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There Once Was an Old Gangster Who Lived in a SHU

Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.
Anyway, in 2006 the district court issues a writ of habeas corpus directing Griffin's release from the SHU to less restrictive custody.  Federal courts can't actually do that on habeas corpus, but Ninth Circuit precedent at the time said they could, and the Supreme Court didn't get around to saying otherwise until 2011.  But there was another problem.  Griffin wasn't in the SHU.  He wasn't in state custody, in the corporeal sense, at all.  The feds had him for trial on other charges under the Racketeer Influenced and Corrupt Organizations Act (RICO).

So when the state gets him back, he has a brand spanking new federal conviction for organized crime activity during the time he had supposedly sworn off the gang.  So the prison redecides he is a gang member and recommits him to the SHU.  The judge issues more orders supposedly enforcing the 2006 order to let him out.  Can he do that?  No.  He didn't issue a permanent injunction against ever committing Griffin to the SHU based on new evidence of gang membership.

Such a reading would mean that Griffin could announce that he was again leading the Aryan Brotherhood, publicly order more murders which were carried out, yet still claim an entitlement to free circulation and communication in the general prison population. He is already confined for life terms on federal and state convictions, so he could run his gang and order hits on prisoners and on their relatives outside the prisons with impunity. If the law required that result (which it does not), the law would indeed be "a ass -- a idiot."21
21 Charles Dickens, Oliver Twist 451 (Tom Doherty Associates 1998).
Opinion by Judge Kleinfeld.  Judge Berzon dissents.  Watch for en banc.


Berzon's dissent is remarkable. She would bend over backward to help a capital murderer evade AEDPA strictures, but insists on the state turning square corners with respect to an erroneous order it didn't violate in the first place.

Judicial modesty is certainly not her strong suit.

As a side note,according to this LA Times article, Griffin's lawyer is also his wife. They were married when he had already been in prison for several years and was already a high ranking member of the Aryan Brotherhood.

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