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Parole board specializes in making mistakes
Posted by Marletta to South Dakota Prisoners Support Group
Guest Column
By Hazel Bonner
We have heard recently about the woman, Nicole Figg, who sat in the
South Dakota Women's prison for 416 days after her sentence ended,
complements of the State Board of Pardons and Paroles, who,
incidentally, charged her for room and board while she was being
held illegally.
There was another egregious case of parole revocation in South
Dakota. In 1991, the SD Board of Pardons and Paroles revoked parole
and took good time away from a black man living in Charleston, South
Carolina. The problem: his parole had ended almost a year earlier.
No matter, the state extradited him to South Dakota to serve out a
sentence that had expired. He was to be in prison until 1995. That
man spent more than two years in the South Dakota State Prison in
spite of the fact that his sentence had been discharged almost a
year before the revocation occurred.
He challenged the action to the parole board, when he was
spirited out of South Carolina back to South Dakota, to no avail. In
late 1992 he filed a writ of habeas corpus in Federal District Court
in Sioux Falls. In May 1993, Judge John Jones ruled that he was
being held illegally and ordered his release from prison. The ruling
stated that there can be no revocation of parole after a period of
parole has ended. Now that shouldn't take a rocket scientist to
figure out. Apparently our parole board and attorneys for the State
have trouble with the concept.
The state of SD, being notoriously bad losers, sought a stay
on the order pending appeal. Of course, in order to get a stay and
hold the young man in prison illegally for a longer time, they had
to have a likelihood of winning on appeal. They not only were not
likely to win on appeal, but they didn't have snowball's chance in
the hot place of winning on appeal! The judge denied their request
for stay
The state appealed the District Court decision to the eighth
circuit. They lost before a three-judge panel. Not to be bested by
a former inmate who represented himself (and did jailhouse lawyer
work for other inmates), they sought a hearing before the entire
panel. They lost. They applied for a writ of certiorari before the
United States Supreme Court. The case law is so clear on this
matter, that they had no chance of being granted a hearing on the
writ before the United States Supreme Court. The Supreme Court
refused to hear the writ. Gee, did the state finally have to admit
defeat?
The State of South Dakota apparently does not understand due
process. They continue to send people back to prison on revocation
of probation, parole or supervised release, ignoring the law and due
process. They take good time, add dead time, and in the end extend a
person's sentence in violation of the Ex post facto clause of the
United States Constitution. That constitutional guarantee says that
a law cannot be passed to punish an act that was not a crime when it
was committed. It also prohibits extending a sentence without a new
finding of guilt, according to the United States Supreme Court. Our
Board of Pardons and Paroles does that in many of the cases of
revocation.
They apparently have not accepted the fact that there is a
limit to the power of the state to take one's freedom away. What is
so difficult to understand about the concept that parole cannot be
revoked after the period of parole has ended? What is so difficult
to understand about the concept that when a sentence is up, a person
has to be released? There is no need for parole, when a person has
flat-timed the sentence. No, dah?
Where are the attorneys for inmates who are so blatantly
held in violation of their constitutional rights? The state has
done away with the law library, and has hired an attorney under
contract who is apparently the only source of legal information for
inmates. He never forgets for whom he works, however. Jailhouse
lawyers can no longer work within our prison system.
In a recent case in the Eighth Circuit Court of appeals,
that court ruled that "A prison system may experiment with prison
libraries, jailhouse lawyers, private lawyers on contract with the
prison, or some combination of these and other devises, so long as
there is no actual harm to the access [to the courts] rights of
particular inmates. (Archie Bear v. Walter Kautzky No 01-3462,
decided October 4, 2002)
In that case the Iowa State Prison had issued a policy
restricting inmate correspondence with jailhouse lawyers, and made a
contract attorney available to inmates. The inmates filed suit about
that policy claiming that the contract attorney "knew nothing about
criminal law and was unable to provide research assistance, conduct
investigations, or file papers." Kinda sounds like the job
description of the contract attorney for the SD penal system, Huh?
The District Court for the Southern District of Iowa granted an
injunction to the inmates to prevent the policy prohibiting contact
with jailhouse lawyers from going into effect.
The State of Iowa appealed the District Court ruling. Guess
they're bad losers too. The Eighth Circuit upheld the District Court
ruling for the inmates. That ruling said that banning all inmate to
inmate legal correspondence violated the Supreme Court's "repeated
caution that inmates do have first Amendment rights and therefore
free speech restrictions must be justified by legitimate penological
concerns.
What! Inmates have First Amendment rights? I believe
inmates within the South Dakota prison system have no satisfactory
alternative to inmate legal assistance, just like those at ISP.
Where was the contract lawyer for inmates in the SD Penal System,
during the 416 days Nicole Figg's sentence was illegally extended?
Hazel Bonner is a free lance writer who writes from hr home. She can
be reached electronically at hbonpidge1@hotmail.com. Her mailing
address is PO Box 3712, Rapid City, SD, 57709-3712.
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