THE FAIRNESS AND RESTORATION ACT OF 2015 (F.R.A. – 2015)

Presented by the Free Speech Society (FSS), Published on June 20th, 2015 in the SF Bay View

THE FAIRNESS AND RESTORATION ACT OF 2015 (F.R.A. – 2015)

  • Introduction

According to the 14th Amendment the government cannot develop or enforce any law which shall abridge the privileges or immunities of citizens of the U.S., nor shall any state deprive any person of life, liberty or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the law. We as Prisoners did not forfeit our citizenship when we came to prison, or the laws which are designed to protect our basic human rights and dignity.

We understand that being in prison we lose some constitutional guarantees, which encompass equal protection of the law (i.e. Due Process). But when the government enacts a bill/law(s) it must consider whether an individual(s) will be condemned to suffer grievous loss.

So the question posed to the legislative body: when enacting the 1996-Anti-Terrorism And Effective Death penalty Act (AEDPA), did they consider the unique circumstances that have the potential to impede certain classes of Prisoners from complying to the rules/laws changes under the Anti-Terrorism And Effective Death Penalty Act (AEDPA)?

The 5th and 14th Amendments prohibit the government from depriving persons of life, liberty or property without due process of the law, and the two primary factors in determining clear due process violation:

  • Whether a liberty or property interest is involved, and
  • Whether procedural safeguards are constitutionally sufficient to protect against any unjustified deprivations.

The Anti-Terrorism And Effective Death Penalty Act-1996 (AEDPA-1996) implementation and enforcement was a clear procedural deprivation of our rights under the 5th and 14th Amendments.

Denying relief due to a plea of ignorance of the law defense is a common practice the courts often employed. But those of us who are being housed in isolation/solitary confinement, we have a legitimate claim of ignorance of the law, due to our restrictive custody, we have limited access to critical law changes or court decisions, and the security housing units (SHU) at both Pelican Bay and Corcoran State Prisons are not required by law nor obligated to individually inform those Prisoners being housed in isolation/solitary confinement of any law changes that can have a significant impact on their confinement. Due to our physical restrictions, our access to obtain law changes are “very” limited.

The enactment of the AEDPA-1996 was clear liberty interest for all Prisoners (especially those being housed in solitary confinement): the government should have required that the Department of Corrections/Bureau of Prisons (CDC/BOP) inform their Prisoners of the law changes, instead of leaving it up to a game of chance, especially due to the severe penalty involved for failing to comply to the law changes.

The government’s failure to require that the CDC/BOP inform their Prisoners in isolation/solitary confinement of the AEDPA, violated both our Fifth and Fourteenth Amendment rights. We were deprived of equal relief due to our alleged failure to comply to the AEDPA one year toll rule without considering our unique circumstances of being in isolation/solitary confinement which restricts our capacity to access court decisions, and new law-/bill-enactments.

The government did not even consider our capacity to access the AEDPA-1996, their deliberate indifference towards our unique circumstances denied us life, liberty or property without due process of the law. I ask, if we are not in a position to access this information (i.e. AEDPA-1996) and the CDC/DOC/BOP are not required to individually inform us of the law(s) and how that law(s) can and will directly impact us, how does the court expect us to comply to the law? To be more specific: Pelican Bay and CSP-Corcoran made no efforts to accommodate those of us being housed inside their secure housing units (i.e. isolation/solitary confinement), many of us do not even have TV’s, and no other way to obtain info as it pertains to new laws that may and/or will effect us.

I reiterate, if we are not provided sufficient access to the law, then how are we expected to comply to the law(s)? Our ignorance in this matter is not an excuse, but a legitimate due process/equal protection interest.

We only seek fairness and justice; the attorney general’s offices and all prosecutors/district attorneys have been given an unfair advantage. All relevant law changes are readily available for the attorney general and all prosecution offices. This is a clear injustice, and being treated as if we are on equal terms with the attorney general’s offices/district attorney’s offices.

This is unfair and a violation of our Fifth and Fourteenth Amendment Rights!

Abdul Olugbala Shakur
Aka J. Harvey
Freespeechsociety.org / Freespeechsociety [at] gmail.com

Abdul Olugbala Shakur
s/n James Harvey
C-48884
KVSP B2-117
P.O. Box 5102
Delano, CA 93216

PDF


FAIRNESS AND RESTORATION ACT-2015

This restoration act is about restoring fairness and justice to those who were denied by the government enactment of the AEDPA-1996; there were a number of class Prisoners who were not able to comply to the AEDPA to no fault of their own. This Act of Restoration is specifically for those class of Prisoners. They represent a unique circumstance(s) which had complying to the law changes, these class of Prisoners fall under the following criteria:

1] Those Prisoners who were housed in the Security Housing Unit (SHU) at Pelican Bay State Prison, CSP-Corcoran, CCI-Tehachapi, and New Folsom prisons, as well as in Administrative Segregation between 1996-1997.

2] Those Prisoners who were under chronic health care between 1996-1997.

3] Those Prisoners identified as functional illiterate between 1996-1997.

4] Those Prisoners identified as mentally ill.

Note: The above criteria served as legitimate obstacles impeding our capacity to comply to the AEDPA-1996, being that we were not provided sufficient access to the law changes.


ARTICLES

ARTICLE ONE: Those Prisoners who fall under criteria 1 and 2, and provided that their federal writ was denied on grounds of AEDPA violation, and that the violation did not exceed one (1) year, and they were actively involved in the appeal process shall be given another opportunity to resubmit their federal writ with an appointed counsel.

ARTICLE TWO: Those Prisoners who fall under criteria 3 and 4 shall be appointed counsel due to their inability to represent themselves or fully comprehend the law.

ARTICLE THREE: Starting January 1st 2016/2017 the DOC/BOP will be required by law to inform their prison population of any and all laws/bills that will and can have a direct impact on their confinement.

The criminality of solitary confinement

From SF Bay View, March 21st, 2015

by Steve Martinot

Introduction

In this series of articles, we have traced the various mechanisms whereby the prison procedures of “gang validation” are used to deny the civil rights, the human rights and even the humanity of the prisoners. These procedures mark the criminality of the prison administration.

We have been considering the case of Abdul Olugbala Shakur, who has been in solitary confinement for decades. In the past, the administration had broken Shakur’s contact with his mother, his spiritual father and others. In its more recent attacks, it has charged him with “gang activity” for having written about certain matters in private letters to friends and compatriots.

In the various Rules Violation Reports on these charges, the administration has revealed its own criminality. In particular, it has engineered witchhunts in the name of gang control and despotically imposed extensive censorship on prisoners’ reading material and correspondence.

These engineered campaigns constitute aggression not only against prisoners but against us all as well, insofar as we are barred from their information about their situation. In addition, the impunity of this criminal aggressiveness against the political thinking of prisoners demonstrates, more than anything, the necessity for political resistance by the prisoners themselves, for their psychological survival, which then gets called “gang activity.”

What many Black prisoners have adopted, in order to defend themselves against both the administration and various allied white supremacist groups in prison, is an identification with the ideas of New Afrikan Nationalism, as a self-chosen identity. As self-chosen, it offers opposition, alternative and resistance against the identity traditionally imposed upon Black people by white supremacy.

In Shakur’s case, he is prosecuted for mentioning New Afrika, New Afrikan Revolutionary Nationalism, Black August, George Jackson and the George Jackson University in private letters to friends – and given more time in solitary. It is to “outlaw” these ideas as well as identification with them that the administration has associated them with “gang activity.”

Since gang activity can be outlawed and punished, then so can the ideas associated with it. Thus, “gang validation” becomes the fraudulent and unconstitutional instrumentality for outlawing ideas.

Imprisonment is an act of violence designed to separate a person from society. The rationale of “protecting” society against violent people fails in view of the fact that 70 percent of all prisoners are there for victimless crimes.

Censorship is designed to further isolate prisoners from society. But this patently contradicts the pretended “legitimate” purpose of prison, namely, to return a criminal to society as a better law-abiding person. To return to society, one must have maintained a relation to it. Insofar as censorship breaks that relation, it makes reentry difficult.

But we already know that the legislated obstructions placed in the way of former prisoners – barring access to social services, public housing and most employment – makes reentry practically impossible, essentially guaranteeing recidivism. “Reentry” becomes a fraudulent term whose real meaning is social exile.

Why would recidivism be built into the system? So that the administration can say that certain people, mostly people of color, are incorrigible and must be permanently removed from society. The real point of imprisonment, then, is not to establish respect for law and decency but to implement segregation.

It is not to correct bad behavior but to destroy people and communities. It signifies that “crime” is not the problem the judicial machine is constructed to resolve but rather the existence of Black and Brown people.

The real point of imprisonment is not to establish respect for law and decency but to implement segregation. It is not to correct bad behavior but to destroy people and communities.

Prison is in reality a white supremacist project. Today, 75 percent of all prisoners are people of color.

We see this fact unfold in its extreme in the murder of Black and Brown people by the police in the streets. In 2012, over 600 unarmed people of color were killed by the police. In 2014, that figure rose to over 1,020 (the freethoughtproject.com). In 2014, as well, in the prisons of Florida alone, over 340 people were killed by the guards (Daily Kos, 1/14/15).

The criminality of extended isolation

Shakur had been in isolation for decades, along with 80,000 other prisoners in the U.S. It was to protest this fact that prisoners organized a hunger strike in July 2013. Its demands were simply for human rights, decent food, correspondence” with the outside, fairness in administration treatment and an end to indefinite solitary confinement. Since that hunger strike, Shakur has been attacked and harassed by the administration, using their rules violation procedures to do so (as outlined in the previous articles, “Prisons, gangs, witchhunts and white supremacy” and “The Black Guerrilla Family and human freedom”).

Shakur has described the reality of isolation in an essay (“What is solitary confinement?” previously published in the Bay View 10/18/14). To place a person in a small cell with a steel door and no personal contact with others is only the technical instrumentality of isolation.

According to the U.N., and recognized in the U.S., such isolation is sufficient to drive a person mad. It is a mode of torture whose purpose is the destruction of personhood.

But there are always other prisoners in an isolation cellblock. They can speak to each other through doors and corridors and hear the others’ screams. So the administration, as Shakur describes it, creates social, political and psychological isolation by engineering who the others in the cellblock will be.

To place a Black prisoner, for instance, adjacent to white supremacists will be to subject him to a ceaselessly hostile and aggressive environment. Thus, the many hatreds inculcated in U.S. society – ethnic, racial, gender, ideological, demographic etc. – are used by the administration to assist in the further destruction of intellect and personhood.

Prison is in reality a white supremacist project. Today, 75 percent of all prisoners are people of color.

That destruction is not permitted to any institution in this country by any law or ethic, which means that it is itself totally criminal behavior by the prison institution. What astounds is that the prison industry schemes about how to torture each prisoner with these extreme forms of institutional sadism.

Though the term “sadism” is a psychological term that refers to individual psychology, what the prison industry is proving is that these psychological terms can also refer to institutions. The fraud that disguises these procedures of torture politically lies in calling them “control” units, thus making them seem necessary, as if prison were not already absolute control.

The impossibility of justice amid punishment for thought

With respect to the rules violation write-ups by which people are kept in solitary, their purpose is punishment for thought. As indicated above, associating certain thoughts with gang activity gives the administration the power to ban those thoughts in the name of outlawing gangs. Though it rationalizes this as defense against anti-social disruption, it is the administration that defines gangs, and thus defines disruption. The real purpose remains to charge and convict people for what they think.

Associating certain thoughts with gang activity gives the administration the power to ban those thoughts in the name of outlawing gangs. The real purpose remains to charge and convict people for what they think.

We know how distant that is from law enforcement. Law enforcement means that, in the event a crime is committed, a person suspected of committing that crime is brought to trial to be decided by a jury of his/her peers.

In the U.S., this is what passes for “justice.” To be a real system of justice, there would have to be checks and balances against the ability of the police or prosecutors to frame a person for something they didn’t do. That doesn’t exist.

When George Ryan was governor of Illinois, he found out that one out of every six persons on death row was innocent of the crime for which he was to be executed – framed by the judicial system – and in 2003 ended the death penalty. Of course, the revenge ethic that is fulfilled by imprisonment already makes justice impossible because it doubles the criminality and violence in society simply through the violence and criminality of its vengeance. It also provides a role model for further social violence.

But beyond that, there are a number of corruptions of the “law enforcement” paradigm: 1) A person can be convicted because suspected of having committed some as yet unknown crime. 2) A person can be convicted for having thought about committing a specific crime. 3) A person can be convicted for having thought about committing some as yet unknown crime. 4) A person can be convicted of having thoughts that do not constitute crimes or criminality but simply for having such thoughts. 5) And finally, a person can be convicted for being suspected of having certain unspecified thoughts, which nevertheless are suspected to constitute crimes, simply because suspected.

The first occurs with racial profiling, in which the police commit an act of suspicion, and hold a person while they look for a crime the person might possibly have committed, depriving them of liberty while they do so. The second occurs every time someone is charged under a conspiracy statute, which means that the person, in conversation with others, thought about committing a crime. If the crime is actually committed, then the existence of that conversation can be considered pre-meditation, but then it is no longer “conspiracy.”

The third occurs when an officer shoots someone for disobeying a command and states that he, the officer, felt threatened by the suspect. In such a case, the officer is charging the suspect with felonious assault and then prosecuting, convicting and punishing the person by shooting him.

The fourth occurs when a police officer shoots someone who disobeys an officer’s command, for instance, by running away, thus assuming the criminality of the person’s thoughts and convicting by punishing him in the moment – as Officer Gonzales did when he shot Gary King in the back as King walked away in Oakland in 2007. The list of people to whom this has happened is longer than the list of people on death row in California.

The fifth occurs when a person is killed by the police for simply refusing to be handcuffed or refusing to open the door to the police. We can mention Kayla Moore, Eric Garner, Kenneth Chamberlain, Ramarley Graham … but again, the list is very long.

When an officer shoots and kills a person, as Officer Wilson shot Michael Brown as he stood 100 feet away with his hands up, and is exonerated of any wrongdoing, the state, in so exonerating him, is saying that the officer acted according to state policy. In other words, in acting as prosecutor, judge and jury, the officer has properly performed as an extension of the state’s judicial machinery.

The revenge ethic that is fulfilled by imprisonment already makes justice impossible because it doubles the criminality and violence in society simply through the violence and criminality of its vengeance. It also provides a role model for further social violence.

Only when involved in actual law enforcement are police officers not extensions of the judicial process. Then they are acting as actual police officers, policing the society according to the law. But in the other instances, the police have taken on state functions that are not given to them.

The witchhunting process by which prisoners are brought up on rules violation charges in California prisons, and thrown in solitary or kept in solitary for what they think or read, constitutes a conjunction of all these travesties of justice. The person in prison whose thoughts are defined by the administration as “evidence” of gang activity is not only suspected of criminality, but suspected of conspiring, of rule violations, of thinking about rule violations and of thinking about disobeying the rules in order to disobey in all these respects. Gang validation amounts to conviction on all counts.

The real travesty is that the prison administration pretends it is engaged in legitimate judicial process. In its hearing reports, there are sections labeled “due process,” “investigation,” “witnesses,” “plea” and “testimony” as if they were real.

Ironically, in every one of Shakur’s write-ups, the hearing officer denied Shakur permission to have a witness, declaring that what the witness would say would be irrelevant to the case. This not only cancelled the witness’s existence as a person, but it deprived the prisoner of a defense, as well as due process. The judge, in speaking for someone who isn’t there, thus ceases to be a judge, and becomes a despot.

Isolation is for the purpose of driving people mad

It is known that isolation will drive people mad. Like all torture, it is destructive and is understood to be so in law and in U.N. proclamation. Yet entire prison systems (Pelican Bay, Marion, Lexington etc.) are based upon facilitating solitary confinement. They are institutions built on the principle of destroying human beings.

The administration claims that isolation is necessary to punish people who are violent or who break prison rules. But these prisons were built first, before they had people to punish in this way. They were built with the knowledge that their operation would destroy people. Afterwards, strategies and policies were developed for filling them. The notion of gang validation is one of those strategies.

The purpose of torturing people is to destroy what they think without damaging the person physically – and without committing murder. The administration can say it is defending society against violence rather than committing it. But this simply dovetails with the rhetoric of “correction” (The Department of Correction), whose reality is to intentionally guarantee recidivism.

The false purpose of imprisonment

In light of this project which the prison system fulfills in the U.S., it is utmost blindness to uphold the idea that prisons have a role to play in dealing with people who assault others and who rape and murder them. We hear it all the time: “People have to take responsibility for what they have done to others. We have to get them off the street.”

This is empty if it does not also mean doing so to the perpetrators of institutional criminality – the guards and prison administration, the cops who shoot or beat people on the street, as well as those who legislatively legitimize – through inactivity – or even authorize the torture of solitary confinement. They all need to be held responsible for the violence they impose on society.

The perpetrators of institutional criminality are the guards and prison administration, the cops who shoot or beat people on the street, as well as those who legislatively legitimize – through inactivity – or even authorize the torture of solitary confinement. They all need to be held responsible for the violence they impose on society.

Unfortunately, none of this responds to the real issue of justice. It doesn’t even ask if imprisonment itself is unjust or not. In its silence on that issue, the call for imprisonment affirms that the question of justice is irrelevant.

Indeed, the very desperation contained in that question – “What are we going to do about violent people?” –names the injustice of imprisonment and of its administration. Instead, mass incarceration and solitary confinement are given legal rationalization, though they are forms of psychological destruction, in order that civil society can think that everything is OK and that justice is served.

There are two dimensions to the social acceptance of imprisonment. The first is tradition. Prison is the way Western society has always dealt with those who break the law. The second is violence, reflecting a desire to torture people. Removal from society inflicts pain, as does confinement to a cage.

If we are serious about halting anti-social transgressions – for which persons are ostensibly to be held responsible – then we have to find an alternative because imprisonment is by nature anti-social and transgressive, against persons, families and communities.

If we are serious about justice, then we have to recognize that the injustice of solitary confinement reveals a fundamental desire for injustice at the core of the culture of the U.S. It marks the real desire to deprive people of human rights – outside on the street as well as inside the prison.

Pain, suffering and psychological destruction are the intentions society manifests through imprisonment. It is true that it makes some people feel good about themselves and that the violence committed constitutes a mark of virtue for them.

As the implementation of a revenge ethic, prisons and imprisonment have no socially redeeming value. They are wholly corrupting, even of those people who support them as an institution.

But for that very reason, as the implementation of a revenge ethic, prisons and imprisonment have no socially redeeming value. They are wholly corrupting, even of those people who support them as an institution.

For those of us who believe in justice and democracy, the real crime problem in the U.S. is the prison system itself and its judicial machine. Together they are making justice and democracy practically impossible.

Steve Martinot is a human rights activist, organizer and writer and retired machinist, truck driver and professor, most recently at San Francisco State University. He has organized labor unions in New York and Akron and helped build community associations in Akron. He was a political prisoner in New York state charged with contempt of grand jury. He has published eight books, the latest being “The Need to Abolish the Prison System,” and can be reached at martinot4@gmail.com.