Under Lock & Key

“No man can tell the intense agony which is felt by the slave, when wavering on the point of making his escape. All that he has is at stake… The life which he has may be lost, and the liberty which he seeks may not be gained.” -Frederick Douglass, 1845

We are made to persist. That’s how we find out who we are.

The Khufu Foundation thanks you for being part of the solution! The following is an update on the lawsuit, Hicks v. Guiterrez, et al, 6: 22-cv-134. It contains both good and bad news. The bad news is that the District Court has dismissed the case with prejudice, which was not unexpected. The good news is the cases he used are not on point, plus he failed to thoroughly address an issue of First Impression “The Cumulative Effect.”

For those of you who have tablets, go to law library and read exactly what the District Judge has to say for yourself. We have given notice of appeal, and await a word from the 5th Circuit giving us a number to seek COA. Before we give our argument in brief, let us give you a word directed to the right that can save you a few dollars as well as allow you to move much faster through the Courts than the §1983. We have learned that these same issues can be attacked with an application for Writ of Habeas Corpus – see the tablet has a wealth of information, particularly the Law Library; there are literally thousands of cases at your fingertips. Yet, the tablet can turn you into a zombie, who feeds on nothing but music and movies.

Now, here is what we will take to the 5th Circuit:

1. Whether the Cumulative Effect of the Texas Constitution, Texas State Law Statutes, the Administrative Procedures Act, and the Rules and Regulations of the board combine to give a Reasonable Expectation that the parole procedure will be conducted with a modicum of just and fair treatment – see Wilkonson v Austin, 125 S.Ct. 2384

2. Whether Applicant was denied Equal Protection of the Law as compared to other prisoners who can review their parole-file/transcript, because they can afford an attorney, see Griffin v Illinois, 76 S Ct. 585 and Register v Thaler, 681 F. 3d 623

3. Whether Applicant has been denied a fair and just parole hearing where the defendants fail to follow the APA and their own rules without meeting the Constitutional minimum regarding parole review – see Parrat v Taylor, 101 S. Ct. 1909 and Leggett v Williams, 277 F. App’x 498, 500 (5th Cir. 2008)

4. Whether Applicant was denied a meaningful participation in his parole hearings when he was not allowed to review his parole file to challenge all false and/or derogatory information contained therein, when Board Members have admitted that there is often false and/or inaccurate information in parole-files. – see Johnson v TDCJ, 910 F.Supp. 1208

This information is supplied in the hope that each of you will do your research and continue to fight.

North TX AIPS adds: This is a follow up to Texas Prisoners Launch Attack on Parole System printed in Under Lock & Key 78. This lawsuit is an attempt for parole reform in Texa$ and was launched May of last year (2022). It is in response to continuous denial of parole for many prisoners based on commitment of the crime, rather than behavior while incarcerated, and to argue that the Board Members are not protected against suit according to the Ex Parte Young Doctrine:

“In determining whether the doctrine of Ex Parte Young avoids an 11th Amendment bar to suit, a federal court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Const. Amend.11 - See Verizon MD. Inc v. Public Service Commission of Maryland, 535 U.S. 635, 122 S.Ct. 1753 and McCarthy ex rel Travis V. Hawkins, 385 F.3d 407, 412 (5th Cir. 2000)

While some of the demands as previously stated are in line with the Juneteenth Freedom Initiative, as revolutionaries our focus is on the building on independent institutions of the masses, rather than working for parole reform. We are building on our Re-Lease on Life program and encourage anyone whose interested to write us and start to work on study and strategy for revolution.

The Free Alabama Movement has declared their recent organizing a success, with over 15,000 prisoners participating and prodding response from the governor during the campaign season.(1) They have announced the next phase of their struggle for reasonable paths to parole and release. It involves the drafting and proposal of a state bill. The Alabama Legislature opens on 3 March 2023, and prisoners have planned to launch a campaign to promote and support the proposed bill at that time.(2)

Following the recent actions, a damning report came out substantiating the prisoners demands:

“July 2022 was the deadliest month on record in Alabama prisons. Thirty-two people died in Alabama prisons in July — the most since at least January 2000, the earliest month for which data is available online. More people died than were granted parole that month.”(3)

The Free Alabama Movement concludes in their recent statement:

“On September 26, over 15,000 people stood up for freedom in the Alabama prison system. That’s 10,000+ new soldiers, warriors and generals to the ranks who had NEVER participated in a shutdown before. Most of them didn’t know they would be challenged by the ADOC at the core of our most basic human need: food. This is a real struggle against a system that is well funded and has been in existence for over 100 years. We gotta act like we want freedom, and move with the understanding that that will be a test of your will and spirit to achieve something great.

“Understand the mission brother and sisters. A call has been made for us to stand again. We cannot miss our assignment and expect change.

“Dare to struggle, dare to win.”

<sup>Notes:
1. Free Alabama Movement, 23 October 2022, “Fifteen Thousand Stood Up on September 26, 2022”.
2. Free Alabama Movement, 24 October 2022, “A Path to Freedom”.
3. Evan Mealins, 18 October 2022, “July was the deadliest month on record in Alabama prisons. Here’s what we know”, Montgomery Advertiser.</sup>

Since Monday, 26 September 2022, Alabama has struggled to keep its prisons operating as prisoners across the state have not been performing work in their facilities until their demands for reform of the parole system, sentencing, and oversight are met. Organizing around this campaign began back in June among prisoners and their families, after years of protests and litigation over the escalating brutality of the Alabama Department of Corrections failed to make the state budge.

In the state of Alabama, prisoners manufacture license plates, furniture, clothing, while maintain the prisons themselves by working in the kitchen, laundry, or doing yard and road work. Without this work the prisons are dramatically short-staffed and can barely even keep prisoners fed. Meals being served to prisoners in recent weeks are basically slices of bread and cheese, a powerful indication of the willingness of the state and its employees to run the basic infrastructure prisoners need to survive.

The prisoners’ demands are not centered on overcrowding or the fact that Alabama doesn’t pay its prisoners anything for their labor, or specific acts of brutality by correctional officers, as galling as all of that is. Instead, they are targeted at the parole and sentencing systems, which have led to “more people coming out in body bags than on parole,” in the words of outside organizer Diyawn Caldwell of prisoner advocacy group Both Sides of the Wall.(1) The prisoner’s demands are:

• Repeal the Habitual Offender Law immediately.
• Make the presumptive sentencing standards retroactive immediately.
• Repeal the drive-by shooting statute.
• Create a statewide conviction integrity unit.
• Mandatory parole criteria that will guarantee parole to all eligible persons who meet the criteria.
• Streamlined review process for medical furloughs and review of elderly incarcerated individuals for immediate release.
• Reduction of the 30 year maximum for juvenile offenders to no more than 15 years before they are eligible for parole.
• Do away with life without parole.(2)

The sentencing and parole systems in Alabama have always been bad and have been getting worse in recent years. In mid-October while prisoners in some facilities were still refusing to work, the Alabama parole board granted two paroles out of 124 cases, a rate barely above one percent. Whether this was conscious retaliation or just the day-to-day brutality of the system is unknown at this time.

An investigation initiated by the Justice Department under the Trump administration identified horrific overcrowding (182% of capacity) and neglect that has led to some of the highest rates of homicide and rape among prisoners in the country.(3) Following this investigation, the Justice Department then took the extraordinary step of suing the state of Alabama over the conditions of its men’s prisons.(4) According to prison organizers, nothing has changed in the almost two years since the lawsuit.

Because of the prisoner participation across the state, the government wasn’t able to ignore it like they normally prefer. Governor Kay Ivey called the demands ‘unreasonable’ while also admitting that the building of two new mens’ prisons (with misappropriated COVID-19 relief funds) would meet the DOJ’s demands to end overcrowding.(5) Regarding parole and the basic fact that the state is putting more and more people inside with longer and longer sentences with no end in sight, she had nothing substantial to say.

The warehousing of predominately oppressed nation men, with no opportunities for rehabilitation or release is why we charge genocide against the U.$. criminal injustice system. Alabama is part of the Black Belt south, with 26% of it’s overall population being Black/New Afrikan. Yet, 54% of prisoners were New Afrikan across the state in 2010!(6) Alabama is in the top 6 states in the United $tates for overall imprisonment rates, with most of those states being in the Black Belt.

Caldwell discussed the despair prisoners in Alabama feel because of the lack of opportunities in Alabama prisons:

They’ve taken all the exit and second chance options away from these men and women in Alabama. There’s no hope for parole because the parole board is practically denying everyone and sending them off [with] five [more] years with no explanation, even though these men and women meet the set criteria that has been established.

They practically have a living death sentence, if they don’t have an EOS date, so all the hope is gone. They have nothing to strive for there, they feel like they’re not worthy of a second chance, they’re not given a second chance. And no one has any type of trust or hope in them to come out and reintegrate into society and be a stand-up citizen.

People incarcerated in Alabama face excessive force from correctional officers, a high risk of death, physical violence and sexual abuse from other prisoners and are forced to live in unsafe and unsanitary conditions, according to the DOJ.

The prison authorities have responded to the work refusal by cancelling all visitation, cutting programming back to nothing, and serving next to no food. The Alabama Department of Corrections is one of many prison systems across the country struggling to function without enough people to run its operations. While prisoners are the primary people to suffer under these conditions, this also indicates a contradiction in the United $tates use of prisons to control large populations that could offer opportunities for change. As Under Lock & Key goes to print, the prisoners have faced the state of Alabama down for three weeks. We will continue monitoring the situation and try to extract lessons for the rest of the country.

<sup>Notes:
1. Jessica Schulberg, “Alabama Prison Strike Organizer: ‘They’re At War For Their Life And Freedom’”
2. Julia Conley, 28 September 2022, “Demanding Broad Reforms, Thousands of Inmate Workers on Strike at Alabama Prisons”, Common Dreams.
3. Katie Benner and Shaila Dewan, 3 April 2019, “Alabama’s Gruesome Prisons: Report Finds Rape and Murder at All Hours”, The New York Times.
4. Department of Justice Office of Public Affairs, “Justice Department Files Lawsuit Against the State of Alabama for Unconstitutional Conditions in State’s Prisons for Men”
5. Howard Koplowitz, September 2022, “Striking Alabama inmate workers’ demands ‘unreasonable,’ Ivey says”.
6. Alabama Profile, 2010, Prison Policy Initiative.</sup>

Greetings Comrades.

Imagine a lawsuit attacking the constitutionality of the Texas Parole System being filed in every U.S. District Court in Texas, by 100 or more prisoners. Well this is exactly what the Khufu Foundation is attempting to do. However, it can only be done with MASSIVE Prisoner participation. The Texas Legislature does not meet again until 2023, and any hope of them changing this system is slim to none. Thus, it is up to the Prisoners to effect a change.

For the prison system to function constitutionally, there must be a system in place that works. The continuous rejection of parole based solely on the commitment crime does not justify the denial, and is constitutionally unacceptable. Thus, the Khufu Foundation is calling on those hundreds of prisoners who have been repeatedly set-off for 1D and 2D, SERIOUS NATURE OF OFFENSE and CRIMINAL BEHAVIOR PATTERN to file Civil Rights Lawsuits for Declaratory and Injunctive relief.

Every human, town, state, and country has a History. History is a fact that can never be changed, but redeemed. What is rehabilitation? It is a redemption of a past history of conduct. The Texas Legislators claim that incarceration “is the punishment” for the crime committed, and the parole system is the rehabilitation. Yet, without a workable parole system, without the intervention of “Board Members”, a prisoner is continuously punished by the system which is unworkable. The fact is, the Texas Parole Board needs to be dismantled and replaced with a workable Parole System. The Khufu Foundation has compiled a Template Lawsuit based on the following, along with a Memorandum of Law:

“While the U.S. Supreme Court has not defined the minimum process required by the Due Process Clause for a denial of parole under the California system, it made clear that the requirements were satisfied where the inmates were allowed to speak at their hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.” – see Pearson v. Muntz, 639 F.3d 1185.

I am the Plaintiff in the lawsuit against members of the TBPP, as well as the litigator in another cause against them: Hicks V. TBPP, 6:22cv134 Armour V. TBPP, 6:22cv33 in the Eastern District-Tyler Division. This is an update to enjoin each of you who read this and have received multiple set-offs to file your own lawsuit and/or file motions to join these. Also, know that there has been an order to Replead issued in Armour v. TBPP with the Court alleging that TBPP is protected by the Eleventh Amendment. Thus, I urge you to name Chairman David Gutierrez and Rissie Owens as defendants.

I will be arguing that the TBPP is not protected by the 11th Amendment in light of the Ex Parte Young doctrine, which states:

“In determining whether the doctrine of Ex Parte Young avoids an 11th Amendment bar to suit, a federal court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Const. Amend.11 - See Verizon MD. Inc v. Public Service Commission of Maryland, 535 U.S. 635, 122 S.Ct. 1753 and McCarthy ex rel Travis V. Hawkins, 385 F.3d 407, 412 (5th Cir. 2000)

Next, please find enclosed my letter to the Court in F. Martinez, et al., v TBCJ, et al., 3:21cv337. Please send a copy of my letter along with my name to the Plaintiff in this cause for it is very important that he not settle unless he gets something in writing from the Court. TDCJ will rock one into believing they are going to do the right thing; and they will do the right thing for just long enough for you to think all is well until one of their people violates someone then you find out there is nothing in writing that binds them. Examples: Ruiz and Brown.

The Khufu Foundation is currently seeking to hear from those who have been repeatedly set-off, and is asking them to file this lawsuit. If you would like a copy of this lawsuit, send a SASE and 3 stamps to:

MIM(Prisons) adds: We do not know anything about the Khufu Foundation and cannot vouch for them if you choose to send them stamps. However, this campaign for parole reform is in line with some of the demands of the Juneteenth Freedom Initiative and we thought some of the legal strategies herein might be useful to others. We are not lawyers. We are revolutionaries.

As revolutionaries MIM(Prisons) does not spend time working for parole reform. We do work to build independent institutions such as our Re-Lease on Life program to help comrades be successful and stay involved in the struggle when they are released. If you have an upcoming release date or parole date, it’s never to early to start working with us.