~. Testing for AIDS ....
A Public Health Persp

.... p. 10

:l'"l1 DC Juvenile Case
.

NPP, PDS Sue Over
Conditions

p. 12

• Community Service
Sentencing
Is it a real alternative?
~

p. 13

--<ontinued from front page

History of the Case
Before World War I, when Oklahoma was still enjoying its frontier vitality, Kate Barnard was elected as the first
State Commissioner of Charities, the
equivalent of Director of Corrections.
"Our Kate", as she was called, was a
courageous social reformer who established a system whereby inmates who
chose to rehabilitate themselves through
work programs could gain early release
as a reward. Conditions at the Oklahoma State Reformatory at Granite and
the Oklahoma State Prison at McAlester
("Big Mac") were to be spartan but sanitary, and the administration was to be
strict but fair. However, "Our Kate," although beloved by the public, challenged
too many establishment interests during
her tenure, and in 1912 the legislature
reduced her department's appropriation,
except for her salary, to nothing.
Efforts at building a humane correctional program were abandoned after
that, and each institution became a political fiefdom, ruled by wardens who bestowed pork barrel favors and unmercifully punished fractious prisoners and
errant staff. The classification system so
painstakingly developed by Barnard had
deteriorated: long-termers and juveniles
were routinely thrown in cells together.
By 1930, "Big Mac" was bursting at the
seams, its population having climbed to
219% of capacity. A system emerged in
Oklahoma which paralleled the brutal
pattern characterizing American, especially Southern, penal history.
Inmates were often put into the
"crib" for punishment, strapped into unnatural and painful positions, and subjected to water torture; they were also
made to stand in a circle, three feet in
diameter, for an undetermined length of
time in the hot sun or winter weather.
If the prisoner put one foot outside the
circle, guardsthreatened to shoot.
By 1970, little had changed. Prisoners were still thrown into the hole,
naked, for months on end, without light
or ventilation, and denied medical attention, adequate nutrition, and exercise.
Sadistic guards routinely gassed prisoners. Sanitation was non-existent, racial
segregation institutionally mandated, and
Judge Bohanon later called the access to
legal assistance and material "a joke."
Mail was censored, and religious freedom severely curtailed, if al!·~wed at all.
Prisoners were not only housed two,
three and four to a cell but they also
slept in hallways and fire exits. By 1972,
the Oklahoma State Prison held 2,350
2 WINTER 1986

prisoners. With an incarceration rate of
over twice the national average, the
state also kept prisoners for 50% longer
than the average and had a 70% recidivism rate. For the maintenance of any
order they had become dependent on
the use of gassings, beatings, and drugs.'
The first rift in this barbaric system
came in April of 1972, when a prisoner
named Bobby Battle filed suit in the
United States District Court, alleging
that conditions of confinement within
the Oklahoma State Penitentiary violated the constitutional prohibition
against cruel and unusual punishment. In
keeping with the "hands off' doctrine of
most courts at that time, the federal
court in Oklahoma was reluctant to become involved in state proceedings, especially those involving prisons. Few attorneys were willing to take such cases
because they were unpopular, costly to
prepare, and there was little or no
money in them. Ultimately, it was the
intervention of the United States Department of Justice which made it possible to fund the massive discovery and
seemingly endless compliance hearings in
Battle v. Anderson. Until the complete
policy reversal of Justice's Civil Rights
Division under the Reagan Administration in the early I980s, the Department
played a major role in litigating the case.
Battle was consolidated with numerous other prisoner complaints re'john Thompson, "Why Our Prisons Exploded,"
The Oklahoma Observer, October 25, 1983, pp.8,9.

ceived by the court, and the Oklahoma
ACLU (whose litigation budget was
$2,000 per year) was asked by the Chief
Judge to supply an attorney to represent
the inmates.
The case interested Stephen Jones,
an ACLU cooperating attorney at that
time, who was assisted by a recent law
school graduate, Mary Bane. Bane played
a major role in the litigation over the
next four and a half years, eventually to
be succeeded by Tulsa lawyer Louis
Bullock.
Battle v. Anderson alleged violations
of the right to due process and equal
protection under the law; free speech;
access to the courts; and the Eighth
Amendment prohibition on the infliction
of cruel and unusual punishment.
It seemed, though, that no one in
Oklahoma was listening. The Battle trial
had not even begun before Oklahoma
reeled in the shock of a riot and the
burning of "Big Mac." On a sweltering
day in late July of 1973, smoke and
flames filled the rec yard, and the word
went out over the public address system: "We've taken over ... it's a revolution. Come on and help us." The news
media carried the story to the people of
Oklahoma, and the suffering of over
2,500 of its citizens was no longer a
well-guarded secret. Where Battle v. Anderson had failed to garner much notice,
the riot and burning captured the attention of the public and the legislature.
Some observers give equal credit to the
uprising and the lawsuit for the eventual

,

The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N.W.

Washington, D.C. 20036

JAN ELVIN
Editor, NPP JOURNAL

(202) 331-0500

ALVIN J. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

ALEXA FREEMAN
EDWARD I. KOREN

MARY E. McCLYMONT
NKECHI TAlFA-CALDWELL

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

DAN MANVILLE
Research Associate
LYNTHIA SIMONETTE
LORNA TUCKER

STAFF ATTORNEYS
ADjOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
JULIA CADE
Public Information Assistant

The National Prison Project is a tax-exempt foundation-funded project of the ACLU Foundation which
seeks to strengthen and protect the rights of adult and juvenile offenders; to improve overall conditions in
correctional facilities by using existing administrative, legislative and judicial channels; and to develop alternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the stipulation that the National Prison Project
JOURNAL be credited with the reprint, and that a copy of the reprint be sent to the editor.
The JOURNAL is scheduled for publication quarterly by the National Prison Project. Materials and
suggestions are welcome.
The National Prison Project JOURNAL is designed by james True.

I

I

Photo by Rondy Pruitt

improvement in the Oklahoma system.
Official recognition of the problems,
however, had been slow in coming: one
week before the riot, Governor David
Hall had delivered a speech in which he
cited prison reform as one of the great
accomplishments of his administration.
Three minutes before a 7:30 a.m.
deadline, when ~n all-out assault by the
Highway Patrol and the National Guard
would have begun (as occurred after the
Attica uprising), prisoners released four
of the 21 hostages. The rebellion began
to calm. Total destruction added up to
four people dead, many more injured,
and 24 bUildings either severely damaged
or decimated. Property damage
amounted to more than $30 million.

The 1974 Order
Nearly two years after the suit was
filed, and nine months following the riot,
Judge Bohanon issued a 37-page order
[376 F. Supp. 402 (1974)]. He found that
the riot had exacerbated an already desperate situation. Prisoners had been on

Photo by Rondy Pruitt

24-hour lockdown for nearly a year,
forcing total idleness. Lost were any opportunities for involvement in educational and vocational programs, or physical exercise. Bohanon was dismayed by
prison records which revealed 19 violent
deaths, 40 stabbings, and 44 serious
beatings during the time period from
1970 through the day of the McAlester
riot in 1973; that included only officially

recorded violence. According to inmates, gassings and beatings of prisoners
by guards were even more routine, but
went unreported.
The court found evidence of racial
discrimination which violated the equal
protection clause of the Fourteenth
Amendment. Cell assignments were
made routinely on the basis of race, except in Maximum Security. Despite the
fact that this policy had been rescinded
in October of 1972, the practice continued: the reception area, the mess hall,
the barber shop, and the recreation yard
were all segregated, and all job assignments were made according to race.
Bohanon ordered that cellhouses be
integrated according to a ratio approximating the racial composition of the
population. Jobs could no longer be assigned on the basis of color.
At the initial trial in May of 1974,
Judge Bohanon sat and listened to outrage after outrage, brutality upon brutality. A captain who testified about the
--continued on next page
WINTER 1986

3

Photo by Randy Pruitt

--<ontinued from previous page
macing of a mentally retarded inmate
said, "He was just like a little kid, you
know ... he is just a nut and everyone
knows it." Then this same captain acknowledged having gassed another mentally retarded prisoner, admittedly not
dangerous, for the crime of "destroying
state property ... i.e., breaking spoons."
A prison chaplain testified that a prisoner was beaten during a disciplinary
hearing after balking at being told to
"go get a nigger haircut." The guard
"began to hit him on the head with his
gas gun or whatever instrument that he
carried." That prisoner was pistolwhipped inside the hearing room.
Use of mace or other chemical
agents for punishment rather than control was found to violate the Eighth
Amendment prohibition against cruel
and unusual punishment as well as Oklahoma law, which specifically outlawed
corporal punishment of prisoners. The
court found that guards were gassing
prisoners at McAlester for such misconduct as refusing to get a haircut or
4 WINTER 1986

shave, possession of contraband (like instant coffee) in the cell, destruction of
state property (such as breaking spoons),
and screaming for a doctor.
Medical facilities were found to be
grossly inadequate on both a routine and
an emergency basis. In addition, guards
and inmates screened medical complaints
and provided nursing care. The court
proceeded to detail minimum standards
for medical, dental and psychiatric care.
The judge concluded that correspondence to and from inmates had
been arbitrarily and unreasonably interrupted and delayed. Letters to any attorney other than one "attorney of record," to the federal courts, or to
federal government officials were not
granted the "sealed" privilege. Personal
correspondence was routinely opened,
censored, copied, and recorded. Even legal mail, often containing complaints
about the miserable conditions, was
opened regularly.
"You've got to understand," said
plaintiffs' attorney Mary Bane, "they
were just tearing up the prisoners'

pleadings and not mailing them out."
Judge Bohanon ordered an immediate halt to such censorship.
Muslim prisoners had not been permitted to hold religious meetings, nor
were they entitled to a pork-free diet,
as required by their religious laws. After
the riot, a Muslim minister said in newspaper accounts that he could neither
confirm nor deny that Muslim inmates
were involved, because they would not
let him into the prison. He had been
trying to get in for nearly four years.
Absolutely key to successful prosecution of the prisoners' lawsuit were the
depositions taken from correctional personnel candidly describing conditions
within the prison and the routine brutality by staff against inmates. The matterof-fact attitudes revealed in the depositions shocked and infuriated Judge
Bohanon.
"I don't think we convinced Judge
Bohanon until he sat down and read
those depositions," said ACLU attorney
Mary Bane. "Being the kind of judge he
is, he was totally incensed. Reading those

depositions would set any halfway
decent person's teeth on edge.
"They [prison officials] weren't
afraid of us, weren't afraid of the lawsuit. Their attitude was, 'Nobody's going
to interfere with us, how dare you poke
your nose in here.' It didn't faze them
one bit. It was such arrogance of power.
"They were continually thrOWing
Bobby [Battle] in the hole, for nothing,
and saying, 'You'll stop this,' but he
didn't stop. Four or five of them [prisoners] just wouldn't stop."
In summary, judge Bohanon ordered that the East and West cellblocks
of McAlester and Granite Reformatory
be closed, that the state end racial segregation, allow due process in disciplinary hearings, cease the use of corporal
punishment and chemical agents as punitive measures, stop the confinement of
prisoners in "subterranean isolation,"
provide adequate medical care and access to legal materials, and allow religious freedom.
The Oklahoma prison system would
meet constitutional requirements, ordered judge Bohanon, and he held hearings at about six-month intervals to
make sure of it.
For the first five years the state
stubbornly opposed the ruling. Oklahoma's already anomalous rate of incarceration climbed even higher. Crowding
and sanitation failed to improve. Medical
and psychiatric treatment and law library
judge Bohanan is now 84 years
old, although he looks younger. He
has a shock of white hair, rosy
cheeks, and muttonchop sideburns.
He is modest about his role in prisoners' rights history:
"I really knew nothing about
prison matters. Through this case I
did a lot of studying and reading. The
justice Department as well as the
ACLU put QJl exceedingly good evidence of past behavior and the necessary things a court must do to correct the abuses. Those lawyers were
exceedingly well-trained and
competent."
NPP: When you first took this case,
did you see that it might be of historic importance?
judge Bohanon: Oh, yes. Oh, yes. I
saw it was a very important case.
After reading those depositions ...
how could they treat people like they
did? It was shocking. Literally
shocking.
NPP: Did you believe at the time
that federal court intervention was

access still fell short. Two inmates were
gassed to death for minor infractions.
The classification system was still faulty,
allOWing some inmates to prey upon
others.
By 1976, the prison population had
increased to over 4,200. In 1977, judge
Bohanon reluctantly reopened the case
and placed a ceiling on the inmate population. Prisoners, he ordered, would be
allowed 60 square feet of cell space instead of the 17.5 square feet which was
common, and he ordered that the firetraps, inadequately ventilated bUildings,
and foul and unsanitary units be eliminated or cleaned up.
In October of 1977, the United
States Court of Appeals for the Tenth
Circuit upheld judge Bohanon's order. In
perhaps the most important and enduring legacy of the Battle v. Anderson case,
the Court of Appeals ruled that a prisoner, while he does not have a federal
constitutional right to rehabilitation, ;s
entitled to "be confined in an environment which does not result in his degeneration or which threatens his mental
and physical well being." [564 F.2d 388
(I 977)].I
judge Bohanon was impressed by
the investment of hundreds of millions of
'This important principle was first enunciated by
Judge Frank M. Johnson, Jr., in the Alabama prison
case in 1976. Pugh v. Locke, 406 F.Supp.318
(M.D.Ala 1976).

the only way to turn things around
[at the prison]?
judge Bohanon: There wasn't any
question about it. Court intervention

dollars into the system and the new
spirit of cooperation ushered in by Governor George Nigh's administration in
1979. Overcrowding, nonetheless,
strained the system beyond its capabilities. Louis Bullpck, ACLU attorney for
the prisoners, told the judge he was
afraid that the system was on the verge
of being destroyed by dangerous overpopulation. Looking back, Bullock now
says, "By 1980, ~klahoma had one of
the best prison systems in the nation.
The prisons were new, they were generally well staffed, and very importantly,
they were single celled. Then, with the
Supreme Court decision in Rhodes v.
Chapman, 452 U.S. 337 (1981), the district court was forced to modify its orders which prohibited double ceiling."
Bohanon believed that the influx of prisoners into the system designed for far
fewer was pushing it back into the "twilight" of constitutional compliance.
Bohanon recused ~imself from the
case in 1983. "I think the Rhodes case
really made me get out of it. They have
everything now that Rhodes calls for,"
says the judge. Costly improvements in
conditions had been made, but there
were still many problems. Because of
the population increases and the need
for money, "I felt like I had to either
deny further relief or start taking it over
and hope to find money to run it
through a receiver. By that time, I had
--<ont;nued on next page

had to be. If it wasn't for the court,
it might be just like it was in the last
century. People hate to spend money
to feed, to doctor, to care for, to
clothe, to house a prisoner. They
didn't even have a doctor down
there. But it was a shocking thing for
people to understand that the federal
court had the duty under the Constitution to see that the state penitentiary met certain standards of treatment and it took a long time for it to
soak in.
NPP: What role did the riot and the
burning play?
judge Bohanon: It made the Governor and others want to punish the
people for the riot. And they were
punished. They were put two, three,
four to a cell, fed little or nothing,
locked up for a month at a time, no
exercise; they did everything to punish them not only to show that they
were mad, but that they were determined not to do anything to alleviate
the situation. They made their bed,
they could lie in it.
WINTER 1986

5

Prisoner frustration continued to mount Several disturbances occurred after the 1973 riot, including the burning of the isolation unit,"the rock;' in 1974.
---continued from previous page

created so much ill will. ... In particular,
the Civil Rights Division of the Department of Justice had turned the tables on
me when they pulled out. Without the
Civil Rights power and money, there
wasn't much I could do."
When asked what effect the Justice
Department's pullout had on the case,
Louis Bullock replied, "Actually, Justice
didn't pull out, they switched sides. If
they had pulled out, which is what we
asked them to do but which they refused to do, their actions would not
have been nearly as destructive. By
throwing their weight against the plaintiffs, they seriously changed the dynamics
of the case. I have serious reservations
about whether the United States Government should ever take the side of
state governments against civil rights
plaintiffs ... The concept of the Justice
Department's Civil Rights Division as an
intervenor against civil rights plaintiffs is
an 'Orwellian' reality which I find
frightening. "
Like the French saying, "The more
things change; the more they stay the
same," the situation in Oklahoma has improved remarkably, yet remains caught
in a cycle of overcrowding and violence.
According to Bullock, "For all intents
and purposes the prison is closed and a
new one has been built. Also dramatic is
the fact that such things as racial integration and due process, as well as certain
measures of religious freedom have become accepted day-to-day occurrences ... Violence and the threat of
violence continue to be prevalent in the
lives of these inmates, and for all of the
due process protections, the reality of
life in prison is still one of arbitrary authority wielded by the officials ... The
6

WINTER 1986

due process merely seems to be a window dressing provided to avoid judicial
review of what is otherwise a predetermined and arbitrary decision. The lawsuit
did make a difference. The record is
quite clear that it is only because of litigation that these improvements were
made. The Battle v. Anderson lawsuit was
the central focus for all reforms,
whether court ordered or 'state
initiated.' "
Bobby Battle
Life in prison is predicated on mistrust and hostility. For some men and
women inside, presenting grievances to a
court of law regarding unconstitutional
living conditions may be the key to reversing a lifetime of failure; a way to
build confidence and gain respect. It can
also provide the rare opportunity for
lasting friendship between inmate and
lawyer. The adversarial relationship between a prisoner and his keepers will
most likely be aggravated by the filing of
a lawsuit, yet it allows one of the few
legitimate expressions of resentment and
hope for change. As Richard Korn,
noted expert on prison psychology, observed, "By persuading outsiders to acknowledge their terrible circumstances,
prisoners can obtain confirmation that
their difficulties are not 'merely' internal."3 The process of becoming a prisoner-plaintiff can strengthen the thin
thread that binds self-respect and the
reality of life within a closed and often
cruel society.
What drives a Martin Sostre, a Pat
Canterino, a Bobby Battle, a Dwight
Duran, or a David Ruiz forward out of
3Richard R. Korn, "Litigation Can Be Therapeutic,"
Correaions Magazine, October 1981, pA8.

forsaken surroundings in search of a
measure of dignity for themselves and
their fellow prisoners? Where does an
ordinary person, however alienated under other circumstances, acquire the
courage and the will not only to do the
work to grasp the necessary legal skills,
but to follow through, sometimes at
great personal risk? Those "jailhouse
lawyers" who undertake such a task are
often subjected to harassment, both psychological and physical, by prison
administrators.
Of course, a lawsuit documents
prison life only through the eyes of lawyers and expert witnesses. It leaves out
the desperate search for self-respect in a
place devoid of any dignity of its own.
Here is a small part of the story of one
man who, in that search, used the law in
his own behalf and on behalf of his fellow prisoners.
"No one had ever taken them on
before," said Mary Bane, "I think it took
guts."
According to Louis Bullock, Bobby
Battle is "charismatic ... he has a phenomenal amount of courage and intelligence. If it had not been for his courage
and his intelligence the lawsuit would
never have gotten off the ground. His
refusal to buckle under heavy pressure
during those first years is to be
credited. "4
"Over the years," said Oklahoma
ACLU Director Shirley Barry, "you hear
about all kinds of terrible abuses, and
people want something done about
them. However, those who will put up
with the attacks and with an unsympa'Clyta Foster Harris, "A History of the Oklahoma
Prison System-1967-1983," Unpublished Ph.D.
dissertation, University of Oklahoma, 1985.

thetic public are few and far between,
and they certainly do suffer in the state
of Oklahoma. Bobby Battle is one . .. It
takes a special kind of courage."
"I saw such a division between
what was supposed to be and what
was," says Battle, "and that strengthened
my belief in what was right and what
was wrong . .. motivated me to fight for
the rights of prisoners and other oppressed people."
No stranger to political organizing
within the walls, "Bobby is a virtual hero
in Oklahoma among prisoners," according to Bullock. "He is a symbol to activist inmates."
In 1970, Captain B.E. Mann beat a
pris(:mer named Raymond Fowler, who
was reported to have weighed under
100 pounds. Several inmates, including
Battle, looked on in horror as 275pound Mann pulled Fowler out of a disciplinary hearing, kicking and beating him
nearly senseless with his gas gun. The
next afternoon hundreds of prisoners refused to return to their cells, in a sitdown strike led by Battle and several
other prisoners. The assault infuriated inmates who were already angered by the
appalling and fearful conditions under
which they were confined.
Several of the inmates wanted to
take hostages and make demands
through force, but Battle persuaded
them to conduct a strike in the yard,

The Killing

where they insisted on seeing the Governor. Having pooled their money for
coffee and sandwiches, they sat in the
rec yard and waited. Suddenly, they
heard what sounded like a tractor,
looked up and saw a huge tank barrelling
towards them. The gun was never fired,
and the prisoners remained in the yard
at Battle's urging, only slightly calmed by
his assurances that "if they fire, they'll
kill us anyway, so there's no sense in
running."
Battle and the other strikers spent
the next 90 days in the hole. Physical
abuse of prisoners by guards became
even more flagrant after that.
Chosen by their peers, Battle and
five others submitted a list of grievances
to administration officials. It was that
list, drawn up in 1970, which laid the
groundwork for Battle v. Anderson. "We
asked them to make changes, tried to
clear the air. We realized it couldn't
happen overnight. But things were getting so bad. Guards were openly beating
prisoners," Battle said. He tried to find
out about other prison systems, such as
Denmark, Sweden, and other states in
the U.S., to see how prisoners were
treated there. He could see that by almost any standard, Oklahoma prisoners
were in a very bad way.
Battle was no favorite among prison
administrators because of his activity as a
writ writer. One of the grievances filed

of Robert Forsythe

"After the riot," said Bobby Battle,
"they brought me back to McAlester
and locked me up on 'the rock' [isolation] for months. Nobody ever told me
what I was charged with.
"The rock was a bunch of small
cells with solid steel doors-real old,
dungeon-type cells. The bed was a slab
of concrete, that's why it was called the
rock.
"There was a kid in the trusty
building named Robert Forsythe, who
they'd found with some cash on him,
maybe ten dollars. That was grounds for
being thrown down into the rock. In
May of 1974 he came down there, at
the same time we got word that the
guards were planning an assault on the
leaders of the riot.
"We heard about it from a convict
medic assistant who overheard some officers talking with the warden about
how to combat the ongoing rebellion.
The best way, they said, was to get the
'leaders.' And the leaders were housed

on the rock where they'd brought this
innocent kid for haVing too much
money. We prepared for the gassing by
getting as much mineral oil [to coat the
inside of their throats and stomachs] as
we could, that's the only protection we
had. This kid's out there and he don't
know anything and we can't teach him
everything he needs to know to protect
himself. In come 15, 20 guards, and
they've got all kinds of gas ...
"Forsythe's the one who died. Robert Forsythe. And that's how he lost his
life. When they came that day to gas,
nobody was getting up any noise, nobody was talking. It was real quiet. They
came in, one or two of them walked
down the rung, couldn't get anybody to
smart off or anything. The first thing
they did was cut off the water to the
toilets, which means you can't flush out
the gas. Then they cut off the fan. When
they locked all the shutters on all of the
windows, that's when I knew ...
"It seemed like hours they were

by the prisoners requested that they be
allowed to purchase their own law
books, to which the warden responded:
"Inmates may not purchase their own
law books. This practice enables certain
talented inmates to become professional
writ writers which results in the courts
being flooded by frivolous writs and the
more gullible inmates being milked of
their few assets-Leo another opportunity for an inmat~ racket to flourish."
And, as the inmate handbook distributed
at orientation pointed out,
You are bound to meet 'jailhouse lawyers: prison wise guys and know it ails
who will no doubt tell you to ignore
these rules and regulations. Pay no attention to them; they mean you no good
... Don't let another inmate 'Rib' you
into doing something that you know is
not right Just use common sense, good
judgment, conduct yourself like a gentleman at all times and Good Luck.
The grievance list included a request that prisoners sentenced to death
be allowed outside once in awhile. The
only time death row prisoners ever left
their cells was for an occasional visit, or
for the final walk to the execution
chamber.
"When you see those grievances,
you can see that we were all but crawling," says Battle, "trying to get them to
just give us a little air."
-continued on next page.

setting those cannisters off, and the gas
was thick. The officers had all come prepared with gas masks. Forsythe asked
the running boy named Alvin to find him
a pen, so much of that gas was eating his
insides up. A ball point pen, he wanted
to stick it through his armpits and tear
his veins out so he could die real quick. I
sent him some mineral oil after I drank
half of what I had, but it was too late.
He didn't know what to do, and he just
stood up and breathed all that gas. He
didn't know."
Four other prisoners were hospitalized as a result of the gassing, three of
them for a week. The State Medical Examiner, Dr. A. Jay Chapman, found that
Forsythe's death was caused by "severe
inflammation of the entire airway from
the area of the larynx and including the
lungs."5 Nevertheless, he ruled the death
"accidental." Two guards were transferred to other correctional facilities and
one was fired in connection with his
death. Under pressure from an FBI investigation, Warden Sam Johnston resigned. No charges were ever brought.
'Harris, p.1 08.

WINTER 1986

7

I am generally satisfied with the
effort we have made in trying to accomplish the task. Of course, I wish
that Judge Bohanon had not withdrawn
from the case. I believe that if he had
not, there are some things which stiJI
could have been accomplished, including major improvements in the manner
in which women are treated by the system. The real problems which eventually prevented the plaintiffs from realizing the success which I believe could
have been achieved were those caused
by the Supreme Court, particularly in its
Rhodes decision, and by the Justice Department's political operatives. Those
created too strong of a tide for even
those judges who knew what needed to
be done. My personal regret is that we
did not achieve the success I had hoped
for. I do not regret that we tried.
-Louis Bullock

In filing the lawsuit, Battle showed
he had done his homework. He knew
that the allegations of racial segregation
might entice the federal government to
join the lawsuit on behalf of prisoners in
order "to compel ... integration within
the Oklahoma State Penitentiary as reqUired and is acceptable by the Federal
Government."
While Battle's role in the lawsuit
was very important in the first stage, he
has not played a significant role in the
litigation since 1975. Released from
prison in 1981, he has continued his fight
on other fronts, forming a group called
the Committee Against Prisoner Exploitation (CAPE), aimed at registering exconvicts to vote. He uncovered a Iittleknown state law which allowed convicted felons to vote after their prison
term had expired, even if they had not
been pardoned by the governor. "This
will help ex-offenders," said Battle, "get
back into the mainstream. They are
pushed together . .. but they have no
representation or way to approach
legislators."
In November of 1984, Bobby Battle
pleaded guilty to one count of a federal
indictment alleging possession with intent to distribute an ounce of cocaine.
Battle, then 47 years old, told U.S. District Judge David Russell that he sold cocaine to someone he thought was a
friend but who turned out to be a government informant. Some consider the
arrest a frame-up in retaliation for his
activism against the state. While Battle
did in fact commit the crime, many feel
8 WINTER 1986

Oklahama ACLU Staff phato

Standing outside the federal courthouse in McAlester in 1976 are counsel for plaintiffs Mary Bane,
Louis Bullock, and Charles Dry.

he may have been set up by law enforcement officials who were determined to "help" him fall back into his
old ways. He had already spent 18 years
of his life in prison. The judge handed
down a four year sentence on the drug
charge, and ordered Battle to be taken
into custody immediately, as a threat to
the community. He denied requests
from both the defense and the prosecution to give Battle 30 days to get his affairs in order.
"Bobby Battle deeply disappointed
me," says Louis Bullock. "People like
simple heroes. Battle was a man who
fought for reform and who had given up
on his past illegal ways. People could be-

lieve in him, listen to his message and
hear it with clarity. When he committed
another crime, he kept his voice from
being heard with any clarity. He was no
longer a Simple hero. He was a complex
man and what he said became discordant. He reaffirmed some people's view
that inmates are beyond rehabilitation."
According to Bullock, history has
shown that Battle fares better inside institutions than outside. "Even when he's
out of prison, he's fascinated by and interested in what is happening in prison.
To be successful on the outside, the guy
has to quit talking about prison."
"I simply cannot disassociate myself
from prisoners when I am out," argues

Battle. "People who say that don't understand me. To me, any person who
lives out there in Texarkana on the poverty level is a prisoner. Those are the
people who fill up the prisons."
He would like to see a prison
which teaches inmates how to live on
the outside. "When I got out of prison I
didn't know how to eat. I went to dinner with my lawyer and I was ashamed
because I didn't know how to handle the
utensils."
Battle is currently serving out his
sentence at the EI Reno Federal Correctional Institution in Texarkana, Texas,
where prison officials refer to him as
"Mr. Battle." Slightly built and softspoken, his power comes from within. Despite his limited education (grade-

school), he is articulate and chooses his
words carefully.
"Looking back on my efforts, and
the efforts of others, I feel good. Especially when I see these young folk coming into the system today ... to see how
much it's changed since my McAlester
days. It's better than it was."
Like many prisoners, Battle's sensitivity to injustice is finely tuned, and his
refuses to die. Battle points out that
most prisoners at EI Reno are Hispanic,
but not one of the three unit managers
can speak Spanish. "I have spent a lot of
time trying to explain to these people
what they're charged with, or just helping them write a letter. They have come
into a situation of slavery where there's
no help for them."

Bobby Battle's long struggle against
injustice has earned his name a place in
prisoners' rights history. One hopes that
the self-respect he gained in that fight
will help him find a place for himself in
another world, outside the walls. III

Jan Elvin is the editor of the JOURNAL
Much of the material for this article was gathered from personal interviews with Ma~ Bane, Shirley
Barry, Bobby Battle, Judge Luther Bohanon, and Judge Tom Brett; correspondence with Louis Bullock; and
material from the Stephen Jones Collection, Western History Collection,
University of Oklahoma. My thanks
for all the time these individuals gave
me.

Jail Inspections Trigger Improvements
Greye Verstraete
In 1982, the ACLU of Montana
concluded a successful conditions lawsuit
against the Yellowstone County Jail in
Billings, working in conjunction with the
ACLU Mountain States Regional Office.
The Yellowstone County Jail was considered by many to be one of the better
jails in the state. This victory, compounded by numerous complaints received from inmates in other jails,
prompted the ACLU-MT to instigate a
series of jail inspections in January 1985
to determine if further lawsuits were
warranted.
Now, nearly two years later, the
ACLU-MT has completed tours of 16 of
Montana's worst facilities. Not one lawsuit has been filed, but something surprising and ultimately more productive
has happened. Through these inspections, the ACLU has been able to engage in open and frank discussions with
local officials abOut conditions in their
jails. ACLU volunteer paralegal Greye
Verstraete, who directs the program,
has developed a professional relationship
with jail personnel, educating them
about jail standards and working with
them to make needed changes. With
few exceptions, local sheriffs have welcomed the ACLU, knOWing that its findings and, indeed, just its presence, can
help convince local governments that
funds are needed for jail improvements.
The generous publicity which has accompanied most inspections has helped to
educate the public and, again, to prOVide
the incentive to county boards to make
jails a priority.

These negotiations have resulted in
numerous voluntary improvements in jail
conditions. Exercise equipment has been
purchased or repaired and put into use.
Outdoor recreation facilities have been
constructed. Inadequate inmate rules and
regulations have been completely rewritten. Restrictions on rehabilitative
programs have been eased and jail personnel have received first aid training
and courses on jail management practices. Some facilities have added automatic sprinkler systems and secondary
exits for emergency evacuations. The
visits prompted many jails to give the
cell area a thorough washing, to fumigate for pests and often to repaint.
Some jails were inspired to purchase
new towels, blankets and coveralls for
the inmates.

... The ACLU has been able to
engage in open and frank
discussions with local officials
about conditions in their jails.
Only one county has resisted the
attempt to inspect their jail. While they
did not actually refuse entry, they did
demand an inspection fee of $15 per
hour, plus excessive fees for photocopies. The ACLU publicly protested these
outrageous charges, which prompted a
local corporation to step in and pay for
the inspection. In two other instances,
the request for a jail inspection has
come from the community itself. In fact,
one county, located in a remote corner

of the state, has decided to fund an
ACLU inspection of their jail, from their
own budget.
This year, as a result of the Jail Inspection Program, the ACLU-MT was
asked to participate in a statewide Jail
Recodification Committee sponsored by
the State Board of Crime Control. The
task of the committee is to revise Montana statutes relating to jail management
and conditions. The ACLU is working
with the Montana Sheriffs' Association
to incorporate current national jail standards into state law, as well as advocating further improvements in the code
such as "good time" provisions, the installation of a state-run jail inspection
program, educational programs for inmates, mandatory first aid training for
jailers, menus planned by registered dieticians, and criminal penalties for abusive
jailers. The committee's recommendations will be presented to the Montana
Legislature in January 1987. Once counties know what is expected of them under state law, it is believed that more
changes in Montana jails will be forthcoming. Clear state standards will also
make it easier for inmates to challenge
inadequate conditions.
This process, spearheaded by the
initial lawsuit, and involving public education and a cooperative effort with local
and state officials, has resulted in the
beginning of meaningful change in
Montana's jails. III

Greye Verstraete is a staff paralegal with
the Montana Civil Liberties Union.
WINTER 1986 9

AIDS IN PRISON

AIDS Policies Raise
Civil Liberties Concerns
Larry Gostin
Testing for the AIDS virus and segregation of AIDS carriers raise extremely important civil liberties questions in contemporary corrections. The
NPP survey revealed 420 cases of fully
diagnosed AIDS cases in state prisons
across the country. Given the AIDS-toinfection ratio used by the U.S. Centers
for Disease Control, there are between
21,000-42,000 prisoners infected with
HIV. Up to 30% of these prisoners will
probably develop some serious manifestations of AIDS. More importantly, this
figure may continue to double every
year. 2 Corrections departments have responded to the AIDS crisis in a variety
of ways: 90% use the ELISA test to detect antibodies to the AIDS virus (human immunodeficiency virus-HIV); 8%
have already instituted systematic
screening of the prison population; virtually all states segregate prisoners with
AIDS; and educational programs have
been undertaken by most systems. 3
A policy of full-scale screening and
segregation may be adopted throughout
the country within the next five years.
Erosions of the civil rights of prisoners
in recent years suggest that the courts
will uphold prison discretion to test and
segregate, provided there is a colorable
public health rationale. 4 Screening sets
the stage for widespread invasion of privacy for prisoners, under the guise of
public health, while segregation may take
place under conditions which trigger
Eighth Amendment violations.s In a recent report for the U.S. Assistant Secretary for Health, my colleagues and I at
the Harvard School of Public Health ar-

'Gostin, "Acquiree Immune Deficiency Syndrome:
A Review of Science, Health Policy and Law",
Health Matrix, Vol. IV, no. 2, pp.3-13 (1986).
2Curran, Meade, Morgan, Hardy, et al., "The Epidemiology of AIDS: Current Status and Future
Prospects," Science, Vol. 229, pp.1352-7 (1985).
3Vaid, "NPP Gathers the Facts on AIDS in Prison,"

NPP JOURNAL, Winter 1985, p. I.
'LaRocca v. Dalsheim, 120 N.Y. Misc. 2d 697
(1983) (upheld prison decision to segregate AIDS
prisoners but not to maintain a central AIDS unit);
Cordero v. Coughlin, 607 F.Supp. 9 (S.D.N.Y. 1984)
(rejected equal protection claim that segregation
of AIDS patients resulted in inadequate social, rehabilitative and recreational activities).
'See, e.g., Cordero v. Coughlin, 607 F.Supp. 9
(S.D.N.Y. 1984); Cody v. Hillard, 599 F.Supp. 1025
(D.S.D. 1984).
10

WINTER 1986

In the Winter 1985 issue of the
JOURNAL we reported the results

of an NPP survey of state
correctional systems which
identified both the scope of AIDS
in prison and what states were
doing to manage its occurrence. In
the following issue we provided
some medical background about
AIDS, and discussed two of the
major policy questions: whether to
screen inmates for the HIV
antibody, and whether to segregate
inmates with AIDS related
conditions. We also broached some
of the emerging legal issues. In this
article, Dr. Gostin gives his views
on the above mentioned policy
questions from a public health
standpoint.
gued strongly against screening and segregation in prisons. 6

Public Health Objectives
Effective public health measures to
control the spread of AIDS in prisons
can be implemented without harming
the civil liberties interest of prisoners,
for the right to a healthy and safe environment is their primary right. There is
no direct conflict between public health
and civil liberties. Protection of the
latter should be seen as a means to
effectively achieve the former. The real
question is whether screening and segregation are effective public health measures, and whether there are less restrictive, more effective interventions
available.
Antibody screening and segregation
of AIDS carriers would be an effective
policy if HIV were an airborne virus, or
if early identification offered therapeutic
value to patients. Prisoners have the
right not to be exposed to a communicable disease by their association with
guards or other prisoners. But HIV is
·W. Curran, L. Gostin and M. Clark, "AIDS: A Legal and Regulatory Analysis," (1986) (avail. from
the National Technical Information Service, U.S.
Department of Commerce, 5285 Port Royal Road,
Springfield, VA 22161). See also, L. Gostin and W.
Curran, "The First Line of Defence in Controlling
AIDS: Compulsory Casefinding - Testing, Screening and Reporting," American Journal of Law and
Medicine (in press).

not spread through non-intimate contact. Several careful studies have shown
that, even in the close association of
family units and in hospitals, HIV has
never been communicated non-sexually.
HIV is transmitted almost exclusively
through the use of shared intravenous
needles and sexual intercourse. These
are the behaviors to be focused upon
and prevented.
The screening and segregation of
the prison population according to serological status does not in itself reduce
high risk behaviors. More effective public
health policies would stress broad educational efforts designed to inform inmates
about preventive and risk behaviors. Informing prisoners of the potential harm
in unsafe consensual sex, forced sexual
acts or intravenous drug use is essential.
While the real challenge is to discover
and prevent unhealthy behavior, prison
resources are being increasingly used instead to detect who is seropositive and
who is not.
Some state corrections departments also claim that screening is necessary as a diagnostic tool and that isolation of AIDS patients is necessary to
prevent immunosuppressed individuals
from acquiring infections in the prison
environment. Yet, if the purpose of
screening were purely diagnosis of AIDS,

A policy of full-scale screening and
segregation will probably be
adopted throughout the country
within the next five years.
then it would be administered only
where therapeutically indicated with the
prisoner's consent, and not on a systematic basis. Further, the limited objective
of protecting immunocompromised prisoners could be achieved without a mass
screening program by hospitalization of
AIDS patients where necessary on a case
by case basis. Finally, the HIV antibody
test is not in itself an adequate diagnostic tool and should not substitute for
comprehensive medical examinations and
laboratory tests.

Restriction of Rights Caused by
Prison Screening and Segregation
The widespread collection of information on the serologic status of prisoners and the isolation of AIDS carriers
unnecessarily invades the privacy of prisoners. The existence of a large collection of sensitive, personal data can have
serious consequences for prisoners if disclosed. In Delaware, for example, an arbitrator ruled that state corrections officers be given the names of HIV antibody
positive prisoners pursuant to a collective bargaining agreement. Disclosing an-

l

tibody status can expose a prisoner to
risk of assault while in prison and to loss
of future employment, housing and insurance when released.
Potentially, the segregation of all
seropositive prisoners could result in a
further health hazard within the segregated population. One of the basic principles of public health law is that the
control measure itself should not cause
harm to its subjects.? There is currently

The existence of a large collection
of sensitive, personal data can
have serious consequences for
prisoners if disclosed. . ..
[Education] includes explicit
information which encourages
safer forms of sex and the use of
sterilized needles.
no clear understanding of the natural history of HIV infection; up to 35% of
those with the infection will contract
the full-blown disease within a five year
period.s It is conceivable that repeated
exposure to the virus through sexual relations or needle use and/or less healthful living conditions could contribute to
onset of the disease. Given these risks,
to segregate all seropositive prisoners in
an environment with the likelihood of
repeated exposure to the virus may
pose a significantly increased health hazard. Staff recruitment in such an environment would be very difficult. Isolation in
inadequate facilities without sufficient
opportunity for social integration and
use of other prison facilities such as recreational and exercise resources could
also lead to serious psychiatric
disturbances. 9
The decision to impose mandatory
screening and segregation in prison facilities sends a harmful message to the public, as if the state were developing an
"AIDS colony." It conveys a leprosy image that will affect public perceptions of
the nature of the disease and how to
deal with it. It \viII also further damage
the reputation of prisoners in the segregated facility long after discharge.
Friends and potential employers would
'See Kirk v. Wyman, 65 S.E. 387 (S.Ct.S.c. 1909).
sH.W. Jaffe, AM. Hardy, Morgan W. Meade, et al.
"The Acquired Immunodeficiency in Gay Men,"
Ann. Intern. Med. 1985; 103: 662-664. D.P. Francis, H. W. Jaffe, P.N. Fultz, et aI., "The Natural
History of Infection with Lymphadenopathy-Associated Virus Tuman T-Lymphotropic Virus Type III,"
Ann. Intern. Med. 1985; 103: 719-722.
'Gostin and Staunton, "Rights of Prisoners: A Case
for Minimum Standards," in McGuire, Vaag and
Morgan, Prisoners and Accountability, London: Tavistock, 1985.

possibly know or seek information about
the prisoner's placement in the segregated facility and infer their disease status from that information.
If prison screening and segregation
were adopted as policy in geographic
areas at high risk for AIDS, substantial
parts of the prison population would
need to be housed in separate facilities.
Since most prisons have serious overcrowding problems, the building of new
"AIDS prisons" might be required. To
ensure safety, periodic re-testing of the
non-infected populations would also be
required to identify those individuals
who seroconvert. The financial and administrative costs involved in such a program are prohibitive.

Less Restrictive Alternatives to
Prison Screening and Segregation
Policies designed to impede the
spread of HIV in prisons should seek to
eliminate unsafe sexual and drug sharing
behaviors, already proscribed in prison.
Corrections officials can seek to reduce
these behaviors without instituting
screening and segregation. Comprehensive and continuing education about the
ways the virus is spread and on specific
risk reduction behavior must be implemented. This includes explicit information which encourages safer forms of sex
and the use of sterilized needles. While
such education is difficult in prisons
where these behaviors are not permitted, it is nonetheless necessary for maintaining the health of the prison population. Tackling the problem of coerced
sex in prison is essential, not only because of the public health implications,
but because it is a gross invasion of personal rights. Corrections officials should
establish stringent preventive measures,
whether or not the aggressor is seropo-

The District of Columbia Chapter of the American Red Cross is
sponsoring The American Red

Cross Conference on AIDS and
IV-Drug Use to be held Friday and
Saturday, February 27 and 28, 1987
at the Sheraton-Washington Hotel.
This conference is the first in the nation to deal specifically with the issue
of AIDS as related to IV-use. The
conference will have 300 participants
and will consist of three keynote
speeches, two panels, and 35 workshops. Workshops will examine IVuse/AIDS issues as they pertain to
organized religion, health and social
service, women and children, public
policy, scientific research, the neighborhood, and the "worried well."

There is no direct conflict
between public health
and civil liberties.

sitive. The intr,oduction of better lighting, increased staffing, staff training, and
improved supervision, monitoring and
enforcement to prevent such dangerous
activity should clearly be the major
priority. The pre!ience of HIV in America's prisons should be a strong reason to
re-double efforts in this direction.

Conclusion
Prisoners are likely to be subjects
for screening and segregation programs-not in order to promote public
health, but because prison populations
are easy targets due to their political impotence. Unproven control measures
not implemented Widely in the general
population are often first tested in
closed institutions where it is administratively easier. In the case of AIDS screening, the availability of a medical technology has inappropriately determined the
social policy. Screening and segregation
will not protect the health of prisoners,
will be a serious invasion of their privacy, and will divert attention from less
restrictive, more effective policy
alternatives. I11III
Larry Gostin is a lecturer in Health Law at
the Harvard School of Public Health and
the Executive Director, American Society of
Law and Medicine. He is also on the National Board of Directors of the American
Civil Liberties Union.

The Conference is undertaking a
special advocacy for the plight of the
IV-user with AIDS. It will ask the
hard questions society needs to address about addiction, pharmacology,
free needles, and HIV transmission
prevention. The heterosexuality of
most IV-users infected with HIV presents an excellent opportunity for the
virus' entry into the general population. The American Red Cross Conference on AIDS and IV-Drug Use, by
frankly addressing these sensitive
problems, is attempting to provide a
forum whereby the serious issues
which surround AIDS and IV-use will
receive Widespread public attention.
To register, contact Sheila Gallagher, (202) 728-6554.

WINTER 1986

II

JE.RRY M. v. D.C.

Settlement Reached
in Juvenile Case
Mary E. McClymont
Extensive and often exhaustive negotiations with officials of the District of
Columbia and their lawyers have finally
resulted in a court-approved settlement
concerning the three D.C. secure facilities for juvenile offenders. Under the
comprehensive agreement, reached in
july 1986, the District promised wideranging reform: closure of one of the facilities, Cedar Knoll; a major restructuring of the juvenile residential system; a
cap on the number of secure beds in the
system; and extensive improvements in
all aspects of resident living in the facilities. The District further agreed to the
appointment of Michael Lewis' as the
court's monitor under the settlement
and to the designation of a number of
expert consultants who will devise plans
to achieve compliance.
Jerry M. v. District of Columbia was
originally filed by the D.C. Public Defender Service (PDS) in March 1985 in
the local D.C. Superior Court. The National Prison Project joined in as cocounsel for the plaintiff class, which consisted of all juveniles residing in the
three secure facilities-Oak Hill, Cedar
Knoll, and the Receiving Home.
The suit was filed in the face of numerous long-standing problems at the
institutions, and the case was assigned to
the chief of the Family Division, judge
Ricardo Urbina. The suit alleged Fifth
and Eighth Amendment violations in the
District's failure to provide adequate
treatment and safe conditions of confinement for youngsters. The complaint also
alleged a violation of the D.C. statute
which ensures youthful offenders care
and treatment in as homelike a setting as
possible. 2 Discovery began in earnest in
November 1985 on a broad range of issues; over 50 -eepositions were taken,
and a large number of expert tours
were conducted. It is no secret that the
District has one of the highest detention
rates in the country for its youthful offenders. The Cedar Knoll facility had
residents sleeping in the dayrooms and
in packed dormitories, and all the facilities were beginning to burst at the
'Lewis served as the Special Master in the Washington State Prison case and is also a specialist in
mediation.
2At a later stage in the litigation, we also added a
claim arguing that the youth were entitled to the
least restrictive alternative as a component of their
constitutionally required treatment.

12

WINTER 1986

seams. We not only attacked overcrowding, substandard environmental
conditions, and inadequate medical and
mental health care, but also challenged
the dearth of rehabilitative programs and
special education services for the troubled youth.
On top of our lawsuit, at the request of a U.S. Congressional committee, the U.S. Government Accounting
Office (GAO) began an investigation of
the District's utter failure to prOVide
special education services required by
federal law, P.L. 94-142. The landmark
Mills case, which was brought against the
District in the I970s and which served
as the precursor of P.L. 94-142. had
never succeeded in ensuring that educational services actually reached the delinquent population in the District. No
special education was being prOVided to
a population obviously in need of it.
A grand jury investigation also
placed pressure on the troubled juvenile
facilities. Employees of the Youth Services Administration (YSA) were being
investigated for corrupt overtime practices and policies. The Washington Post
simultaneously published a string of telling articles, revealing abuse after abuse
in the YSA.

It is no secret that the District has
one of the highest detention rates
in the country for its youthful
offenders.
We believed that the distress
within the agency boded well for a good
settlement of the suit. Nonetheless, the
District's lawyers pressed on, not only
responding to our substantial discovery
but conducting a good deal of their own.
Despite several meetings in March and
April 1986 with the District's lawyers,
no meaningful settlement effort began
until june, when the YSA director was
fired by D.C. Mayor Marion Barry.
We had continually pushed for
three major pieces in the agreement:
the· appointment of a monitor; a cap on
the population; and the closure of Cedar
Knoll. Our negotiations were hard
fought; each word, each comma was discussed, it seemed, as we negotiated and
finally reached agreement on the major
sticking points. At 4 a.m. on july 7, the
day the trial was to begin, the parties fi-

nally recognized that a meeting of the
minds had been reached on all key issues. Soon after we had finally agreed to
and sought a continuation of the trial
proceedings. the negotiations were concluded. On july 24. the court approved
the agreement.
Under the settlement. a court monitor is authorized to gather facts and file
regular reports with the parties and the
court on compliance, and will assist in
the mediation of substantial disputes. In
addition, a panel of three experts agreed
upon by the parties will determine the
number of secute beds the District may
use for juvenile offenders and will also
design a comprehensive system of community alternatives for juvenile offenders. The cap on the number of secure beds is to be accomplished by no
later than December I, 1987, the same
date the Cedar Knoll facility is to be
closed. At Oak Hill and the Receiving
Home the defendants have also agreed
to provide single rooms for the youths.

A grand jury investigation also
placed pressure on the District's
troubled juvenile facilities.
The agreement further requires an .
increase in the number of cottage staff
as well as increases in mental health,
medical, treatment, and education staff.
Two consultants have been appointed to
devise comprehensive special education
and vocational plans. The monitor will
be assisted by the appOinted special education consultant in overseeing the facilities' compliance in the area of education.
The provisions of the agreement
detail comprehensive diagnostic work;
treatment planning and services; mental
health and social services; aftercare services; medical services; and educational
and vocational programming for all
youngsters. In addition, the settlement
limits the use of disciplinary measures
and restraints and further ensures
proper due process procedures. Finally,
the agreement requires compliance with
American Public Health Association and
American Correctional Association standards in the area of environmental
health and safety.
The provision in the agreement for
the design and implementation of a system of alternatives to secure confinement will be a positive step forward. If
fully implemented, the reforms promise
a favorable impact on the lives of many
troubled juveniles in the District of
Columbia. III

Mary McClymont is a staff attorney with
the Prison Project

Community Service Sentences
Pose Problems, Show Potential
Russ Immarigeon
American criminal justice and correctional systems are in a seriously tumultuous state. The National Institute of
Justice reported several years ago that
nearly all sectors of the criminal justice
and corrections community, including
prosecutors, probation and parole officials, the courts and corrections administrators, agreed that prison and jail
crowding was the most serious problem
facing them.' As a result, correctional
policymakers and planners at all levels of
government have found themselves
scrambling for inexpensive yet effective
remedies.
In this context, community service
sentences are routinely offered as feasible alternatives to incarceration. One recent report, for example, suggested that
"properly administered, community service programs offer the benefits of re-

.. , [Clommunity service is rarely
used as an alternative to
incarceration ...
ducing correctional costs and jail overcrowding while providing useful services
to communities and a more constructive
penalty for non-violent offenders."2 Still
another recent report asserted with
confidence more than documentation,
that community service was a useful
measure to "assist in reducing overcrowding of jails."3

Past Practice
A brief review of American practices, however, suggests that community
service is rarely used as an alternative to
inc~rceration,...and is therefore unlikely,
by Itself, to reduce or control correctional crowding.
In 1977, Beha, Carlson and Rosenblum observed that "the record of community service programs to date in the
United States indicates that they have
been used primarily for cases that might
otherwise be handled by fine or proba-

'Stephen Gettinger, "Assessing Criminal Justice'
Needs," Washington, DC: National Institute of Justice (Research in Brief), June 1984.
'American Correctional Association and National
Highway Traffic Safety Administration, The Drunk
Driver and Jail: Alternatives to Jail, Washington, DC:
U.S. Department of Transportation, 1986, p.viii.

This is the second in our series on
alternatives to prison confinement.
(See "Surveys Reveal Broad Support for Alternative Sentencing,"
9 JOURNAL at I.)

tion, rather than for cases in which a jail
sentence is the traditional alternative. In
some situations, this is an explicit facet
of the program; elsewhere, it is simply a
characteristic of the caseload. "4
In 1980, Hudson, Galaway and Novack evaluated over 20 community service and restitution programs and found
that they consistently failed to divert offenders from incarceration. s A year later,
Harland's national review of community
service and restitution practices also
found that these programs are "almost
exclusively designed either explicitly not
to divert offenders from custodial dispositions, or to deal only with offenders
who, by virtue of their offense, usually
of a minor property type, are extremely
unlikely candidates for imprisonment
from the onset.,,6

A Dilemma
Given this bleak picture, community
service advocates face a crucial dilemma.
British community service evaluator Anthony Vass has raised "the serious question whether it is desirable to expand or
label methods of control as 'communitybased' or 'alternatives' when in fact their
capacity or intention to divert is of a
very dubious nature. If they do not divert but merely expand the field of activity by offering 'new ways of dealing
with criminals', they can only succeed in
'National Highway Traffic and Safety Administration, Community Service Restitution Programs for Alcohol Related Traffic Offenders: The 5 A's of Community Service, Washington, DC: U.S. Department
of Transportation, 1986, p.1.
~ames Beha, Kenneth Carlson and Robert Rosenblum, Sentenced to Community Service, Washington,
DC: National Institute of Law Enforcement and
Criminal Justice, 1977, p.2S.
'Joe Hudson, Burt Galaway and Steve Novack, National Assessment of Adult Restitution Programs: Final
Report, Duluth, MN: University of Minnesota
School of Social Development, 1980.
"Alan Harland, "Court-Ordered Community Service in Criminal Law: The Continuing Tyranny of
Benevolence?" Buffalo Law Review, 1981, pASO.

impregnating the criminal justice system-and its chaotic tariff system-with
even more confusion and strain. If they
only expand the selection or choice of
sanctions without demonstrating a real
and direct challenge to penal establishments, at best tltese sanctions can only
succeed in becoming satellites of custodial institutions and, at worst, the leitmotif for their continued existence."7

Some Hope
Two recent studies add some
needed light to the generally gloomy
history of community service as an effective alternative to incarceration by suggesting that community service programs
can be designed and implemented to displace offenders from local jails or state
prisons.
In the first study, Douglas Corry
McDonald, a senior researcher for the
Vera Institute of Justice, examines the
history and development of the Institute's community service programs in
the boroughs of the Bronx, Brooklyn,
and Manhattan.s In the second, Stevens
H. Clarke, a criminal justice researcher
with the Institute of Government at the
University of North Carolina at Chapel
Hill, evaluates the effectiveness of Repay,
Inc., a community service and restitution
program located in Hickory, North
Carolina. 9
Together, these studies offer a useful contrast in the administrative uses of
research by a rural and an urban program designed to focus on jail- or
prison-bound offenders, instead of simply
serving as an add-on to other non-incarcerative sanctions. They offer no evidence, however, that they can profoundly relieve jail or prison crowding.
Community Service
as a Jail Alternative
In late 1978, the Vera Institute of
Justice started the Bronx Community
-<ontinued on next page
Anthony A. Vass, Sentenced to Labor: Close Encounters with a Prison Substitute, St. Ives, UK: Venus
Academic, 1984, p.I77.
8Douglas Corry McDonald, Punishment Without
Walls: Community Service Sentences in New York
City, New Brunswick, NJ: Rutgers University Press,
1986, $30.00.
'Stevens H. Clarke, "Effectiveness of the Felony
Alternative Sentencing Program in Hickory, North
Carolina," Chapel Hill, NC: University of North
Carolina Institute of Government, February 1986.'
7

WINTER 1986 13

..

North Carolina, like many other states,
uses community se.rvice for offenders who are
neither jail- nor prison-bound.
Service Sentencing Project in the Bronx
County Criminal Court. By 1983, the
programs had expanded to two other
boroughs (a fourth has since been
added), bringing its caseload to over
1,000.
A central function of Vera's program is to offer the courts a new sentencing option--70 hours of supervised,
non-paid community work in place of
short-term jail sentences. Potential community service clients are screened by
the program's court representative who
reviews court records, interviews offender candidates and consults with
prosecutors or defense attorneys, depending on the program's borough of
operation.
In the beginning, the project successfully showed that "the courts will
sentence even chronic thieves with very
long criminal records to labor in densely
populated urban neighborhoods." The
program's enforcement and surveillance
procedures were extremely helpful in
this regard.
Other research, however, suggested a rather low rate of jail displacements. As a result of these findings, a
new city-wide project director was appointed. Immediately, she began to establish stricter selection criteria. As the
project grew, caseload characteristics increasingly reflected those who were
typically jailed in New York City. A crucial aspect of these developments was
that community service advocates improved court acceptance of their proposals by understanding local court culture and by becoming institutionalized as
part of the process by which these sentences were routinely imposed.
McDonald's study reaches three
broad conclusions: I) community service
is not a panacea, Le., something that is
good for all purposes, in all situations; 2)
community service is a worthwhile and
proportional punishment for certain offenses; and 3) courts will use community
service for offenders who would have
ordinarily been imprisoned; thus, local
sentencing patterns can be altered
through program intervention.

Community Service
as a Prison Alternative
North Carolina, like many other
states, uses community service for offenders who are neither jail- nor prisonbound. North Carolina has used such
programs since the early I970s but state
14 WINTER 1986

statistics show that community service
program clients are mostly first offenders, property offenders, and, since
1983, driving-while-intoxicated (OWl)
offenders. During 1984 and 1985, 90.5%
of all non-OWl community service case
referrals were the result of misdemeanor offenses; 88.93% of these cases
came from the district courts; 57.24%
of case referrals came from suspended
sentences and 29.4% resulted from deferred prosecution; and slightly more
than 40% of these case referrals were
unsupervised.
Repay, Inc. offers community service and restitution sanctions to offenders facing state prison terms. Working with the defense attorney, Repay
staff interviews offenders, investigates
relevant charge-related evidence and circumstances, and examines past criminal
records, work and educational histories
and psychological backgrounds. "Alternative punishment plans" are then developed to match offenders with particular
community work placements. Both offenders and defense attorneys can raise
objections or drop out of the process at
any point. Once "plans" are developed,
offenders are asked to sign a "contract"
with program staff to show that they
understand what is asked and required
of them. Plans are then presented to the
court, and, if accepted, Repay staff then
monitors each offender's process and reports back to the court.
A crucial element of the Repay
program is an assessment of which offenders are prison-bound. In selecting
their clients, program staff use a "prison
risk scoresheet" developed by University
of North Carolina researchers W.
LeAnn Wallace and Stevens H. C1ark. lo
The scoresheet bases its "reasonably accurate predictions" of which offenders
are prison-bound on defendant and offense characteristics and other data available in local records systems. The scoresheet is designed to accompany
"common sense" or "clinical" assessments of the information involved in individual cases. The scoresheet itself was
derived from an evaluation of over 1,000
felony cases which reached disposition in
the 1981-1982 period.
lOW. LeAnn Wallace and Stevens H. Clarke, "The
Institute of Government's Prison Risk Scoresheet:
A User's Manual." Chapel Hill, NC: University of
North Carolina Institute of Government, April

1984.

The Institute of Government's evaluation of Repay, Inc. compared a randomly assigned sample of 1984-1985
program-eligible offenders divided into a
control (non-service) group and a service group. Both groups scored similarly
on the prison risk scale. The results
were significant: only 30.6% of the service group received prison terms, while
77.1 % of the ,non-service group were
imprisoned. Moreover, the length of
prison terms was slightly less for the
service group (21 months) than for the
non-service group (24 months). The
study also sugge51:S that informal presentations of "punishment plans" has
greater impact than formal
presentations.

Conclusion
In the I970s, community service
programs, regardless of whether they
were part of the public or private sector, were frequently separate from regular probation services. In the I980s,
community service is being used for a
wide range of offenders and offenses.
Unfortunately, little gUidance exists, particularly if one compares the practices of
different jurisdictions, where specific offenses or offender-types call for specific
community service requirements (number of hours, completion period, type of,
supervision). And, community service is
increasingly becoming a routine part of
sentencing plans proposed by state
agents (prosecutors, probation officers),
defense attorneys, and community advocates, with little consensus about the
purpose of its use or for which offenders its use is most appropriate.
Clearly, if a central function of
community service is to serve as an alternative to penal confinement, II serious
attention should be addressed to its purposes and use..If community service is
expected to fit most circumstances most
of the time, it will lose part of its usefulness. Jurisdictions should carefully examine whether community service is better
offered as a punitive or rehabilitative
measure. Jurisdictions should then accurately assess how their existing community service programs are being implemented. If they inaccurately believe that
they are offering penal alternatives, they
are in effect wasting a scarce sentencing
resource; moreover, they are disabling
serious discussion about how imprisonment can be effectively used less, and
how jail and prison crowding can really
be reduced.
"Reflecting on community service's early history in
the United States, McDonald observes: "The most
powerful impulse animating the creation of community service programs across the country came
from a desire for a new sanction to be used in
place of locking up offenders." McDonald, p.12.

In the long term, if community service blurs in comparison with other sentencing choices, then perhaps the best
option is to follow Sweden's instructive
lead. In 1984, the final report of the National Prison and Probation Administration's Committee on Probation recommended that community service should
not become part of the Swedish system
of sanctions. The Swedish report dutifully detailed a number of advantages offered by community service options, but
decided, nonetheless, that difficulties existed in defining who should receive how
much community service and in assessing
whether the sanction was truly used as a
substitute for imprisonment. Moreover,
the report observed that the sanction
might disrupt the purpose and functioning of other sanctions, such as criminal
fines, which are already used widely.

jurisdictions should carefully examine whether
community service is better offered as a
punitive or rehabilitative measure.

To date, the American practice of
community service has been unguided by
any sense of national policy development. While the imposition and implementation of community service is primarily a state and local matter, few
effective voices have emerged to provide a sensible direction for developing
community service across the country.
The Vera Institute of Justice's experience in New York and Repay, Inc.'s experience in North Carolina offer hope
that community service can be used as a

substitute for confinement. Unless their
experiences can be replicated elsewhere,
however, community service will only
increase the punitiveness of state intervention into offenders' lives without any
concomitant savings or advantages for
either correctiofls policy, offenders and
victims, or society at large. III

Russ Immarigeon is the associate editor o(
Criminal Justice Abstracts and a research
associate (or the UUSCs National Moratorium on Prison Construction.

ated mothers, health care, and
general articles and books. $5
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Sourcebook (1980). Traces
the history of the prisoners'
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the state of the law on various
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A Primer For Jail Litigators is a detailed manual with
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legal analysis, the use of expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case citations and correctional standards. Ist edition, February
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Prison Issues. A bibliography
of all the information on this
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Includes information on abortion, behavior modification
programs, lists of other bibliographies, Bureau of Prison
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The Jail Litigation Status
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state courts. The Report covers unpublished opinions, consent decrees and cases in
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WINTER 1986

15

The following are major developments
in the Prison Project's litigation program
since june 30, 1986. Further details of
any of the listed cases may be obtained
by writing the Project.
Bobby M. v. Graham-This case challenges conditions and practices at three
Florida training schools. Full discovery is
underway; the court has set trial for
May 4, 1987.
Bush v. Viterna-This case involves all
local jails in the state of Texas. In August
we received a disappointing decision affirming the district court's dismissal of
the case.
Cody v. Hillard-This case challenges
overcrowding and related conditions at
the South Dakota Penitentiary. We received a favorable opinion which, among
other things, prohibited double-ceiling,
and on September 2, the Eighth Circuit
Court of Appeals affirmed the decision.
In early November, the Court of Appeals granted the defendants' petition
for rehearing en banc and a briefing
schedule has been set.
Duran v. Anaya-This case challenges
conditions in the entire state prison system of New Mexico. In early November, a settlement was reached on a number of pending matters, including our
motion to hold the defendants in contempt for violating the consent decree.
This new settlement will involve sub-

National Prison Project
American Civil Liberties Union Foundation
1616 P Street, NW, Suite 340
Washington, B.C. 20036
(202) 331-0500

16 WINTER 1986

stantial restoration of good time to our
clients and we will proceed shortly on
other open matters.
Garza v. Heckler-This national class
action challenges the 1983 amendments
to the Social Security Act which deny
retirement benefits to incarcerated felons. In late july, we obtained an unfavorable ruling from a federal magistrate
which recommended granting the government's motion for summary judgment. We filed objections with the
court seeking reversal of the magistrate's opinion.
Inmates of Occoquan v. Barry-This
recently filed lawsuit challenges overcrowding and related conditions at three
D.C. prisons. A preliminary injunction
imposing population caps was obtained
after a hearing in August but was stayed
pending an expedited trial on the merits.
The trial was held during the last week
of October and first week of
November.
Nelson v. Leeke-This case involves
the entire South Carolina prison system.
In july, the court found the defendants in
violation of certain portions of the consent decree involving overcrowding and
ordered certain prisoners to be released
on parole. The state appealed and after
denying a stay of the district court order, the Fourth Circuit Court of Appeals affirmed the lower court orders in
November.

u.s. v. Michigan/Knop v. JohnsonThis action challenges conditions and
practices at fbur major Michigan prisons.
After four days of trial in june, during
which the court imposed sanctions on
the defendants for filing frivolous motions, the trial (ijOmmenced again in August and continued for a month. Further
proceedings were held in October after
which the plaintiffs rested. I11III

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