What’s Justice Got To Do With It?

Every six months or so, prisoners of the Federal government are given a “six month review” by the “Unit Team” staff comprised of the Unit Manager, Unit Counselor, and Unit Case Manager, and occasionally attended by staff from the psychology department. More often than not this so-called “review” ends up being little more than a paperwork shuffle, and no actual review hearing even occurs. Or, if a hearing does occur, then only a subset of the expected staff bothers to attend. My last review, for example, which just happened a couple of weeks ago, consisted of the Case Manager, alone, coming to my cell door, informing me of the “review”, asking if I wanted a “hearing” (I said no, of course --- any chance I get to avoid the bureaucratic song and dance I consider a blessing), and then informing me that my Financial Responsibility Program, or “FRP”, payments were to be increased from $25 a quarter, to $25 a month. And that was it.

Since then I’ve decided to not pay the FRP prison tax, which means I will be restricted for the next six months to a limit of $25 per month on commissary, amongst other restrictions, but that’s no bother, at least not for me (I usually only buy coffee, and salt for my food, on a regular basis; anything else I buy I consider treats that I can live without (and often do anyway). The restriction doesn’t apply to phone calls or stamps, which is where a lot of my money goes anyway; so it’s no big deal.

But, at one of these “reviews” earlier last year (March 2013) I was given a notice, signed by the Unit Manager, informing me that my “personal history, prior offense conduct and convictions” had been reviewed, and it was deemed that my “history of behavior could jeopardize legitimate penological interests”. And therefore, I was precluded from using the TRULINCS program (i.e. limited e-mail for prisoners).

When I asked why I was being restricted (and I have since learned that this notice is supposed to tell me the SPECIFIC reasons why I was restricted, according to BOP policy) counselor Edwards told me that it was because of the “Walsh Act”, which means that the restriction was imposed by Federal law, not prison policy, and hence could not be appealed. I didn’t find out until a year later that the restriction in my case went explicitly against BOP (Bureau of Prisons) policy, and that I could have appealed it. But, because Edwards lied to me, by claiming it was a Federal law, I didn’t appeal it. Instead, I asked my attorney about the “Walsh Act”, which he had never heard of, but he promised to look into it for me.

My attorney eventually sent me a copy of the BOP policy concerning TRULINCS e-mail restrictions, and that’s how I found out that the policy explicitly states that in cases like mine, that are considered a “high risk public safety factor”, a restriction must not be imposed unless there is some evidence that the prisoner has a history and/or knowledge of “using computers/e-mail/Internet or other communication methods as a conduit for committing illegal activities”. This policy states very explicitly that, “Inmates must not be excluded from program participation based on general categorizations of previous conduct”. And yet the notice I received from Unit Team staff during that particular six month review gave only the most general reasons for my restriction; in fact, it gave only the most general reason of all: because my “history of behavior could jeopardize penological interests”. The notice did not say what “history of behavior” or what “penological interests”. So, all I had to go on was this so-called “Walsh Act” as a reason for the restriction.

At the next six-month review I asked again about the reason I was restricted from using TRULINCS e-mail, and I was again told it was because of the Walsh Act. I explained that my attorney couldn’t find any reference to prisoner e-mail restriction in any Federal law, and I asked for a specific reference. Mr. Edwards promised that he would look it up and send it to me.

So I waited a couple of weeks but got nothing from Mr. Edwards. In the meantime, I had purchased an MP3-player, and began using the TRULINCS computer (available in the “recreation” rooms) to purchase and download music for my player. This gave me an opportunity to send an electronic message to staff, so I did. I sent a message to Mr. Edwards, politely reminding him of his promise to send me the relevant “Walsh Act”. He responded electronically as well, by simply typing “noted” as a reply (which I printed out and kept a copy of as evidence of his deception, since the system automatically erases all messages after 90 days).

When I saw Mr. Edwards in the hall, outside of my cell door, I reminded him again about his promise, and he finally responded by giving me a copy of the 64 page “Adam Walsh Child Protection and Safety Act of 2006”. I carefully read the entire act, and it made no reference or inference at all concerning prisoner e-mail.

That was when I realized that I had been duped. It seemed obvious then that I had clearly been restricted from TRULINCS e-mail directly against policy, and then lied to in order to keep me from appealing the restriction. So, I immediately sent an electronic message to the Unit Manager, Ms. Bayless, to make her aware of this discrepancy, and asked her to tell me what specific reason I had been restricted for, and I pointed very specifically to the policy which stated what kind of reason was necessary.

Ms. Bayless’ response was: “Mr. Duncan, The information in the memo [from March 2013] was the specifics, i.e. personal history, offense conduct, etc. Due to these specifics, you were deemed inappropriate for program participation. Your personal history indicates that you have knowledge of computers, as you ran a website. In regards to your offense conduct, in multiple instances you have orally persuaded and/or forced minors into engaging in sexual activity. Additionally, it indicated that in some instances you videotaped these acts.”

That was her entire reply, but it didn’t make any sense! First of all, there is nothing “specific” about “personal history” or “offence conduct”. By claiming these to be “specifics”, as she does, she is clearly abusing her authority to interpret policy, especially since the policy itself gives very specific examples of what “specific” reasons must be given.

The policy states, “For example, inmates with a personal history of, or prior offense conduct or conviction for, soliciting minors for sexual activity, or possession/distribution of child pornography through the Internet or other means, are excluded from [e-mail] program participation based on their history.”

I have no such history or convictions. None of my crimes involved “soliciting minors” or “possession/distribution of child pornography” THROUGH THE INTERNET, or any other means of communication. Yes, I had made videos during my crimes, but I also deleted them before I was arrested (they were forensically recovered by the FBI from the deleted files). I never distributed them, or had anything at all on my computer, phone, or cameras, illegally downloaded from the Internet. There is nothing in my file, or “history” that indicates I ever used the Internet, or any other means of communication, to commit any crimes. Other than the “porn” I made myself, and deleted, no “child porn” was found on any of my computers (not on the laptop I had when I was arrested, or on my home desktop that the police confiscated from my home office in Fargo), or anywhere else in my possession.

I have never “solicited minors for sex”, by any means, much less via the Internet. All my crimes involved direct force only, and I have never so much as even been accused of soliciting any child, not even when I easily could have.

It was clear to me that Ms. Bayless and Mr. Edwards had decided that a “child rapist” like me, should not be allowed to use prisoner e-mail on GP, and they weren’t going to let some nuisance like BOP policy tell them otherwise. The lies that Mr. Edwards told to prevent me from appealing Ms. Bayless’ deliberate abuse of authority was a clear indication that they were also conspiring to do so. I knew immediately that my only remedy would be in the courts, but before I could go there I was required, by law, to exhaust all institutional remedies. So that’s what I set out to do next.

The first step in all institutional remedies is to file an official “informal resolution request”. Which I did. The response I got was short and sweet: “Your Administrative Remedy [sic] is untimely. You received notice of the [TRULINCS] restriction on 3/21/13 which is over a year old. You have 20 days upon notice to file the grievance.” And, it was signed by, guess who? Mr. Edwards and Ms. Bayless! Remember, this is the response I got to the initial “informal resolution request”. It was not yet an “Administrative Remedy Request”, that is supposed to come next. So, in essence, they completely side stepped their policy violation by asserting a time limit that doesn’t even apply to the informal resolution (by calling it an “Administrative Remedy”, which it was not, yet).

I then submitted a formal “Administrative Remedy Request”, in which I not only explained the original issues, but also took the time to point out that the reason for the delay in filing was caused by the lies I was told by Unit Team staff (Mr. Edwards specifically). According to the A.R.R. (Administrative Remedy Request) policy, such reasons for delay are accepted, but must be confirmed in writing by Unit Team Staff! So, my A.R.R. was, of course, rejected (i.e. not even accepted for review at all) as “untimely”. Under “remarks” on the rejection notice it said, “Must have in writing from Unit Team that it is untimely due to being mis-informed of remedy process.”

So, what else could I do? I sent another electronic message to Ms. Bayless, asking her to confirm that Mr. Edwards had lied to me. And, of course, she refused to do so. But, she didn’t deny the lie, or refute it in any way at all. I had evidence, remember, so she couldn’t. She just simply refused to document the lie in writing for the A.R.R..

So, I initiated a separate A.R.R.. In this one I pointed out that Ms. Bayless was blocking my legitimate access to the Administrative Remedy Program by refusing to do her job by not so much as even investigating the alleged lie by Mr. Edwards, her subordinate, much less put it in writing as policy dictates she must do. And here is where the fun really began!

The new A.R.R. was immediately rejected also, without any review at all of the issue I raised, again as “untimely”. So I wrote the person who signed the rejection notice, the “Administrative Remedy Coordinator”, and explained that my A.R.R. was NOT untimely at all, since the “possible staff misconduct” occurred only a few days before.

Of course, I didn’t expect that my letter to the “Coordinator” would accomplish anything, so at the same time I submitted an appeal of the rejection directly to the regional office in Kansas City, Kansas. B.O.P. policy explicitly allows for this kind of appeal in cases where an A.R.R. is rejected without an explanation that allows for the reason it is rejected to be corrected so the A.R.R. can be resubmitted. I got a response to this appeal around the same time I got a response to my letter to the “Coordinator”, both responses were completely nonsensical!

The response I got from the coordinator didn’t make any sense at all, and it completely ignored my assertion that the A.R.R. was not untimely. The Administrative Remedy Clerk, “M. Joy”, stated “A review of our records indicates you were instructed in the remarks section [of the rejection notice] that you had to have in writing from your Unit Team that you were not properly informed of the Administrative Remedy process. You failed to provide this information…”

So, I wrote “M. Joy” back again, and tried to explain again as plainly as I could that my A.R.R. was not untimely; I gave the specific dates of the incident involved to show that it occurred less than 20 days ago, so having a written explanation from Unit Team made no sense. But, of course this second letter made no better progress. The response I got was again nonsensical, this time clearly confusing my first A.R.R. with the new (and separate) one. So I wrote yet again, pointing out the confusion by giving specific A.R.R. filing numbers, and yet again I got another completely nonsensical response that, yet again, completely ignored my very plainly stated observances.

And at the same time as I was going back and forth with the institutional clerk, I was bantering just as insanely with the regional office. The appeal I had sent to Kansas City was also rejected without review because, “You did not provide a copy of your institutional administrative remedy request or a copy of the response from the warden.” So, I returned it to the regional office again, with a cover page that explained that there is no “response from the warden” because the A.R.R. was rejected, and that’s why I was appealing. They returned it again, with another rejection notice, giving the exact same reasons: no “response from the warden”.

At this point I just gave up. It was clear to me that we weren’t communicating, and I doubt if we were even speaking the same language (They apparently were speaking some institutional dialect of “legaleze” that I obviously wasn’t able to comprehend).

(To give you an idea of how this language barrier is set up, consider a memo I saw just a few days ago from the warden’s office: It said explicitly that all letters to the warden from prisoners would be automatically rejected, without explanation, if they did not contain a specific phrase at the top of the letter indicating the status of the prisoner’s intentions. If that makes no sense to you then welcome to the club! The point of course is that if you missed this memo, or any of the thousands of memos like it, then your ability to communicate with institution staff is clearly restricted, severely! And I’ve missed a lot of memos!)

I’d been keeping my attorney appraised all along, and he had agreed long ago that after I’d exhausted all the institutional remedies that he’d help me take the matter in court, and even file the actual documents for me as my attorney. So, when I’d informed him about the repeated nonsensical replies I was getting to all my requests for “remedy” he agreed that it was time to file a legal suite. He also expressed (half jokingly) his surprise that I suddenly seemed willing to engage the system on its terms (i.e. legally). That actually bothered me. But, in my mind, as long as I wasn’t asking the system for “justice” (for me, that would be like asking a man for love while he was raping you) then I was still being true to my principles. And as far as I was concerned I wasn’t asking for “justice” (i.e. I never once accused Mr. Edwards of lying, or Ms. Bayless of abusing her authority in any of the “remedies” I filed – and I was always very explicit in my intention of “correcting an error” and not “seeking justice” of any sort).

But, when my attorney sent me a copy of the “Jailhouse Lawyer’s Handbook”, so I would understand what he needed from me in order to file a lawsuit, I was aghast! Right on the cover of the handbook was the subtitle: “How to Bring a Federal Lawsuit to Challenge Violations of Your Rights in Prison”. And if that weren’t bad enough (I don’t recognize any so-called “rights” that the system claims I have – which is essentially the reason I refused to invoke my “right to appeal” my death sentences in the first place, and the reason my attorney was surprised by apparent change of heart), in a note from the editors, on the first page of the handbook, they refer directly to the “struggle for justice”, which to me is the most futile (and ignorant) struggle of all. To parody Tina Turner, “What’s justice got to do, got to do with it? Who needs the law when the law can be broken?”

The handbook made me realize that I had come to a line that I can’t cross. I’d rather die first than ask the system for justice. Maybe (probably) I’m being ignorant. But, I’ve never been ashamed to say that my ignorance defines me. The “epiphany” that I had that caused me to stop killing and turn myself in didn’t change my views, it only made me realize what my views were (i.e. limited and selfish). So, there will be no lawsuit, and I will accept this whole fiasco concerning my attempts to “remedy” the “error” concerning my access to prisoner e-mail as clear evidence of the system’s fundamental inability to function with any semblance of sanity.

(Note: As evidence of my ignorance, I am compelled by my desire to be honest to admit that Shasta, the child I had intended to kill but returned home instead after I “woke up” (i.e. realized my own insanity), did essentially in fact “ask” me to “love” her, even at the very moment I was about to crush her skull with a large rock. In light of this, and the ultimate effect it had (I threw the rock down and took her home, in effect trading my own life for hers at that point, which the Bible calls the greatest love of all) is a clear indication that my aversion to asking the system for “justice” is born in ignorance. Though, I’m not sure the comparison is fair, because even though I refuse to ask the system for justice on its terms, I am still “essentially” asking the people caught up in the system for justice on nature’s terms, in much the same way Shasta asked me, the man behind the mask, for love. In other words, she didn’t ask the monster for a kiss, nor did she ever say the words, “will you love me”. And so I will not file a lawsuit (akin to a kiss), nor will I ever say the words, “give me justice”. But, make no mistake, it is justice I desire, not from the monster we call the Justice System, but from the people behind that mask – from society itself.)