Understanding the Limitations of the Consent Decree

Wading through the mire that is legalese isn't an easy task. I hope that I am able to shine some light on the framework that the courts must work within when dealing with correcting unconstitutional prison conditions. I'll try to not veer off the topic.

I always recommend reading the laws and cases for yourself. The restrictions I speak of now can be found in United States Code Annotated, Title 18- Crimes and Criminal Procedure, Part II- Criminal Procedure, Chapter 229- Postsentence Administration, Subchapter C- Imprisonment, 18 U.S.C.A. §3626, which has been effective since November 26, 1997.

§3626 is no joke, and it begins setting limits with its first lines:

Appropriate remedies with respect to prison conditions
  (a) Requirements for Relief.--
      (1) Prospective relief.--

          (A) Prospective relief in any civil action with respect to prison

          conditions shall extend no further than necessary to correct the

          violation of the Federal right of particular plaintiff or plaintiffs.

          The court shall not grant or approve any prospective relief unless

          the court finds that such relief is narrowly drawn, extends no

          further than necessary to correct the violation of the Federal

          right, and is the least intrusive means necessary to correct the

          violation of the Federal right. The court shall give substantial

          weight to any adverse impact on public safety or the operation

          of a criminal justice system caused by the relief.

The courts are being told to grant the least amount of relief possible; just enough to correct the problem. And if the possible changes might be too costly or might effect public safety (as with releasing prisoners due to overcrowding), it's possible the courts won't grant relief at all.

A rash of prisoner lawsuits, many of which were frivolous, precede the laws and decisions that severely limited suits brought by prisoners. The Prison Litigation Reform Act set the stage and was followed by 18 U.S.C.A. §3626. Since then, more and more hurdles have been set up to obstruct prisoner litigation.

As I mentioned in the post titled, MDOC To Be Released From Presley v. Epps Agreement, one of the things that is limited is how long court ordered or enforced relief can last. The relevant subsection of §3626 reads:

(b) Termination of Relief.--
    (1) Termination of prospective relief.--
        (A) In any civil action with respect to prison conditions in which
        prospective relief is ordered, such relief shall be terminable upon
        to motion of any party or intervener--
            (i) 2 years after the date the court granted or approved the
            prospective relief;
            (ii) 1 year after the date the court has entered an order denying
            termination of prospective relief under this paragraph; or
            (iii) in the case of an order issued on or before the date of
            enactment of the Prison Litigation Reform Act, 2 years after
            such date of enactment.

This is why, two years after the final modification of the consent decree, it had to be dismissed without prejudice. And now that Unit 32 has been closed down, the conditions there are a moot point. It was agreed upon between the plaintiffs and defendants in the Presley v. Epps suit that the standards for the Presley class would follow the class members wherever they were moved in the process of closing Unit 32.

Unit 32 Consent Decree Voluntarily Dismissed

Years of litigation was effectively brought to an end with the planned termination of the Presley V. Epps Consent Decree on August 2, 2010.  Magistrate Judge Jerry Davis, who presided over the Fairness Hearing, was well pleased with the outcome and all the progress that had been made.

Judge Davis was effusive in his praise of all parties involved, but especially so of Commissioner Christopher Epps and Deputy Commissioner of Institutions E.L. Sparkman.  And rightly so, since they'd put their careers on the line in the gamble to change the conditions at Unit 32 instead of deciding on a prolonged legal battle through the courts.

Also present at the hearing: Leonard Vincent and Jim Norris, counsel for the Mississippi Department of Corrections; DCI E.L. Sparkman; Margaret Winter, Associate Director of the National Prison Project of the ACLU, and Stephen Hanlon of Holland & Knight LLP, counsel for the Plaintiffs.  Present via closed-circuit camera at the Mississippi State Penitentiary's "mock court": Jeff Davis and Richard Jordan, both death row prisoners; Roy Harper and Steven Farris, state prisoners housed at Unit 32; and Angelo Bullerd, housed at Unit 29.

There was an informal feel to the proceedings as Mr. Sparkman took the stand, was sworn in, and Ms. Winter questioned him about issues the Presley class members had raised.  The main concerns were whether or not the rights secured in the Consent Decree would continue, and whether they would follow the class members wherever they were moved as Unit 32 is closed.  The prisoner feared the Consent Decree would be dismissed and it would just start the whole process and struggle over from the beginning.  These fears were allayed and they were assured the rights secured would continue.  For more on this and the reasons for closing Unit 32, click here.

Things look promising, so far.  Only time will tell though, and I will keep you updated if at all possible.
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MDOC Plans To Close Unit 32 At Mississippi's State Penitentiary

At the April 12, 2010 hearing held at Aberdeen's Federal Courthouse, the Mississippi Department Of Corrections announced its intention to close Unit 32 over the next year or so, subject approval by the State Legislature.

Before April 12th, the MDOC had shown no interest in a settlement. However, at the April 14th session presided over by Magistrate Judge Jerry Davis, MDOC consented to work on a settlement agreement with the National Prison Project of the ACLU. At that time the agreement was to be in final form by June, whereby both parties would assent that the consent decree would be dismissed without prejudice.

The Plaintiffs (NPP and prisoners) will be allowed to bring a motion in February of 2011 to restore the case to the court's active calendar if the Defendants (MDOC) haven't made certain specified improvements by that time concerning medical and mental health care at Unit 32. If the Unit is closed before then, this will be a moot point.

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A Description of the Presley v. Epps Consent Decree

A consent decree as defined by Random House Webster's Dictionary of the Law, is "a court order entered between a federal agency and a party accused of illegal conduct in the field regulated by the agency, resolving the case and typically including a promise by the party not to engage in certain activities in the future."

In this case the MDOC knew they were in a no-win situation. They could fight the lawsuit, drag it out in court for as long as possible -maybe years- and waste a lot of the taxpayers' money as they normally do. Or they could go ahead and agree to do what they would eventually have to do anyway. Commissioner Christopher Epps and Deputy Commissioner E. L. Sparkman did the smart thing. They also agreed to some things that they would not have had to do, had they chosen to battle it out in court.

The lawsuit was filed in June of 2005 by the National Prison Project of the ACLU and Holland & Knight, LLP, on behalf of four individual prisoners seeking relief for all prisoners confined in Unit 32 of the Mississippi State Penitentiary at Parchman, MS. Those four prisoners are Jeffery Presley, Dennis Brumfield, Steven Farris, and Marcus Williams.

MDOC, as the suit claimed, was subjecting those of us in Unit 32 to inhumane living conditions and excessive force, depriving us of medical and mental health treatment, and denying us procedural due process in housing us at Unit 32. We asked for an injunction guaranteeing improved conditions for all prisoners housed in Unit 32, and that the suit be recognized as a class action, so that any remedy we got would apply to all prisoners there.

The consent decree was drafted in February of 2006 and made official not long after. It requires MDOC to do the following:

(A) ensure that the cell to which a prisoner is moved is clean prior to the move and provide adequate cleaning supplies and equipment;

(B) From May through September, ensure that each cell throughout Unit 32 is equipped with a fan, and provide a 32-ounce cup of ice to each prisoner in Unit 32 three times a day;

(C) Ensure that each prisoner is allowed to take a shower every day, six days per week, year round;

(D) Implement an effective mosquito eradication and pest control program;

(E) Eradicate the problem of "ping-pong" toilets in every cell in Unit 32;

(F) Make sure that there is adequate lighting in every cell;

(G) Make sure that the medical services provider delivers adequate medical care for serious health needs;

(H) Ensure that medical service providers do not require prisoners to make unreasonable co-payments for services;

(I) Provide appropriate care for patients with chronic diseases;

(J) Provide appropriate off-site medical consultation, hospitalization, and specialty care for patients in need of those services;

(K) Provide adequate mental health care;

(L) Provide housing for prisoners with psychosis and severe mental health illnesses seperate and apart from all other prisoners that is appropriate in light of their special needs;

(M) Prevent excessive risk to prisoners of staph infection;

(N) Ensure that food trays are properly cleaned and sanitized prior to food service, that food portions are adequate, and that food is served at appropriate and safe temperatures;

(O) Allow prisoners out-of-cell exercise and complete the new exercise pens no later than July 1, 2006;

(P) Reasonably ensure that all incidents of major force by correctional staff against prisoners are thoroughly investigated and documented, and that the use of excessive force is not tolerated;

(Q) Provide all prisoners who are assigned to Unit 32, and not sentenced to death, with prior notice of the factual basis for the assignment to Unit 32, a hearing, an opportunity to appeal, and at least a semi-annual review with the same rights of notice, opportunity to be heard, and appeal;

(R) Formulate and implement a plan whereby all prisoners who are assigned to Unit 32 and not sentenced to death may, through good behavior and a step-down system, earn their way to less restrictive housing.
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MDOC To Be Released From Presley v. Epps Agreement?

After two years of being bound by agreement enforceable in court, the Mississippi Department of Corrections has petitioned to be released from the Consent Decree reached in the Presley v. Epps case. The attorneys for the MDOC are telling the court and anyone else who will listen that the MDOC has not only met, but has exceeded everything set out in the Consent Decree that was to be done. That's not true. I agree that many things have improved, for awhile. However, the only thing consistent about MDOC is its inconsistency. Parchman in particular has a long history of needing the courts to force them to do what they are supposed to.

What I'd like you to think about for a moment is just why MDOC is so anxious to be released from this agreement. If everything is so great, if all the wrongs have been righted and so much more, why the rush? Do they wish to be out from under the scrutiny of the ACLU and the court because they want things at Unit 32 to return to the pre-agreement chaos?

I spoke of these things with Mr. Stephen Hanlon on January 13th, during his visit to the Mississippi State Penitentiary's Unit 32. Mr. Hanlon is an attorney working along with the National Prison Project of the ACLU in the Presley v. Epps case. One of the things Mr. Hanlon explained to me is that, following the Prison Litigation Reform Act of 1996, consent decrees are only good for two years.  [click for more]  The courts find it difficult to justify going beyond the two year limit because of the standards that must be met. Conditions that are "shocking to the conscience" are part of it.

It must be said that conditions have greatly improved in Unit 32. If it weren't for Ms. Margaret Winter, the Associate Director of the National Prison Project, and Magistrate Judge Jerry Davis who presided over and mediated the case, these changes would not have been possible. They have the thanks and appreciation of all the people -prisoners and guards- who had to live and work in the inhumane conditions at Unit 32.

These same people now face the possible return to those inhumane conditions. Without the ACLU and the courts keeping close watch, MDOC's inherent state of entropy will take effect and all the improvements will vanish. Once again the prisoners will have to struggle to retain their most basic rights.

You can follow the events in the Presley v. Epps case by continuing to read this blog. If a settlement isn't made between the MDOC and the ACLU, a court hearing is scheduled for April 21st.

What are your thoughts? Should the Consent Decree be extended? Should MDOC be released from the agreement?
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