PRESS RELEASE: Court rules against Berks ICE facility, finding that immigrant detainees have the constitutional right to be protected from sexual assault by staff.

July 3, 2019
FOR IMMEDIATE RELEASE

CONTACT: Rebecca Susman, rsusman@pailp.org, 412-254-5771

The US Court of Appeals for the 3rd Circuit issued an important ruling in favor of our client, E.D., upholding the constitutional rights of immigrants held at the Berks Residential Family Center and affirming that the laws protecting incarcerated people from abuse also apply to those held within the ICE facility.

The Pennsylvania Institutional Law Project represents E.D., a Honduran woman who, after fleeing violence and sexual assault, was detained at Berks Residential Family Center while seeking asylum with her three-year-old son. E.D. was sexually assaulted by immigration staff member Daniel Sharkey during her detention at the ICE facility. He was ultimately convicted of the institutional sexual assault. Other employees at the immigration detention center were aware of the ongoing harassment and abuse but did not try to intervene or stop the assault. The case, E.D. v Sharkey, is against Daniel Sharkey, as well as other Berks County employees for their failure to protect E.D. from abuse.

Affirming the rights of immigrants in ICE detention, the Court held that constitutional protections against sexual assault do apply to people detained at the Berks ICE facility and, while in custody, they cannot consent to sexual contact with employees. The Court additionally found that supervisors, personnel, and colleagues have a duty to monitor known sexual misconduct between employees and detainees and to intervene. In affirming the opinion of the District Court allowing E.D.’s claims to proceed, the Third Circuit held: "we necessarily address whether immigration detainees are entitled to the same constitutional protections afforded by the Due Process Clause of the Fourteenth Amendment as pre-trial detainees. We hold that immigration detainees are entitled to such protections.” (Opinion at 3)

“We are pleased that the Third Circuit has confirmed that immigration detainees have the same constitutional protections as other detainees, including the right to be free of sexual assault from a government employee while confined.” stated Su Ming Yeh, Deputy Director of the Pennsylvania Institutional Law Project

Read the 3rd Circuit Opinion here
Full press release here

Federal court upholds detainee's lawsuit against Berks County Residential Center

July 2, 2019 | Reading Eagle | Karen Shuey

The victim of a sexual assault contends the county failed to implement policies to prevent the assault and that staff was indifferent to the assault.

PHILADELPHIA, PA —

The victim of sexual assault at the hands of a Berks County Residential Center employee can move ahead with her lawsuit against the county and several staff members of the facility, a federal appeals court ruled Monday.

The ruling stems from a June 2016 civil suit filed in federal court by the victim — who was 19 when the assault occurred in 2014 — alleging the county failed to implement policies to prevent the assault and that staff members at the facility were deliberately indifferent to the assault.

The county and several staff members named in the suit filed an appeal days before the trial was set to begin in April 2018.

The county asked the U.S. District Court of Appeals for the Third Circuit in Philadelphia to dismiss the case while the staff members asked the court to grant them qualified immunity — a legal doctrine that shields government officials from being sued for misconduct unless their actions violate established federal law or constitutional rights.

The appeal was denied by a three-judge panel. U.S. District Judge Luis Felipe Restrepo wrote the opinion.

In the 16-page ruling, the judges affirmed that immigration detainees are entitled to the same constitutional protections afforded to all pretrial detainees by the due process clause of the 14th Amendment. And, because of that finding, the suit against the county and staff members at the facility can proceed.

“… We agree there is enough evidence to support an inference that the defendants knew of the risk facing [the victim], and that their failure to take additional steps to protect her — acting in their capacity as either a coworker or supervisor — could be viewed by a fact finder as the sort of deliberate indifference to a detainee's safety that the Constitution forbids,” Restrepo wrote in the ruling.

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ATTORNEY INFORMATION re the new PA DOC Legal Mail protocols

PA DOC LEGAL MAIL: ATTORNEY INFO

Beginning April 6, 2019, the DOC will not copy legal mail.

Attorneys should send all legal correspondence to the prison, NOT Smart Communications. That mail will be opened in their presence and they will be given the original.

If your client received legal mail while the DOC was copying and confiscating legal mail, the DOC will be contacting them to decide whether to immediately destroy or return that mail.

Visit the DOC’s website (www.cor.pa.gov) and sign up for a new attorney control number. Include a valid email address as the DOC will be emailing you a WEEKLY code in addition to your control number.

When sending mail:
1. Place the attorney control number on a removable sticker on the outside of the envelope.
2. Place a second removable sticker on the outside of the envelope with the current weekly code.

ALL LEGAL MAIL WITHOUT A VALID ATTORNEY CONTROL NUMBER WILL BE RETURNED TO SENDER. If the mail has a valid control number, but not a valid weekly code, the DOC will contact you via phone and/or email to verify that you sent the mail before delivering.

Under the new policy, attorneys can no longer send any documents that were not printed/copied in their offices. This means attorneys cannot return original documents (grievances, etc) to people in DOC custody. Attorneys have until July 7, 2019, to return any originals currently in their possession. After that, if there are extenuating circumstances, attorneys can contact the business office of the prison, or the Office of Chief Counsel to make arrangements.

If you experience any issues or have any concerns with your legal mail under this new policy, please contact Alexandra Morgan-Kurtz, staff attorney in the Pittsburgh office of PILP via email (amorgan-kurtz@pailp.org).

Please click HERE for a printable version of this document.

FAQ: Your rights re the new Legal Mail protocol. Beginning April 6, 2019, the DOC will NOT copy legal mail!

 

PA DOC Legal Mail: Info Sheet 

Beginning April 6, 2019, the DOC will not copy legal mail.

Attorneys should send all legal correspondence to you at the prison where you are located.  That mail will be opened in your presence and you will be given the original. 

If you received legal mail while the DOC was copying and confiscating legal mail, the DOC should be contacting you.  You will be allowed to choose whether your original mail is immediately destroyed, or returned to sender (at no cost to you).

IMPORTANT CHANGE TO LEGAL MAIL: Under the new policy, attorneys can no longer send you any documents that were not printed/copied in their offices.  This means attorneys cannot return original documents you send them. 

You have a choice:

·  Keep your originals and mail your attorneys a copy OR

·  Mail your originals to your attorney and have them send you copies.

In light of this change, the DOC will be increasing the amount of money available to indigent individuals for copying.  You will also no longer be required to submit original documents in grievance or misconduct appeals. 

You should tell your attorneys that under the DOC’s new policy, they must sign up for a new attorney control number.  Your attorney must provide an accurate email address, as the DOC will be emailing a weekly code that must also be placed on the outside of legal mail.  Attorneys can request a new control number by visiting the DOC’s website, www.cor.pa.gov.  For more information on how these changes affect attorneys, they can also visit PILP’s website, www.pailp.org.

If your legal mail…

·  is copied after April 6, 2019

·  is returned to your attorney

·  is significantly delayed

·  or there are any other issues 

File a grievance immediately.

Write to the Pittsburgh office of PILP: 100 Fifth Ave, Ste 900, Pittsburgh, Pa 15222.

Click HERE for a printable version of this information

BREAKING: Civil Rights Groups and PA Department of Corrections Near Settlement of Lawsuit Over Legal Mail

February 22, 2019

HARRISBURG – Lawyers for four civil rights organizations and one person who is currently incarcerated announced today that they are finalizing the details of a settlement of their lawsuits challenging the Pennsylvania Department of Corrections’ policy of copying and storing legal mail. The four organizations challenging the policy issued the following statement in response to the developments in the case:

“We appreciate that the department has agreed that, beginning April 6, they will stop copying and storing prisoners’ legal mail. The revised screening procedures will respect the rights of prisoners to confidential and privileged attorney-client communications without compromising the department's efforts to prohibit drug use in the prisons.”

The organizational plaintiffs, Pennsylvania’s four largest prisoners’ rights groups, are the Abolitionist Law Center, the American Civil Liberties Union of Pennsylvania, Amistad Law Project, and the Pennsylvania Institutional Law Project (PILP). Volunteer attorneys from the law firm Schnader Harrison Segal & Lewis, led by partner Keith Whitson, are also representing the plaintiffs. PILP, et al. v. Wetzel was combined with another challenge, Hayes v. Wetzel, which was brought by Davon Hayes, who is a prisoner at SCI-Smithfield in Huntingdon.

More information is available at aclupa.org/PILP.

Pennsylvania prisons to roll back unprecedented mail policy in legal settlement

February 22, 2019 | The Philadelphia Inquirer | Samantha Melamed

As part of a legal settlement expected to be finalized in March, Pennsylvania’s state prisons will rescind a six-month-old policy lawyers said made it impossible for them to communicate confidentially with clients.

The controversial policy, under which legal mail was intercepted, photocopied, and then destroyed, had been announced last September as one of a series of new security measures — many without precedent in a state prison setting — intended to prevent the smuggling of drugs into the prisons. Four civil rights groups and a state prison inmate had filed suit in federal court seeking an emergency injunction.

Beginning April 6, the prisons will revert to some variation on the previous system, which did not involve photocopying and relied on individual attorney-identification numbers to track legal mail.

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Pennsylvania restricts inmate mail. Prison drugs are down. But is it legal? A federal judge will decide

February 19, 2019 | The Morning Call | Steve Esack

Criminal defense lawyers, including those who work with death row inmates, stopped sending legal documents in the mail to Pennsylvania prison inmates for fear their privacy was being compromised by government officials, according to testimony at a federal hearing Tuesday.

The lawyers testified in support of two consolidated lawsuits in U.S. District Court in Harrisburg. The lawsuits challenge the legality of a 2018 state policy of screening inmates’ mail for synthetic drugs.

The Department of Corrections’ policy prohibits inmates from getting mail delivered directly from lawyers, family and friends. It was instituted last summer in an attempt to stem an influx of illegal synthetic drugs, primarily k2, from being dipped and dried onto mail. The influx led to a rash of security and medical problems, and a 12-day lockdown of all state prisons.

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