software compares to the voice of the person making calls with that PIN. If the voice matches, the call proceeds; if it doesn’t, the prisoner cannot make a call.
Jail policy prohibits prisoners from attempting to evade Telmate’s security protocols. The Inmate Handbook warns that “unauthorized telephone use” is subject to disciplinary action; that is, a prisoner may be punished for “using another inmate’s PIN, using another inmate to make calls, or any other activity that circumvents the phone system.” A notice posted near the phones warns: “Use ...
by Christopher Zoukis
A disturbance at Alaska's Lemon Creek Correctional Center left a housing unit uninhabitable after prisoners and guards clashed over the prison's excessive telephone rates, a "smartmouth" guard's comments on the subject, and other issues.
According to prisoners formerly housed in the dorm, on October 9, 2015, between 9 and 10 p.m., prisoner telephone calls were abruptly cut off and, fed up with the excessive phone rates, several prisoners became agitated by the fact that they would be charged for the calls anyhow. When a guard commented on the matter in an insulting manner, tensions were escalated. "This was triggered by a smartmouth and these outrageous phone charges, said Chris Davidson, a prisoner now in more secure confinement in an interview with the Juneau Empire newspaper. "That sparked the whole god damned thing."
In September, 2014, the Alaska Department of Corrections instituted a new telephone system operated by a Texas-based provider called Securus. The new system allows prisoners to call cellphone numbers, which were previously blocked, but it is more cumbersome to use and more expensive than the previous system. Alaska now charges prisoners $1.00 for a 15 minute local call, and long-distance ...
by Carrie Wilkinson
In a September 2016 article on the fight for comprehensive prison and jail phone reform, PLN reported that while limits on ancillary fees had been implemented by the FCC, intrastate (in-state) rate caps were stayed by the D.C. Circuit Court of Appeals after the FCC’s order was appealed by Global Tel*Link, Securus and other Inmate Calling Service (ICS) providers as well as various corrections officials. [See: PLN, Sept 2016, p.26].
As a result of that appeal the intrastate rate caps never went into effect, though interstate (long distance) rate caps ordered by the FCC in 2013 remained in place, at $.25/min. for collect calls and $.21/min. for debit and prepaid calls. Thus, in some cases – particularly local jails –unregulated in-state phone rates are much higher than long-distance rates. Within state prison systems, intrastate rates range up to $5.70 for a 15-minute call (in Kentucky), though in 22 states they are $.11 per minute or less.
Shortly before oral argument was scheduled in the D.C. Court of Appeals, counsel for the FCC advised the Court that due to a change in the composition of the FCC (resulting from the new ...
by Matt Clarke
On March 31, 2016, U.S. District Court Judge Shira A. Scheindlin granted final approval to a historic settlement between the New York Civil Liberties Union (NYCLU) and New York State that will usher in comprehensive reform of disciplinary solitary confinement in the state’s prison system. The reforms will result in the removal of over 1,100 prisoners from solitary.
LeRoy Peoples, DePayne Richardson and Tonja Fenton filed individual federal civil rights lawsuits that were consolidated into a class-action challenging conditions of confinement in disciplinary segregation in New York state prisons. PLN previously reported the settlement when the district court gave it preliminary approval. [See: PLN, Dec. 2014, p.42]. The court has now signed off on the agreement.
Expressing deep gratitude to the attorneys on both sides for working together to craft a settlement that reduces the prevalence of solitary confinement and improves conditions when it is utilized, the court noted that “such confinement causes the deterioration of the mental and physical condition of the inmates.” It also pointed out that, although the settlement involved only disciplinary solitary confinement, prisoners in administrative segregation would also benefit from improved conditions.
The agreement provides for a reduction ...
by Paul Wright
For the past 30 years, as mass incarceration rates have skyrocketed, so has the number of prisoners infected with hepatitis C (HCV). This is in part because so many prisoners are current or former intravenous drug users, and so much time and energy is spent arresting and imprisoning poor drug users. Illicit drug use behind bars and tattooing with dirty needles also contribute to the spread of HCV among prisoners.
For decades, prison officials have adhered to a policy of refusing to treat prisoners with HCV who were not exhibiting symptoms, claiming they were not yet in need of treatment, then once the prisoners were very ill they would refuse to provide treatment because it was too late or too expensive to do so.
With the recent advent of new drugs that can cure HCV with few debilitating side effects and shorter treatment regimens, the only excuse prison officials have for refusing to provide treatment is the high cost. Yet as repeatedly reported in PLN, when it comes to obtaining drugs to kill prisoners via lethal injections, many states will spare no effort or expense – purchasing execution drugs from compounding pharmacies and far-away countries like India ...