On October 25, 2012, the following letter was sent to the ACLU office in Phoenix, Arizona.
The letter articulates the civil rights (defined by the U.S. Constitution) that are continually violated against the prisoner class in America.
The ACLU did not respond to the letter. In a follow-up phone conversation, the intake attorney at the ACLU of Arizona said that the letter was too vague and lacked any actual crime, or any discernable violation of civil rights.
Amendment VII. If a prisoner steals $50 worth of goods from me and the guards do nothing about it, should not “the right of trial by jury shall be preserved”? Why I am in prison is now of no concern. I should have the right of property and a reasonable avenue of regress. I would say that my right “to the rules of the common law,” was non-existent for all the time I was in prison and all the time I will do in the future.
Amendment VIII. “Excessive bail shall not be required, nor imposed, nor cruel and unusual punishments inflicted.” As for bail, the Bail Reform Act of 1966, 18 U.S.C. §§ 3141 et. seq., relies on “personal recognizance” as a remedy for the fact there is no constitutional right to bail. I wonder why no such constitutional right exists? I have never been able to take advantage of bail because none was offered.
“Nor cruel and unusual punishment inflicted.” Rhodes v. Chapman, specifically states that all prisoners may not be denied “food, warmth, or exercise.” I did not know that hunger was a demon until I started doing time. The lack of substantial meals makes the prisoner constantly hungry. Ramos v. Lamm, states that the prisoner must get “nutritionally adequate food.” The fact that each prisoner is given the exact same portion does not take into account individuals of differing weights, heights, and ages. The one tray per inmate policy is systematically starving millions of people in prisons across America.
When I mentioned the Salt Lake County jail I mentioned the lack of warmth. I would estimate that at night the cell was probably about 30 degrees. Each inmate is given a pair of jellies, white T-shirt, underwear, pajama pants, and one threadbare blanket. It was cold and it stayed cold. In addition, as mentioned, the exercise yard was mostly snowed over the winter months making exercise an impossibility.
Medical treatment is not constitutionally mandated for prisoners, but Estelle v. Gamble, states that “deliberate indifference” constitutes “cruel and unusual punishment.” While in Federal Correctional Institution (FCI) Sheridan my cellmate had gotten food poisoning from the evening meal. He began to get sick, horribly sick in our cell. I screamed for the guard who casually walked to our cell, smiled and walked away. I did everything I could do which was not much. My cellmate lived, but he certainly could have died as well.
As for excessive force, Whitley v. Albers, states that “maliciously and sadistically to cause harm,” is a violation of prisoner rights. While in FCI Lompoc I was strapped to a table in the Lieutenant's office naked for being disrespectful. One guard in particular hit me in the back of the neck with his baton. I asked if he still dated his sister and he raped my anus with the baton. Those guards there laughed-I did not.
Amendment XIII. I was made to be a part of serfdom in Federal prison. By having to work in UNICOR, (UNICOR is the trade name for Federal Prison Industries (FPI). FPI was established by the U.S. Congress on 23 June, 1934 (Public No. 461, 73rd U.S. Congress). Source. Roberts, Factories with Fences: The History of Federal Prison Industries. Web. 9 June 2014), I was paid wages in which portions were used to pay off my debt to the government. I had no recourse but to work tirelessly for UNICOR, while portions of my money went back to the federal government. Serfdom is defined by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, as “the condition or status of a tenant who is by law, custom, or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status” (United).
In addition, debt bondage is similarly described in the same document as “the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” I was given, “or those of a person under his control,” to UNICOR, which is a for profit part of the Federal government, in order to labor. I was paid less than a dollar an hour for a company that has profited off of the sweat of prisoners for the last 75 years. I believe the institution of a Federal prisoner minimum wage is necessary to put a halt to the wholesale abuse of prisoners as a labor source.
In addition, UNICOR employs thousands of illegal immigrants who are incarcerated for mostly illegally immigrating for work. With these jobs these Mexican citizens earn enough money to support families in Mexico. Because of seniority ratings in UNICOR, American citizens are pushed out of jobs in our own prisons.
Amendment XIV. Section 1. Again, I am not afforded the privilege to vote in certain states in this union.
Amendment XV. Again, I am not afforded the privilege to vote in certain states in this union.
Amendment XIX. Again, I am not afforded the privilege to vote in certain states in this union.
Amendment XXIV. Again, I am not afforded the privilege to vote in certain states in this union.
Amendment XXVI. Again, I am not afforded the privilege to vote in certain states in this union.
I simply want to be free. Free like Thomas Jefferson said I would be. I want to have my rights returned in full, and I want to see the U.S. Constitution amended to protect felons against discrimination.
Further, I want the justice system in America to fail so it can be reconstructed. Soon, the number of those with felony records will become too unmanageable. I do not foment revolution. Instead, I simply believe that when a majority of people in this country do not share equal rights with those who enact policy, then a paradigm shift will occur.
I hope to hear from you very soon.
brian edward malnes
Cinda Sandin, Unit Team Manger, Halawa Correctional Facility, Petitioner v. Dermont R.D. Conner et al., 515 U.S. 472; 1995. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Coffin v. United States, 156 U.S. 432; 1895. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Estelle, Corrections Director, et al. v. Gamble. 429 U.S. 97; 1976. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Fidel Ramos, et al., Plaintiffs-Appellees. v. The Honorable Richard D. Lamm, Governor of the State of Colorado, et al., Defendants-Appellants. 639 F.2d 559; 1980. U.S. App., 10th Cir. LexisNexis Academic. Web. 10 Aug. 2014.
Finland. Ministry of Transportation and Commerce. Communications Market Act. Amended 2009. Web. 9 June 2014.
Hudson v. Palmer, 468 U.S. 517; 1984. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Meachum, Correctional Superintendent, et al. v. Fano, et al., 427 U.S. 215; 1976. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Rhodes, Governor of Ohio, et al. v. Chapman et al. 452 U.S. 337; 1981. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
United Nation. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. 7 Sept. 1956. Web. 9 June 2014. *Accession by the United States on 6 Dec. 1967.
United States. 89th Congress. Bail Reform Act of 1966. Pub. L. 89-465, 80 Stat. 214. 1966.
United States. 93rd Congress. H.R. 658. Speedy Trial Act. Pub. L. 96-43, 93 Stat. 327. 1974.
Whitley, Individually and as Assistant Superintendent, Oregon State Penitentiary, et al. v. Albers. 475 U.S. 312; 1986. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
Willard Ralph Vosburg, Appellee, v. Herman Solem and Richard Rist, Appellants, 845 F.2d 763; 1988. U.S. App., 8th Cir. LexisNexis Academic. Web. 10 Aug. 2014.
Wolff, Warden, et al. v. McDonnell, 418 U.S. 539; 1974. U.S. Supreme Court. LexisNexis Academic. Web. 10 Aug. 2014.
I am writing because I believe several of my rights are non-existent. Upon looking at U.S. Constitution it is clear to me where massive violations of my civil rights have occurred. And of course, civil rights are better understood to be named human rights according to The Universal Declaration of Human Rights (UDHR).
But before the writing of both the above documents another document was penned by our third president Thomas Jefferson, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
The U.S. Constitution is the legal document that outlines and defines these Rights. I begin with Article III, Section 2: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” This is the greatest injustice of all time. The current legal system does not allow for a trial by jury. Instead, the current system is based upon the plea barging proposition.
County and local jails are such morally reprehensible institutions that the idea of a jury trial is inconceivable. I personally waited nine months for jury trial in the Salt Lake County Jail, which was basically an open-air jail in 1991. Snow fell on my blanket while awaiting trial. Anyone that was offered any reasonable deal took it against having to stay another night in that particular jail.
By creating jails and detention centers designed to house those awaiting trial that lack the basic amenities of modern society is a travesty of justice. Ei incumbit probatio qui dicit, non qui negat (The burden of proof lies upon him who affirms, not he who denies), is a nice sentiment but is not explicitly guaranteed under the U.S. Constitution-although the 5th, 6th, and 14th amendments directly address the general issue. And of course Coffin v. United States, establishes this legal precedence.
The current situation as regards jails and pre-trial detention centers is a disgrace. If the presumption of innocence is assumed then jails should allow for the same basic amenities found outside of pre-trial confinement. Unfettered Internet access in all jails is a great start to affording the innocent a chance to prepare a case. After all, several countries such as Finland (Finland), have established that Internet is a basic legal right for all human beings.
But clearly I am now free from the criminal justice system as demonstrated by my letter of parole by the State of Colorado and the Federal Bureau of Prisons. Unfortunately, due to statistical probabilities, I will return to prison one day, possibly for life. I am attempting to secure my civil rights prior to re-entry into the criminal justice system.
As such I am determined to assure that no civil rights can ever be taken away from a human being. I purpose that rights, such as the second amendment, can only be removed for a designated period of time. And that on the date of sentence completion, that right is instantly restored with a letter from the government assuring this regained right.
In addition, I propose that certain rights can never be taken away. The following are a list of those rights taken away from the prisoner:
Article IV. Section 1. By the fact I am an ex-felon I am unable to vote in certain states. This freedom to select a place of residence anywhere in the United States is compromised. The last time civil rights were different between states was during the civil rights movement. I want the Federal government to assure my inalienable rights wherever I live in this country.
Article IV. Section 2. Again, I am not afforded the privilege to vote in certain states in this union.
Amendment I. Prisoners are not afforded many of the assumed basic rights contained in this amendment. In addition, one of these fundamental rights is the freedom of press. There is currently no possible way for the prisoner to openly grieve in a safe public forum. This could be accomplished by the constitutionally amended mandated provision of Internet to all prisoners.
Amendment IV. Why should prisoners be subjected to searches of their personal belonging without a warrant of cause? And when is this right restored? I lived for many years under the assumption that I can be searched at any time. I am not free to resist an officer of the laws request for unlawful search based on my criminal past. There is an assumption that once a criminal always a criminal. This mentality has assumed that I have no recourse against illegal search.
Amendment V. Taking the Fifth has become a standard line that all Americans understand. “Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The assumption is that if you don't have to testify against yourself in court, why not in the rest of the world? If asked, most people would say they are protected under the U.S. Constitution from self- incrimination.
However, every application from jobs to education has asked me-Have you ever been convicted of a crime? This is followed by the obligatory yes or no. When I select the yes answer I am directed to several lines headed by comment. The answering of this question has defined my life. Currently, the need for this question is superfluous. Background checks are a matter of policy everywhere, making the asking of this question purely discriminatory.
The idea of “due process of law” is one that needs to be looked into regarding prisoner rights. Any discipline within a correctional center must meet this “due process of law.” Wolff v. McDonnell, Meachum v. Fano, Sandin v. Conner, provide a detailed account of the legally protected, but not followed case law.
Being convicted and sentenced should not automatically deprive an individual of any possible regress. I was sentenced to prison, an inherently violent place, I defended myself and injure another inmate. Now, instead of “due process of law” I am subjected to nothing less than a Kangaroo court of prison employees. First, it is the job of the guards to protect me Hudson v. Palmer. I know that there are limitations to this supposed protection Vosberg v. Solem, a fact I will discuss in Amendment VIII.
To further this humiliation and mockery of justice, property, such as food purchased by me, is taken away. Often orderlies are given the commissary items, eating them, thus my property was “taken for public use without just compensation.” And this practice happens everyday in prisons across the country.
Amendment VI. “The right to a speedy and public trial” is a right taken away several times in my life. The definition of my rights can be found in the Speedy Trial Act of 1974, codified at 18 U.S.C. §§ 3161 et seq. As stated before, the miserable condition in pre-trial confinement makes this ridiculous. Again, without the modern facilities used by any lawyer, the accused is forced to labor blindly in their own defense. The fact that “Assistance of Counsel” is often appointed and the workload given to public defenders so incredible that the natural human instinct of this “Assistance of Counsel” is to work through the case load quickly.
What would happen if every single person in pre-trial confinement at this very moment in America suddenly demanded “a speedy and public trial?” The balance of justice would simply fail. And yet, constitutionally every American citizen is guaranteed this right. Does that make the justice system in America un-Constitutional, a system unable to provide every citizen this fundamental right? This creates an impossible judicial system, one unable to provide this 6th Amendment right. And so, plea-bargaining has become the criminal justice system in America.
• dear aclu (cont.)
The ACLU has created an excellent map that shows the felony franchise laws in each state. It is entitled: