Legal News. Working to Extend Democracy to All. Telemarketing and Computer Programs Crash at Utah Prison. by Roger Hummel - PDF

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PRISON Legal News VOL.12 No.12 ISSN Working to Extend Democracy to All Telemarketing and Computer Programs Crash at Utah Prison i, how are you doing? I am H fine. My name is David... If you will
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PRISON Legal News VOL.12 No.12 ISSN Working to Extend Democracy to All Telemarketing and Computer Programs Crash at Utah Prison i, how are you doing? I am H fine. My name is David... If you will be willing to go out with me, will you answer these questions honestly as to what you will be willing to do with me... holding hands, french kissing, fondling each other... and more explicit sexual suggestions. These lines were part of a letter written in February 2000 by Utah prisoner David Hunsaker, a convicted forger, to a 15-year-old girl he d never met. Hunsaker obtained the Utah teen s name and address from another prisoner who had talked with her while both prisoners worked as telemarketers From the Editor Inside Missouri Prison MothBalled Connecticut and Florida Voting Staff Shortage in Prisons Texas Jury Awards Arizona CCA Prison Turmoil Medical Neglect Suits Washington Sex Offender Laws WA Children Entitled to Education Habeas Hints Supreme Court Rules on Fees BOP Hit with $1.1 Million Verdict News in Brief by Roger Hummel for Utah Correctional Industries, the lucrative arm of the Utah prison system. The girl s mother intercepted Hunsaker s letter and sent it to Utah Attorney General Jan Graham. On April 13, 2000, while Graham was investigating, Utah prisoner Michael Moore, 43, was found dead in his cell, an apparent suicide. Moore, a software designer who had earned two college degrees while in prison, was under investigation for his part in an alleged UCI computer security breach at Utah s Point of the Mountain State Prison at Draper. The UCI computer security breach was apparently unrelated to the UCI telemarketing probe. UCI is a profitable operation with annual revenue of $12 million. UCI s success has funded additional prison staff positions and paid for technologically advanced offices and capital improvements that otherwise would have been impossible given the slow growth of the Utah state budget. Using the classic buy-low-sell-high business model, UCI buys prisoners labor on the cheap, then sells that labor to clients at a handsome profit. The Utah prison, like prisons across the country, is turning itself into a for-profit factory, cashing in on a tight labor market and public disenchantment with rehabilitation programs. UCI functions, in essence, as a convict version of Kelly Girls, leasing prisoners to companies in need of labor. Although the state must charge the employers market wages for prisoners labor, the employers offer no retirement, vacation, or health benefits; nor do they pay for Social Security, 1 workers compensation, or Medicare. Using prison labor can cut an employer s payroll costs by 35 percent. About 850, or 18 percent, of Utah s prisoners work for UCI according to the prison system s annual report. The figure for prisoners similarly employed nationwide is about 6 percent. Utah prisoners work under contract to private enterprises and state agencies where they perform tasks ranging from well paying, technically complex jobs to telemarketing to clothing manufacture. Prisoners who are employed by UCI perform a variety of tasks for state agencies including data entry for the State Tax Commission, the Department of Health, and the Utah Arts Council. Other prisoners copy historical files and blueprints onto microfilm. Still other prisoners are assigned to work as computer repair specialists. In Utah, as in most other states, the prison system acts as a labor contractor, billing the employer for the labor performed by prisoners. The state receives the revenue and disburses a portion to the prisoners. It is a violation of federal law for state prisons to sell their products in interstate commerce unless they are certified by a federal program known as Prison Industry Enhancement (PIE). Under the provisions of the PIE program, which was created in 1979, prisoners must be paid the same wages as free workers engaged in similar work. They must also be allowed to keep at least 20 percent of what the employers pay for their services. Up to 80 percent of their wages can be withheld for PUBLISHER Rollin Wright EDITOR Paul Wright EXECUTIVE DIRECTOR Donald W. Miniken Jr. EDITORIAL ASSOCIATE thomas sellman QUARTERLY COLUMNISTS Marilyn Buck, John Midgley, Mumia Abu Jamal, Walter Reaves, Kent Russell CONTRIBUTING WRITERS Lonnie Burton, Matthew Clarke, John Dannenberg, Bill Dunne, Roger Hummel, Gary Hunter, Julia Lutsky, James Quigley, David Reutter, Sam Rutherford, Roger Smith, Silja J.A. Talvi, Bob Williams, Mark Wilson, Willie Wisely, Robert Woodman & Ronald Young PLN is a Monthly Magazine A one year subscription is $18 for prisoners, $25 for individuals, more if you can afford it, and $60 for lawyers and institutions. Prisoner donations of less than $18 will be pro-rated at $1.50/issue. Do not send less than $9.00 at a time. All foreign subscriptions are $60 sent via airmail. PLN accepts Visa and Mastercard and orders by phone. New subscribers please allow six to eight weeks for the delivery of your first issue. Receipt of donations cannot be confirmed without an SASE, unless you have not received your first issue within the time allotment mentioned above. Ad rates are available on request. PLN is a section 501 (c)(3) non-profit organization. Donations are tax deductable. Send contributions to: 2400 NW 80th St., PMB 148 Seattle WA (206) Fax (206) Article submissions may be made directly to the editor: Paul Wright #930783, PO Box 7001, Monroe, WA Washington does not allow prisoners to correspond with other prisoners. Correspondence intended for PLN s editor should not list prison names or numbers in the address if it is for PLN s editor. We cannot return submissions without an SASE. Check our website or send an SASE for writers guidelines. Programs Crash, con t. income taxes, child-support obligations, room-and-board charges, and victim-assistance funds. UCI did not disclose a specific formula for distributing prisoners compensation, except that each prisoner is allowed to keep at least 20 percent of the amount the employer pays UCI for his labor. Letter-writer Hunsaker worked as a telemarketer for UCI client SandStar Family Films, a no-sex, no-violence, Utah-based motion picture distribution company. In February 2000, a 15- year-old Utah girl was home when another UCI telemarketer, working from a list of random names and telephone numbers, drew out the girl s address after delivering SandStar s promotional pitch. That prisoner, whom prison officials decline to identify, allegedly bartered the girl s information to Hunsaker while the two sat among a bank of telephones at the Point of the Mountain prison. Using that information, Hunsaker wrote to the girl. After receiving Hunsaker s letter, the girl s mother said her daughter worried about it for days wondering where she could go hide when Mr. Hunsaker gets out.... Our concern is how can we protect or prevent letters like this going to innocent young children? Jesse Gallegos, spokesman for the Utah Department of Corrections (DOC), noted that Hunsaker apparently did nothing illegal. Nevertheless, Gallegos said, prison officials screened Hunsaker s outgoing mail until he left prison in July In a similar event, April Jordan of Texas complained that an unidentified Utah prisoner telephoned her home in February The prisoner claimed he was working as a telemarketer for a private company. When he called, he got through to my daughter, said Jordan. He asked her age twice and then gave the information to other inmates. Jordan noted that the prisoner-telemarketer, whose name was never disclosed, asked her daughter for personal information that didn t seem appropriate for a telemarketing call, but she did not elaborate. 2 The Hunsaker and Jordan incidents occurred despite protections against such intrusion including the taping of prisoner calls, conversation monitoring, and prohibitions against prisoners writing down what they hear at their workstations. Ms. Jordan registered formal complaints with the Federal Trade Commission (FTC) and the Attorneys General of Texas and Utah. The nature of the telemarketing plan permits criminals to obtain and use personal data on individuals, including children, without any idea they are giving private information to criminals, Jordan told the FTC. Anyone who is called by a prisoner should be told that fact very clearly at the beginning of the first call and in every later contact, she said. The UCI telemarketing system was designed to allow prisoners only a brief conversation with randomly selected residents. The calls were placed by a computer and the prisoners did not see the telephone number being called. When a resident wanted to arrange further contact, the call was transferred to a company employee who was not a prisoner. These incidents and others compelled the Utah DOC and UCI to re-examine the practice of assigning prisoners to jobs where they might obtain personal facts about private citizens. In many respects, the telemarketing investigation parallels another prison probe launched when Michael Moore, the UCI prisonerprogrammer, purportedly killed himself before he could be interviewed in connection with his suspected role as mastermind of a computer security breach at the Draper prison. During a routine computer security audit early in 2000, classified files were found on the hard drive of an unnamed prisoner s workstation. Called 0-Trac (for offender tracking), the files were part of a database that stores names, addresses, Social Security numbers, and a criminal history of all probationers and parolees in Utah. The exhaustive forensic sweep of all prison computers which followed focused on the facilities operated by UCI. Five days after the investigation began, Moore was found hanging by a sheet in his cellblock, seemingly a suicide. Efforts to revive Moore failed. No suicide note was found. Moore s apparent suicide was particularly puzzling since, through his diligent and valued work for UCI, he had earned an early release date. Prior to the discovery of the purloined files, Moore had worked as a UCI programmer and had been housed with low risk, general population prisoners. Following the discovery, he was moved to a maximum security housing unit reserved for unruly prisoners and those who are under investigation for unspecified infractions. The suicide reportedly occurred in this maximum security housing unit. Moore had been in prison since 1982 for the murders of two men at a Utah restaurant. He had earned a March 9, 2004, parole date. A lawsuit filed in 1992 on behalf of Moore complained of difficulty receiving PLN. The suit ended with a $20,200 settlement. Computer experts from the Utah Department of Public Safety were called in to extract evidence of computer crimes or security breaches at Moore s computer workstation as well as workstations used by other prisoners. The experts findings were not made public. In June 2000, H.L. Haun, Executive Director of Utah DOC, announced that Utah prisoners would stop working as telemarketers within 90 days. Haun conceded that prison and UCI officials could not ensure that prisoners would not misuse the personal information on consumers that they obtained. Haun acknowledged that while UCI jobs may help prisoners rejoin society, these noble goals must take a back seat to public safety. We believe that no one s safety was compromised in these matters but we cannot tolerate situations where the community feels at risk due to this kind of inappropriate conduct, Haun said. UCI Director Dick Clasby commented that some 130 prisoners will lose their jobs when the telemarketing operation is terminated and the prison will lose up to $700,000 in revenue. The shutdown of the UCI telemarketing program is a close parallel to a similar shutdown of a Washington state prison telemarketing operation. That story was reported in the August 2000 issue of PLN. The highly profitable UCI telemarketing program thus came to an end on August 31, Meanwhile, the Salt Lake County Sheriff s Office continued its investigation of Moore s death. Further details have not been made public. Sources: The Salt Lake Tribune, the Wall Street Journal, Associated Press reports. Use of Force, Religious Diet Claims Set for Trial ANew York prisoner s 42 U.S.C lawsuit on First and Eighth Amendment violations survived three out of four summary judgment challenges by prison officials and moved closer to trial. On September 5, 1996, Abdul Majid, a prisoner at Sullivan Correctional Facility, was passing through a security checkpoint when Carol Behrens, a prison guard, confiscated his newspaper. Sgt. Tim Cherry, who was standing nearby, inexplicably became enraged and grabbed Majid by the arm and neck. An alarm was sounded, more guards arrived at the checkpoint, and Cherry directed the guards to throw Majid to the ground. Cherry joined the assault, and Majid suffered painful injuries to his knee. Thereafter, Majid was sentenced to four months confinement in Sullivan s Special Housing Unit (SHU). While in the SHU, Majid requested Deputy Superintendent Wayne Wilhelm to provide him with meals that complied with his Muslim dietary laws. Wilhelm denied the request. Majid then brought suit complaining of cruel and unusual punishment at the checkpoint incident, the newspaper confiscation, and denial of the religious diet. Prison officials sought summary judgment on all three claims as well as qualified immunity. First, Majid s claims of excessive force were nothing more than a good faith effort by guards to maintain discipline, according to prison officials. Unconvinced, the court found Majid s sworn testimony created material issues of fact to preclude summary judgment. Second, defendants summary judgment motion on the newspaper claim was granted because Majid had failed to comply with the Prison Litigation Reform Act s administrative exhaustion requirement and file a prison grievance before he brought suit. Third, the court found that personal involvement of a defendant is a prerequisite for damages under Unable to find that Wilhelm had no personal involvement in denying Majid s religious diet, defendants motion for summary judgment was denied. Finally, defendants claim of qualified immunity was defeated 3 when the court found it was not overly burdensome for defendants to provide Majid with meals, which satisfied his religious dietary laws. See: Majid v. Wilhelm, 110 F. Supp 2d 251 (SD NY 2000). Some readers have recently contacted PLN after letters they sent to our Seattle address were returned to them by the post office marked undeliverable as addressed. PLN s address has not changed. Inquiries with the post office have not been very helpful. Postal officials have told us that the mail situation has been hectic since September 11, and have left it at that. If any mail you sent to PLN has been returned for any reason, send it again or contact us by phone, fax or . Starting in late August of this year, a number of PLN subscribers have received letters from former contributing writer Dan Pens making a variety of outrageous allegations against me and other PLN board members. Dan s letters are the culmination of a five month attempt on his part to extort $2,500 from PLN. When his blackmail demands were not met, he carried through on his threats to slander me and other PLN board members. In February, 2001, Fred Markham, PLN s former office manager, disappeared after stealing most of PLN s money, destroying PLN s financial records, turning off our phones and stealing one final delivery of mail. [See April, 2001, PLN for details.] Dan Pens resigned from PLN shortly thereafter, claiming he had never liked me and because Fred s thievery was reported to local police (who have yet to do anything about it). Fred s embezzlement was reported to the police because not doing so would expose PLN to criminal and civil liability for Fred s actions. This was based on the advice of PLN s tax advisor and two Seattle attorneys, one specializing in criminal defense, the other in tax law. Fred defrauded a number of other businesses before disappearing. He also failed to file PLN s tax report for 1999 and 2000 with the IRS, which we have since done. Dan offered no solutions or suggestions on dealing with Fred s thievery. PLN s board feels we owe PLN a fiduciary duty to attempt to recover PLN s money, which ultimately is our subscribers money. From the Editor by Paul Wright Starting in April, Dan began to demand money from PLN in exchange for various materials he still has which belong to PLN (i.e., source materials for articles, completed articles, reader letters, PLN mailing lists, grant applications and donor information). Eventually, Dan resorted to demanding $2,500 from PLN, threatening to write to all foundations that have given grants to PLN in the past or might in the future; to PLN donors and supporters and prison activists, with claims of misconduct on the part of board members. PLN refused to give Dan a penny because his allegations (for which he admits he has no evidence and which he claims is based on statements given to him by Fred and his associate Gary Taylor Rose) are false. Interestingly, it doesn t appear that Dan has sent his slander letters to people who know me personally. One issue in confronting this type of defamation is that by responding to it at all, we spread it further than it might go on its own. Frankly, some claims don t deserve the dignity of a response. On the other hand, we don t want anyone to interpret silence on our part as an admission of guilt or wrongdoing, just as paying blackmail money would be. PLN will soon post its financial statements for 1999 and 2000 on its website, Because Fred Markham destroyed PLN s financial records for 1999 and 2000 to cover up his thievery, the records for those years have been reconstructed by a CPA working with PLN s Seattle bank representative and is based on the actual checks written on PLN s checking account and deposits made into it. From now on, PLN will post this information on its website each year. PLN offered to show Dan its financial records, including all cashed checks from 1999 through earlier this year, to prove that neither I nor anyone other than Fred Markham has misappropriated any money belonging to PLN. At first Dan said he wanted to review the materials, but when a Seattle attorney made an appointment to visit him with the records 4 he changed his mind and said he did not want to review them, preferring to blackmail PLN despite knowing the falsity of his claims. For its part, PLN is suing Dan Pens for extortion, conversion, interference with business relationships, libel, slander and defamation. Over the years, we have seen a lot of groups get involved in bitter internal disputes involving allegations and counter allegations that are difficult for an outsider to decipher. By taking this matter to court we can present our side of the story to a neutral party to decide who is telling the truth after reviewing the evidence. Anyone desiring a copy of the complaint and exhibits, which include Dan s extortion letters, can send $5 to cover our copying and postage costs. We will send a copy to anyone who received the slander letter from Dan at no cost. See: v. Pens, King County Superior Court, Case No For those people who received a slander letter from Dan Pens, please feel free to contact me or the PLN office if you have any questions or concerns whatsoever. I don t just encourage you to voice your concerns, I urge you to do so. From the outset, organizations involving prisoners tend to have credibility problems. I had been proud of the fact that PLN has faithfully served its readers and supporters. I have always viewed financial donations from our supporters as a sacred trust whereby people entrust PLN with their money to advance the cause of human rights in the U.S. That is one of the reasons I was both devastated and angry upon learning of Fred s embezzlement of
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