Problems with Women's
In recent years, the national debate
on jail and prison crowding, the dominant correctional crisis of the 1980s, has
forced correctional administrators and
policymakers t o examine their penal
populations t o assess which offenders
should really be imprisoned. Increasingly
scarce jail and prison space is compelling
county and state governments t o decide,
as a matter of explicit policy, who
should be imprisoned. State and federal
courts across the country are requiring
defendants in overcrowding cases t o

women's prisons, however, is that most
imprisoned women are not public safety
risks, and very little policy-oriented discussion centers on applying a least restrictive alternative standard for women
offenders. Curiously, two basic questions-why are women imprisoned in
the first place and aren't there better
ways than incarceration t o respond t o
women offenders-are rarely raised. In
addition, correctional standards such as
the ACA's frequently receive inadequate
attention from policymakers and, too
often, reform advocates.

mitted under a little-known statute al-

help for her disease.
natives available for adult and juvenile fe-

cost of her correctional program."

almost none of the treatment the law

Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N.W.

Speciol Commission on Correction AlCorrection Alternatives, July 1986,

3American Correctional Association, Public Policy
for Corrections: A Hondbook for Decision-Mokers,
College Park, MD: ACA, 1986, p.29.

vices are available upon release. But
mostly, it's just ~ a i t i n g . " ~
Women have been imprisoned in
his manner at MCI-Framingham for 13
ears. Last year, 30 alcoholic women experienced similar treatment in Massachusetts. "I kept saying," said Kathleen
Neal, "Why am I in prison? I am an alcoholic, but I don't have a record. I haven't
broken any laws. And (prison officials)
kept sayin 'You are here for 30 days;
, ,,g,
that's it.
After Kathleen Neal's story was reported in The Boston Globe, state officials
halted the practice of imprisoning alcoholic, civilly-committed women. However, Kathleen Neal's story is important
because it shows that women like her
were imprisoned in the state for 13
years until someone-in this case, a district court clerk-asked why. Similarly,
other non-dangerous, criminally-convicted women are routinely imprisoned
in increasing numbers across the United
States, and very few people are asking
why.

2

Now's the Time
On May 1, 1973, the National
Council on Crime and Delinquency
(NCCD) issued a ~ o l i c vstatement urekgthat 'non-violeit offenders should i o t
be imprisoned. Instead, NCCD suggested that the expanded use of diver'sion, suspended sentence, deferred prosecution, probation, fine, restitution and
boarding home options constituted a less
destructive and less costly correctional
policy than excessive reliance on
imprisonment.
A year earlier, NCCD and the National Advisory Commission on Criminal
Justice Standards and Goals argued that
new detention or penal institutions
should not be constructed until a full,
community-based system of alternatives
t o incarceration had been achieved.
NCCD, in particular, supported a finding
of the First Annual Chief Justice Earl
Warren Conference on Advocacy, held
in 1972, that releasing "the majority of
the prison population, coupled with the
provision of community programs and
services, would not increase the danger
t o the public, and ultimately would enhance public ~afety."~
In ensuing years, a "moratorium on
prison construction" position was

0

'Christine Chinlund and Dick Lehr, "Women Alcoholics Get Jail, N o t Treatment. Officials Say Law
Ordering Special Care Is N o t Being Carried Out,"
The Boston Globe, January 18, 1987, p. 16.
'Christine Chinlund, ''Jail for Women Alcoholics
Halted," The Boston Globe, January 25, 1987, pp. I,
C1;ational
Council on Crime and Delinquency, "The
Nondangerous Offender Should N o t Be Imprisoned," Crime and Delinquency, 2 1 (4): 3 1 5, O a o ber 1975.

adopted by more than 26 state and national organizations, including the
ACLU's National Prison Project. In recent years, the "moratorium" debate has
diminished considerably, partially because
the offense characteristics of state, and
even local, prisoners have become more
serious in nature. This has not been the
case for women offenders, however.
Women's crimes are still overwhelmingly economic in nature. With women
offenders, then, reform proposals from
the early- and mid- 1970s are still
appropriate.

juvenile incarceration, prior incarceration
as an adult, or the experience of being
released from prison before they were
24--commonly associated with a high
risk of criminal behavior. In fact, the
stud found that women were about
449kless likely than men t o commit further criminal activity after their release
from prison. Moreover, when women
released from prison committed new offenses, they were one-third as likely t o
commit a serious, person-related
offense?

Women Offenders Pose No Public
Safety Risk
"I've rarely met a woman offender," a female researcher said recently, "who I would personally feel endangered by." The ACA's policy
statement on female offender services
emphasizes that "few female offenders
pose a risk t o society."' Moreover, empirical evidence supports the view that
imprisoned women pose little threat t o
public safety.
In a Wisconsin study completed
several years ago, for instance, 169
women were observed for two years
following their release from the state's
women's prison at Taycheedah. The
study showed that few women possessed those characteristics---a history of

Women Prisoners Are Often Abuse
Victims
Increasingly, research suggests that
large numbers of female prisoners have a
history of being physically andlor sexually abused. A public hearing held in
September 1985 at Bedford Hills, the
women's maximum-security prison in
New York, highlighted the prevalance of
domestic and sexual violence in the histories of women prisoners. A 1982
study found that 95% of the women
committed t o the New York State Department of Correctional Services who
reported a history of physical abuse had
committed violent crimes, usually against
the person who abused them.
"Our life together consisted of a
lot of violence and hospital emergency
rooms," one woman told the Bedford

'American Correctional Association, Public Policy
for Corrections: A Handbook for Decision-Maken,
College Park, MD: ACA, 1986, p.29.

'Dennis Wagner, "Women in Prison: How Much
Community Risk?", Madison, WI: Wisconsin Department of Health and Social Services, 1986.

SPRING 1987 3

Hills hearing. "Once he grabbed me in
an elbow choke and with his forearm
applied pressure t o my throat until I
turned purple. I was scared that he
would hurt the child I was carrying, so I
tried t o protect myself. I bit him on his
hand until he took his arm from around
my neck. This part of my nightmare
ended when I was a r r e ~ e d . " ~
The Committee on Domestic Violence and lncarcerated Women, a New
York-based coalition of community and
criminal justice advocates, recently concluded that "the nature of their crimes
and the existence of a very low recidivism rate for those who have committed
manslaughter and murder provide substantial evidence that these women and
others like them are not a danger t o society. The wisdom of imprisoning them
at all is certainly questionable. The extremely long sentences of the women
who testified (an average maximum sentence of 15 years) raise even more serious questions about the fairness of our
criminal justice system."1°
These women's testimony reveals
numerous instances of insensitivity and
mistreatment on the part of police, legal
and medical authorities with whom they
came in contact, prior t o the violence
which inexorably followed their battering experiences.
Research studies suggest, too, that
girls who become involved in the criminal justice system also have a history of
physical or sexual abuse. University of
Hawaii researcher Meda Chesney-Lind, a
national authority on girl delinquents and
status offenders, says that a number of
studies suggest a consistent pattern of
abusive violence against young girls who
enter the criminal justice system. A
1974 study found that 37% of "ungovernable" girls were "neglected." A 1977
Washington state study of detained females found that more than 40% had a
history of physical andlor sexual abuse
while 17% were incest victims. A 1982
'Linda M. Scarola (reporter), Hearing on Domestic
Violence Held at Bedford Hills Correctional Facility,
Bedford Hills, New York, September 26, 1985 (Albany, NY, NYS Governor's Commission on Domestic Violence. 1985); Jody Grossman, "Domestic
Violence and lncarcerated Women: Survey Results," Albany, NY: NYS Division of Correctional
Services, October 1985; and Louise Bauchard with
Mary Kimbrough, Voices Set Free: Battered Women
Speok from Prison (St. Louis, MO: Women's SelfHelp Center, 1986).
"Battered Women and Criminal Justice: The Unjust
Treatment of Battered Women in a System Controlled By Men (Final Draft), A Report of the Committee on Domestic Violence and lncarcerated
Women, February 1987, pp.3-4.

4 SPRING 1987

Wisconsin study found that 70% of 192
females in the state's juvenile justice system had been injured through physical
abuse.' '
Evidence clearly indicates that
women are less likely t o be charged
with rape, armed robbery or aggravated
assault. Additionally, the manslaughter
and murder offenses committed by
women tend t o be against family members or their abusers, and not members
of the general public.

Why Are Women Imprisoned?
The Howard League for Penal Reform, a London-based prison reform
lobby, released a report last year arguing
that most women are inappropriately
imprisoned, and that no adequate answer
could be found regarding the objectives
of women's imprisonment. "What is
needed," the report concluded, "is nothing less than action t o remove from
prison the large numbers of women
who, i t is agreed, should not be
there."12
Women's imprisonment has become routinized over the years. States
keep building new and larger women's
prisons, and, like new prisons for men,
"The Baroness Seear and Elaine Player, Women in
the Penal System, London, UK: The Howard League
for Penal Reform, January 1986, p. 12.

they are soon filled and often overcrowded. Despite the fact that nearly all
imprisoned women are non-dangerous,
property offenders, drug abusers andlor
victims of domestic violence, institution
arrangements are regularly chosen over
community-based options as a matter of
policy and fiscal investment. In the past
decade, for instance, two national surveys of institution-based programs for
female offenders have been conducted,
but no one has conducted a comprehensive national survey of community-based
programming for women.I3
Discrepancies in the imprisonment
of men and women in the United States
are rooted in the historical development
of women's prisons. Prison historian Nicole Hahn Rafter observes that the
women's prison system experienced its
first rapid expansion in the Progressive
Era, a period when correctional reformers first began seeking alternatives t o
"Lila Austin's National Directory--Programs for Incarcerated Women lists private organizations working with women offenders, and mentions a number
of programs which are working with women offenders in the community. The directory is published in FCN Working Papers # 12, available from
Jim Mustin, Family and Corrections Network, P.O.
Box 2103. Waynesboro. VA 22980. The directory
can also be obtained from Lila Austin, Community
Services for Women, 20 West Street, 4th Floor,
Boston, MA 02 1 1 1.

I
1

,

i

imprisonment in men's prisons. Rafter
states that a "huge investment of reformers' energies and of state funds in
, reation of penal institutions for fecmales-at a time when their already low
rates for serious crimes apparently
underwent little increase-suggests the
very opposite of a search for alternatives
t o instituti~nalization."'~

.

I

b

Challenging Women's
Imprisonment
An important first step in reducing
the number of women inappropriately
imprisoned in the United States is t o
raise objection t o building additional
prison cells, when more than adequate
supply already exists for those few
women who require confinement for
their or the public's safety. Fortunately,
advocates, agencies and researchers have
done this in several instances:
In the late 1970s, the Minnesota
Department of Corrections, the state
legislature and various women's and
community groups raised concerns about
the quality of the state's women's prisons. In 1979, the state legislature asked
the Department of Corrections t o determine the feasibility of renovating the
women's prison at Shakopee. The Department of Corrections recommended
that the facility was beyond renovation,
but rejected various available alternatives
t o building a new women's prison. Instead, they recommended the construction of a new 108-bed institution. In
1983, $15 million in bonding was approved by the state legislature for this
project.
In 1984, the Minnesota Citizens
Committee on Crime and Justice issued
a feisty report arguing that a growing
imbalance was developing between expenditures made for imprisonment and
those made for non-incarcerative, community-based programs and penalties.
Moreover, they argued that no evidence
existed that this imbalance was resulting
in additional public safety. The Minnesota
Citizens Committee on Crime and Justice then recommended that the state
should expand community programming
for women, and use existing facilities for
those who still require imprisonment."
In 1985, the New York State Department of Correctional Services
(DOCS) announced a plan t o increase
"Nicole Hahn Rafter, "Gender, Prisons, and Prison
History," Social Science History, 9(3), Summer
1985, p.234.
IsMinnesotaCitizens Council on Crime and justice,
"Rethinking the Building of a New 108 Bed State
Prison for Women . . . And an Idea for Metropolitan Counties," Minnesota, MN: Minnesota Citizens
Council for Crime and Justice, January 1984. In
spite of this and other recommendations, a new facility opened up in late 1986 with a capacity of
1 36. It currently houses 123 women.

d,

the capacity of the state's maximumsecurity women's prison at Bedford Hills
by 36% (200 beds), at a cost of $4 million. In March 1986, The Campaign for
Common Sense in Criminal Justice, a coalition of criminal justice interest groups,
issued a detailed report which argued
that:
Many women now in prison do not
belong there. If we build more beds
now we will not have the proper incentive t o change the financially and humanly disastrous course on which we
have been embarked for too long. If the
beds are there they will be filled. On
the other hand, if we choose not t o
build, we will force ourselves t o change
our policies, as we must.I6
Finally, a report on women prisoners in the Nassau County Jail in New
York concludes that "our overriding
recommendation concerning women offenders is that they would be diverted
from the criminal justice system whenever possible. Only a small portion of
the women in jail have been convicted
of violent offenses. The majority of
women do not pose a threat t o the
safety of the community and alternative
forms of punishment such as fines, community service, restitution and intensive
probation supervision are feasible for
them. The benefits of these alternatives
t o women, their children, and the community should not be overlooked.""

A Constant Concern
Women's imprisonment is a waste
of fiscal and human resources. Empirical
evidence suggests that women pose little
or no public safety risk, whether they
are diverted from imprisonment or released from confinement after serving a
penal sentence. Moreover, many people
across the country have the commitment, imagination and program models
necessary for reducing the use of imprisonment for women offenders. Nevertheless, women's imprisonment will continue, unnecessarily, unless money is
made available for relevant community
programming, and policymakers are willing t o make displacing women from imprisonment a constant concern.
Reducing the number of female offenders imprisoned in the United States
is an especially suitable place t o begin
I6DavidLeven, "Needless and Costly Incarceration:
The Misguided Plan to Add 200 New Beds at Bedford Hills Correctional Facility," New York, NY:
The Campaign for Common Sense in Criminal Justice, March 1986. Unfortunately the fint 100 beds
of the 200 planned was opened in the fall of 1986,
and the Governor's most recent budget recommended funding for an additional 100.
"Amy Jalbert, Holding Patterns A Report on
Women--- The Forgotten Offenden in the Nassau
Countyjail, Mineola, NY: Nassau Coalition for
Safety and justice, Inc., January 1987, p.43.

breaking what University of Delaware
researchersJohn Bryne and Donald Yanich have called America's "ideology of
incarceration," a "cultural understanding
of crime as a basic threat t o the survival
of society sustained by an institutionalized and bureaucratic commitment t o
prisons as the only viable means t o protect society.
"So long as total institutions are
the core of corrections and communitybased alternatives are the fringe," Bryne
and Yanich argue, "[community-based alternatives] will be required t o adapt
their goals t o the organizational needs of
prisons." In this context, they add,
"community-based programs will not be
trusted by the larger system until and
unless they can demonstrate that they
do not challen e the principle of
incarceration."

?

Women's imprisonment is a waste
of fiscal and -human resources.
Empirical evidence suggests that
women pose little or no public
safety risk, whether they are
diverted from imprisonment or
released from confinement after
serving a penal sentence.
Women's imprisonment may be the
most appropriate place t o challenge the
principle of incarceration. Women's imprisonment adds credence t o confinement-oriented sentencing policies and
contradicts an emerging correctional
ideology that scarce penal resources
should only be used for society's more
dangerous offenders. Women's imprisonment will be reduced only when
researchers. citizen advocates, direct
service providers, planners and policymakers raise the constant question*
why are so many women imprisoned,
and what can be done instead of
incarceration? H
The second part of this article will describe
specific options various states are using to
reduce the number of imprisoned women.
Russ lmmarigeon is the Associate Editor of
Criminal justice Abstracts and a jieelance writer specializing on criminal justice
issues.
''John Byrne and Donald Yanich, "The Ideology of
Incarceration and the Cooptation of Correctional
Reform," in Criminal Corrections: Ideals and Realities, edited by Jameson W. Doig, Lexington, MA:
D.C. Heath and Co., 1983, p.22.

SPRING 1987 5

1

1
1
I
I

1 5 Years of Prison Litigation:
What Has It Accomplished?
Alvin j. Bronstein
Has the prison litigation of the past
dozen years really made a positive difference in the way prisoners live? Frequently we hear that it has not. In fact,
some say that staff morale has deteriorated, inmate violence intensified, and
that litigation has increased our capacity
t o incarcerate.' I attempt here t o set
the record straight.
In assessing the effect of prison litigation, one must keep in mind that it
has been accompanied by the most massive prison population explosion ever
experienced in the United States2On
June 30, 1986, our sentenced prisoner
population was 528,945, more than double what it was ten years ago. The current rate of increase of over 10% per
annum represents a prison space demand
of about 1,000 new beds a week, far in
excess of new beds being supplied. Thus,
in looking at the impact of litigation on
conditions of confinement, we might ask:
In light of this enormous population increase, what might prison conditions be
today without the litigation of the last
decade? The answer would be something
out of Dante's Inferno.

The National Prison Project will
mark its 15th anniversary this year
on October 24th in Washington with
a day-long series of activities, which
will include a symposium followed
by dinner and a party. We will bring
you more information in the Summer issue.

In Colorado, antiquated and dungeon-like cellblocks have been closed.
Violence has been reduced substantially
and there have been vital improvements
in medical and mental health care.
In New Mexico, double-celling
and overcrowding have been eliminated.
The levels of violence are down considerably and there have been major improvements in medical, dental and mental health care.
In Virginia, the maximum security
facility at Mecklenburg was at one time
the most brutal prison in the country.
Beatings and gassings by guards, once a
weekly occurrence, no longer happen.
In every conditions case there have
been sound improvements in the areas
of basic health and safety. Many of the
Effect on Conditions of
changes are physical and, therefore, perConfinement
manent. Cells that now have hot water
Litigation has resulted in profound
and permanent changes in the conditions lines and toilets, where none existed,
will always have them. The second
under which tens of thousands of prismeans of egress from cellblocks, along
oners must live. Representative changes
with the smoke detection and evacuainclude the following:
tion systems, will continue t o prevent
In Alabama, six prisoners no
longer live in a one-man cell and no one the kind of fire tragedies we have seen
sleeps on top of urinal troughs or on the in the past. New recreation and profloor. The prisons are no longer the "vi- gram facilities are there t o stay.
It is also true, however, that in
olent jungles" described by the court,
and decent medical care, once non-exis- every case there has been backsliding t o
some extent, primarily because of poputent, is now available.
In Rhode Island, a facility that was lation increases unaccompanied by an increased commitment of resources.)
an environmental disaster, is permaPrison overcrowding, unlike the neglect
nently closed. The Old Maximum Secuwhich led t o the problems in the 1970s
rity prison which was found t o be
is often out of the control of prison offi"clearly unfit for human habitation" by
cials themselves, despite their compethe federal court has been completely
renovated and is now considered by the tence and best intentions. If legislatures
and courts keep sending them prisoners
inmates t o be the most desirable housin greater numbers without corresponding in that system. Violence, once an
ingly increasing their resources, there is
everyday occurrence, is now a thing of
little
that a prison official can do. It has
the past.
been our experience that a state or local jurisdiction will rarely respond t o
'See, for example, the Newsweek magazine cover
overcrowding problems in the absence

story on the Texas prison case (Oa. 6, 1986).

'This phenomenon is not unique t o the United
States as much of Western Europe, Canada and
Australia are having similar experiences.

6 SPRING 1987

3ee. "Sweeping New Order in Rhode Island Case
Promises Further Relief," NPP JOURNAL, Summer
1986, p.5.

of a court order or consent decree resulting from court action. Government
officials are aware of the problem and
often know the solutions, but political
judgment tells them t o do nothing unless
forced t o by the courts. Then the
courts, and not the politicians, can be accused by the public of being soft on
criminals.
Prison conditions decrees, whether
consented t o or court-imposed, are not
self-executing. Change is resisted, either
actively or passively. In each and every
case the implementation stage requires a
greater commitment of time and resources than was required t o achieve
the decree in the first instance.
One often reads or hears academic
criticism of "broad scale institutional
change by the courts" in the prison area
with commentary that it "constitutes a
sharp break with traditional court docThis is simply not
trine and a~tion."~
true. Why has there been no comparable criticism of massive federal court intervention in the areas of school desegregation, voting rights, police practices
and environmental issues? In October
1986, newspapers reported the beginning of yet another trial in Brown v.
Board of Education, more than 30 years
after the case was filed. The Mississippi
reapportionment case, Connor v. johnson,
was filed in 1965, and has been t o the
Supreme Court four times. As a result
of Connor, the federal court has drawn
state legislative boundaries on numerous
occasions; it is still an active case today.
Criticism of the length and extent of
court involvement, like that leveled at
prison litigation, is hard t o find in these
other areas.

Violence
The Texas prison case, Ruiz v. Estelle, is often used as an example of how
federal court intervention has increased
prisoner violence.' The Texas case, however, is quite unique in size and complexity. Over the years Texas prison officials created and encouraged the
"building tender" system, a system in
which powerful prisoners were given authority t o impose mayhem, torture and
murder on other prisoners as a control
mechanism. The officials abdicated their
obligation t o maintain control. Although
this system was always illegal, it was
made expressly so in 1973 when the
Texas legislature outlawed the use of
'What We Know, Think We Know And Would Like
To Know About The Impact Of Court Orders On
Prison Conditions And Jail Crowding, Feeley & Hanson, Committee on Research on Law Enforcement
and the Administration of Justice, National Academy of Sciences, October 1986.
'The Newsweek article last fall on this case is another example of a short-sighted examination of
complicated and long-range problems.

building tenders. Yet eight years later,
despite the perjured testimony of more
than 100 prison officials, a federal court
the system still in use and en,joined the practice. The authority vacuum that resulted from Texas prison officials' failure t o assume control over
their own prisons inevitably created
much of the violence. Yet today the federal court is blamed for the violence.
Prison officials who committed perjury
go unpunished. The senior prison officials
who created and perpetuated the unlawful building tender system which led t o
the violence not only go unpunished,
they are actually honored for their
"achievements" by the American Correctional Association. Prisoners, serving
time for their illegal behavior, have no
difficulty in recognizing a double
standard.

l

Effect on Use of Imprisonment and
Overcrowding
It is difficult t o measure the effect
of litigation on the use of imprisonment,
particularly during a period when there
have been greater demands for more
and harsher incarcerative sanctions. We
are using imprisonment more than ever
in this country, driven by demographics,
increasing crime rates, the creation of a
victims' rights movement, the move t o
mandatory and determinate sentencing,
and the "law and order" rhetoric of
@most public officials. There is, however,
anecdotal evidence that conditions litigation does affect the use of
imprisonment:
After the federal court enjoined
the State of Alabama from accepting
new prisoners, local judges changed their
bail and sentencing practices. The state
also changed its good time laws t o release prisoners earlier and instituted a
large work release program.
In Rhode Island, bail reform and a
large work release program were instituted after the federal court established
population limits on each facility.
In Hawaii, community diversion
programs and probation were greatly
expanded t o comply with court-ordered
population reductions.
A number of states, most recently South Carolina and Tennessee,
have enacted prison overcrowding
emergency release legislation.
Recent data from the U.S. Department of Justice's Bureau of justice Statistics reveals that there is strong statistical
support for the proposition that court
intervention has had a positive impact on
the use of imprisonment. Although nationally we experienced a record
growth in prison population in the first
six months of 1986, the percentage
change in prison population was notably
less in those states with population

Effect on Policy
Prison conditions litigation has had
an enormous impact on many policymakers during the past ten years and most
of it has been positive.
Corrections officials, those who
manage jails and prisons, have been
forced t o examine their own practices
and policies. One major result has been
a move toward professionalization.
There is more and better staff training.
The whole movement towards the creation of professional correctional minimum standards is a direct result of litigation and court-imposed standards. There
is a great deal of communication and
consultation between corrections officials and litigators, and it would be difficult t o find a major conference of corrections officials at which a prison
conditions litigator was not a speaker.
The same is true for gov&nors and
Prison Project Executive Director Alvin 1. Bronlegislators. Litigation, or the threat of it,
stein answers questions about prison litigation.
must be factored into their decisionmaking. It would be impossible t o find a
state
corrections department budget apcourt orders6 entered prior t o Decempropriations submission that does not
ber 31, 1985:
mention litigation. Without litigation,
Percentage
prison conditions would be the last
change from
priority for almost every state official.
1213 1185-6130186
Prisoners do not vote; most of the votUnited States, total
ing public does not care whether prisons
Rhode Island
are being operated in an unconstitutional
South Dakota
or even barbaric manner.
Litigation has also been responsible
Wisconsin
for the creation of new programs. As a
Alabama
result of pressure from court orders,
Kentucky
states
have been required t o create
Louisiana
work release, community service, intenMaryland
sive probation, pretrial diversion and a
Mississippi
host of other programs. Once created,
Tennessee
they become an integral part of the sysTexas
tem and, although numbers may flucVirginia
tuate, the programs go on.
West Virginia
Colorado
Hawaii
N e w Mexico

Litigation has had a direct and dramatic impact on overcrowding in the
prisons which were the subject of litigation. For example, the six institutions involved in the original Alabama litigation
had their total population reduced from
over 5,000 t o just over 3,000. A t present there are no overcrowded dormitories nor is there any multiple-ceiling, and
the same is true in almost every prison
with a population control order. Furthermore, a reduction in overcrowding
always has a positive impact on services
and conditions ranging from medical care
delivery t o idleness and violence.
6These orders include requirements t o eliminate
double- or triple-celling, imposition of population
caps, requirements t o reduce population over time
and outright release.

Staff Morale
Although prison staff morale may
have been weakened by early court decisions of fifteen years ago, those cases
were essentially due process cases. Officers were confronted with new rules
and regulations and limitations on their
authority t o administer punishment arbitrarily. They reacted naturally t o giving
up some of their power. But the prison
conditions cases of the last decade have
produced a different result. Prison
guards realize that a safer, cleaner and
less idle prison is a better place for
them t o work and, with some uniformity, have quietly praised this kind of
litigation.
Development of Case Law and
Supreme Court Decisions
Case law has developed fairly
quickly in the area of prison conditions.
-continued

on next page

SPRING 1987 7

--continued from previous page

It was only ten years ago that U.S. District Court judge Frank M. Johnsonjr.
articulated the "totality of conditions"'
approach t o prison litigation? That concept has now been adopted by most
other courts and approved by the Supreme Court? According t o this theory,
the court, when deciding whether there
has been an Eighth Amendment violation
and when settling on a remedy, can examine a variety of prison conditions and
their effect on one another. This examination may include those conditions that
by themselves have no constitutional significance (e.g., idleness).
The progression of prison conditions cases has been significant and important. Decisions today rely on the earlier decisions as precedent. There is now
a substantial body of law on prison conditions generally, as well as on separate
and discrete conditions.1° We have even
seen a number of state court decisions
in prison cases which have relied on the
body of federal law developed during
the past ten years.
Although the Supreme Court has
not departed significantly from the
lower courts on general conditions issues (as distinguished from First Amendment or visitation issues where they
have rendered terrible decisions), they
have continuously sent a disturbing message t o the lower federal courts: that
the lower federal courts should pay
enormous deference t o prison administrators and should not intervene unless
there is overwhelming evidence of gross
constitutional violations. Chief justice
Rhenquist put it succinctly a few years
ago in a case where prisoners suffered
under overcrowded conditions, stating,
"Nobody promised them a rose
garden."'
The result of the message from the
Supreme Court has been a substantial increase in the cost of litigation. The need
t o develop and present overwhelming
evidence, sufficient t o counter the security and administrative convenience
claims of prison officials, requires more
discovery, more depositions, more experts and more lawyers' time. The cost
of litigating a prison conditions case has
increased almost tenfold over the past
ten years.

'

T h e totality theory was developed and presented
to the court by the National Prison Project.
Tugh v. Locke, 406 F.Supp. 3 18 (M.D. Ala 1976).
9Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565
( 1978); Rhodes v. Chapman, 452 U.S. 337, 10 1
S.Ct. 2392 (1981).
''New issues do arise, however. For example, the
prevalence of AIDS and AIDS-related conditions in
prison has created a whole new set of issues involving mass screening, segregation of groups of
prisoners, and medical care.
"Atiyeh v. Capps, 449 U.S. 13 12 (1 98 1).

8 SPRING 1987

The degree t o which litigation creates change varies from case t o case, depending on the vigor of the judge, the
availability of state resources, the competence of corrections officials and a
host of political issues. By the same token, the effect on states not under suit
is impossible t o measure. Certainly, most
corrections officials do not want t o run
an unconstitutional prison, and when
they hear about a new decision in a
neighboring state they are bound t o
take notice. But taking notice and making change are two different matters.
Our experience tells us that without the
pressure of litigation, change will not
take place, despite the best intentions.

Strategy Changes
Institutional litigation is highly complex, requiring a great deal of expertise.
Due in large part t o the increasing burden of proof imposed by Supreme Court
decisions, there have been a number of
changes in litigation strategy over the
past few years. The focus of totality suits
has narrowed somewhat. The earlier
cases dealt with every aspect of a prisoner's life and resulted in long and detailed remedial decrees which were difficult t o monitor and caused some
resentment on the part of state officials.
Today the focus is on four main issues:
overcrowding, environmental health and
safety, medical and mental health care,
and violence. Those are issues which
every state official understands, and they
are easier t o monitor, for example, than
the issue of whether a prisoner has access t o the commissary three times a
week.
Because the more narrowly focused
issues are those about which there is little argument, the new strategy has increased the tendency of state officials t o
negotiate and settle litigation at an earlier stage. This, of course, reduces the
cost of litigation for everyone and tends
t o make implementation simpler and
quicker. Going forward with change
after a consent decree has been agreed
t o by all parties differs greatly from continuing in an adversarial relationship.
The Cost of Litigation
lnstitutional litigation is expensive;
implementation even more so. The
highly complex litigation requires costly
discovery: depositions; surveys; expert
tours; expert witness fees; travel; and
document reproduction, t o name a few.
Cases which used t o involve deposition
costs of $2,500 may now run up bills of
$25,000. Experts who used t o work for
$100-200 a day now charge fees of
$400- 1,000 a day. The cost of airplane
travel has escalated in the last ten years.
Yet, these cases cannot be litigated
properly without such expenditures.

Without a continuing commitment
t o implementation there will be no
change, yet implementation costs are
often higher than the initial costs of obtaining a decree. It goes on longer and
frequently involves discovery, experts
and a trial on compliance issues. The National Prison Project was recently asked
t o take over a state prison case in which
no compliance work had been done for
six years, because the lawyers who
brought the case had no funds t o pay for
compliance. The conditions there, including overcrowding, are probably worse
today than they were when the case
was "won."

The Future
It is unfortunate, but undeniably
true, that the pressure of litigation must
continue, with implementation of existing cases and filing of new ones, if we
are t o operate constitutional prisons in
this country. The inertia and the population growth we previously described
command that conclusion.
The California prison system today
is housing men and women at 175% of
capacity (a net growth of almost 200
prisoners a week). Prisoners are sleeping
in hallways, chapels and gymnasiums.
many of them on the floor. Violence levels have vastly increased; vital services
do not exist. O f the 15 major institu-

1

I

THE TOMBS, ON REFLECTION

Prison Litigation: Many Years
Toward compliance judge Morris E. Lasker
In the fall of 1970 some 2,000 prisoners were housed at the New York
City Manhattan House of Detention
(better known by its historic sobriquet
"The Tombs"), a facility with a rated capacity of approximately 900. The Tombs
inmates rioted against overcrowding
(sometimes three t o a one-man cell),
and against a variety of other conditions
that have since become the staples of
prison litigation. Soon after the riot, the
Legal Aid Society of New York brought
suit against New York City Commissioner of Correction Paul McGrath,
Mayor John Lindsay and Governor Nelson Rockefeller t o eliminate those
conditions.
As a result of the litigation, the
Tombs was closed and went unused for
c the next nine years. Mayor Lindsay's successor, Abraham Beame, had also been
unwilling t o meet the court's order t o
$ propose a plan t o achieve constitutional
9" conditions. Fourteen years after the litigation was filed, the Tombs reopened,
entirely rebuilt and housing only 421
me&
model detention center.
The Manhattan House of Detention,
however, is only one of about a dozen
The cost of litigating a prison
New York City correctional facilities.
conditions case has increased
The system includes separate detention
almost tenfold over the past ten
centers in the Bronx, Brooklyn and
Queens (the so-called borough houses),
years.
as well as facilities on Rikers Island: the
House of Detention for Men (and vartions in California, only one is not
ious annexes), Women's House of Degrossly overcrowded and that is San
tention, Adolescent Remand Shelter, and
Quentin, already under a court order.
the Correctional Facility for Men (which
Although the state was enjoined from
houses convicted misdemeanants). As t o
double-celling at San Quentin, they are
each of these facilities a separate suit has
double- and triple-celling at all their
been brought challenging the constituother institutions where there are no
tionality of institutional conditions. All
court orders. When it was suggested
have been settled by consent decrees,
that what they were doing at these inexcept one, which is currently on trial.
stitutions was unconstitutional, state offiWhat are the lessons t o be learned
cials responded, "It is not unconstitufrom prison litigation? What has this subtional until a court tells us that it is and
stantial expenditure of funds and energy
we will fight any case brought against
accomplished?The following informal
US."
Much has been accomplished by liti- discussion of these questions deals only
with matters already of record or degation in the past decade. Some of the
cided and not with any issue presently
human warehouses and dungeons that
have been the shame of our society have pending decision.
been eliminated. Litigation is the force
which has pushed America's prisons from Changes in Conditions and
Practices
the 19th into the 20th century. Much
remains t o be done in the next five t o
Changes in institutional conditions
ten years t o continue this pressure and
and practices are, after all, the be-all and
prevent backward movement.
end-all of prison litigation. It is gratifying,
therefore, t o report that the conditions
Alvin 1. Bronstein is the Executive Director
in the New York City correctional instiof the National Prison Project
tutions have quite definitely improved

8

'

\&LO

since the dark days of 1970. That is not
t o say, however, that there is not a long
way t o go t o achieve the objectives and
requirements of the consent decrees.
With the exception of the Manhattan
House of Detention, none of the facilities has been completely rebuilt; compliance in some other cases has been more
difficult t o achieve because of the age
and architecture of the particular structure. A large percentage of the adult
male detainees, for example, are housed
on Rikers Island in the House of Detention for Men, a 1930s "Jimmy Cagneywtype, three-tiered jail. Compliance with
the requirements of the decree is still
far from complete although the consent
decree was signed in 1979.
Yet t o dwell on the need t o
achieve complete compliance would not
give an accurate picture of what has
been accomplished. The decree relating
t o the House of Detention for Men,
which is typical of those applying t o
other institutions, covers an enormous
range of subjects and i t s implementation
hasachieved-aradical improvement in
the daily lives of the inmates. Today
there are, for example, standards of
cleanliness with regard t o laundry, personal hygiene, environmental health and
food service; rules with regard t o confiscation of property, cell searches and
body cavity searches, rights t o dayroom
access, t o spending time outside of cells
or inside cells, t o contact visits by family
and friends, t o attorney visits t o inmates,
counsel representation and pal'ticipation,
t o communal religious services (even for
segregated detainees), t o due process in
matters of discipline for all detainees including those in high security categories,
for moving within the institution, for access t o newspapers, law library and recreation. Moreover, the physical condition of the institutions has been greatly
improved by limitations on population,
improvement of lighting, and control of
noise and temperature.

Pros and Cons of Using a Master or
Compliance Monitor
The history of prison litigation has
taught that post-decree compliance proceedings are the most laborious, timeconsuming and expensive part of the
process. The seeming endlessness of
these proceedings is characteristic of institutional reform cases. Prison litigation,
unhappily, is no exception. To avoid the
--continued on next page

SPRING 1987 9

Book Review

--continued from previous page

prospect of never-ending court participation, the parties and the court in New
York are working toward the objective
of ultimate court "disengagement," with
the assistance of a compliance monitor
for the interim period. Designated as
the Office of Compliance Consultants
(OCC), the office consists of a director,
experienced in correction matters but
unrelated t o the parties, and a small staff
of Corrections Department personnel
on leave. It is financed by the City. OCC
deals with compliance on an item by
item basis: making suggestions t o the
parties, mediating and conciliating between them, and reporting at regular intervals t o the court on the particulars of
compliance and the rate of progress. In
the several years that the monitoring
system has been in existence, the OCC
has succeeded in every instance in bringing about agreement between the parties as t o the terms of compliance.
Nevertheless, the obstacles of bureaucracy in so large a city as New York
with such a complicated mode of government has made progress on some
items slow. The OCC system has, however, proven itself. It has forced the attention of the defendants t o the necessity of compliance in detail; it has
brought about agreement between the
parties as t o how compliance should be
achieved; it has kept the court informed
without interfering with the direct relationship between the court and the parties when direct access is seen as
desirable.

Is Institutional Litigation More
Difficult Than Other Civil
Litigation For the Judge?
The "difficulty" of a case depends
on i t s complexity, the judge's familiarity
with the subject matter, the time which
the case consumes and the length of the
case's life. Measured by this formula
prison litigation would be graded fairly
difficult, but its chief difficulty, in comparison with other cases, is its protracted life. The New York City litigation, regarded as a unit, has now
endured for 17 years, and clearly will
not be completed for a while. On the
other hand, there are aspects of prison
litigation which are much simpler than
other types of civil suits: the subject
matter is not as difficult t o master as,
say, patent litigation; the management of
prison condition trials is not as tricky as
criminal or securities multiple party
cases; the motion practice does not
compare in volume with that of fiercely
fought commercial o r anti-trust cases.
Moreover, presiding over prison litigation has its own satisfactions, since,
when improvements occur, they are tan10 SPRING 1987

THE MYTH OF A RACIST
CRIMINAL JUSTICE SYSTEM
By William Wilbanks
BrooksICole Publishing Company,
Monterey, CA. 1987. 224 pp.

gible, and it is unusual for a judge t o be
able t o see the results of his own work.

Conclusion
Reflecting on the history of the litigation in New York and elsewhere in
this country and the results accomplished, I am convinced that such litigation has vastly improved the conditions
in jails and prisons for the benefit of not
only the inmates but society as a whole.
Moreover, I believe this view is shared
by most knowledgeable corrections officials and even municipal and state executives who have been defendants in such
cases. Nor do I doubt the capability of
the courts t o handle prison and other institutional reform cases. It is hard t o believe that if courts are capable of administering the break-up of AT&T, the
bankruptcy of the Pennsylvania Railroad,
and have been authorized by Congress
t o preside over the bankruptcy proceedings of municipalities, they are incapable
of dealing with such complexities as arise
in the administration of custodial
institutions.
Nevertheless, while courts have an
obligation t o make certain that constitutional rights are upheld, they have an
equal obligation t o plan for disengagement from the direction of institutions
as soon as compliance has been reached
and can be safely assured for the future.
The parties and courts in prison litigation have become so immersed in the
litigative process that it is worth reminding ourselves that our objective is
not t o work at the job forever but t o
finish it. H
Morris Lasker is a United States District
judge in the United States District Court
for the Southern District of New York For
many years he has presided over the New
York City jail conditions cases and has fiequently participated in conferences on corrections issues.

Charles j. Ogletree
In his recently published book, The
Myth of a Racist Criminaljustice System,
1987, villiam Wilbanks attempts t o develop an argument t o support the view
$, that the criminal justice system, contrary
g t o popular belief, is not racist. Wilbanks
even characterizes the view that the system
is racist as a myth. If a myth exists.
6
it is in Wilbanks' efforts t o present evi2 dence t o rebut the claim of the criminal
justice system as racist.
It is ironic that the publication of
wilbanks9 book coincides with the
growing tide of racism in our country in
the 1980s (witness Howard Beach in
New York and Forsyth County in Georgia) as well as the crucial point at which
the Supreme Court must take a hard
look at substantial evidence indicating
the disproportionate representation of
blacks subjected t o capital punishment in
instances where the victims are white.
(McClesky v. Kemp, No. 84-681 1).
Throughout his book, Wilbanks' attempts t o minimize the significance of
well-documented evidence of racial discrimination in the criminal justice system. For example, he makes the untenable argument that blacks who serve on
juries are likely t o be overly sympathetic
t o black defendants without conceding
that white jurors would have similar attitudes toward similarly situated white defendants. Further, Wilbanks ignores the
actual impact of such jury discrimination:
the most disturbing result of this jury
discrimination is that blacks are being
convicted by all-white juries at alarming
rates. Additionally, he attempts t o discount the significance of racial violence
against the black community by law enforcement officers. He cannot deny the
empirical support for racially motivated
deaths of blacks by police officers in
Memphis, Tennessee. However, he
claims that no such evidence exists in
New York City. Wilbanks' conclusion
that the use of deadly force by police officers in New York City against black
suspects is statistically insignificant and
cannot be justified. In fact, such a conclusion is disturbing in light of recent reports of police killing of a mentally disturbed black woman (the Bumpers case
in New York City) as well as a recent
report that six police officers fired 10
shots including six in the head and killed
a black suspect who was armed with a

a

lead pipe. The police officer who killed
Ms. Bumpers was recently acquitted by a
judge and the police department has also
publicly stated that the 10 shots fired at
($!black
suspect in New York were justi-fied. Based on Wilbanks' analysis, neither
of these cases would justify a claim of
racial discrimination. However, the frequency of police use of deadly force
when the suspects are black is strong
evidence of such discrimination. These
are two examples of Wilbanks' misuse of
empirical data and unfortunately could
lead t o the perpetuation of racial discrimination against blacks who are pending trial along with racial violence against
blacks by law enforcement officers. Wilbanks' conclusions about the absence of
racism in our criminal justice system are
neither persuasive nor accurate.
Wilbanks presents a number of
what he describes as "myths" about racism in the criminal justice system, and
endeavors t o dismantle each "myth." He
sets the tone of the book by defining
racism and discrimination in such a manner that makes his conclusions more
plausible. He then conducts an assessment of racial discrimination by police,
prosecutors, and judges, and racial discrimination in prisons.

,

Police and Racial Discrimination
Two of the chapters in the book
[ ( o r e particularly disturbing in their treatment of racial discrimination in the criminal justice system. In Chapter Five
("The Police and Racial Discrimination")
and Chapter Six ("Prosecution and Racial Discrimination"), Wilbanks' critiques
of empirical studies illustrating racially
discriminatory practices by police and
discriminatory practices by prosecutors
are thin and flawed. Specifically, Wilbanks uses Chapter Five t o list five
charges of discriminatory police practices
that are commonly made, and he then
attempts t o refute each charge. While
he concedes that "the charge of racial
discrimination is directed at the police
more often than at any other segment
of the criminal justice system," he erroneously concludes that the allegations
are generally baseless and amount t o little more than "myths." For example,
Wilbanks notes that arrest rates for
blacks for the eight index crimes are
substantially higher than that of whites,
and that police are deployed in disproportionate numbers in the black community.' Accordingly, victims of this racially
discriminatory pattern of police deployment, most of whom are black, complain
about the disproportionate harassment.
Wilbanks challenges this complaint by

,r

\
w

'The eight index crimes are murder, rape, robbery,
aggravated assault, burglary, larceny, auto theft and
anon.

means of a sweeping generalization that
the black community would be the first
t o complain if police shifted their deployment efforts and spent more time
investigating white-collar criminals. He
also claims that the status quo should be
maintained since "police forces would
have t o have large numbers of trained
accountants, lawyers, and the like t o investigate business activities." In essence,
Wilbanks cannot dispute the fact that
blacks are arrested more than whites at
a rate of nearly five t o one for the eight
index crimes. One salient factor that is
conspicuous by its absence is that arrests
are made for little more than 10% of
the crimes that are committed. Moreover, white suspects also commit significant amounts of street crime. Thus, Wilbanks ignores these critical facts and
inappropriately focuses on the disproportionate arrests rates. Given the small
number of arrests made in contrast t o
the large number of crimes committed,
the available data unequivocally demonstrates that the police exercise of discretion in deciding who should be arrested is racially discriminatory. Wilbanks
attempts, however, t o undermine the
significance of this discriminatory pattern
of arrests by making the bold assertion
that the black community would oppose
a shift in police deployment efforts that
would place more emphasis on arresting
white collar criminals. Moreover, he
maintains that any effort t o focus on
white-collar criminals would require police t o have so much expertise in other
professional areas that such an effort
would be futile. In reality, the number of
blacks arrested far outweighs the number of persons who are actually convicted. The real concern is not the number of police deployed in the black
community, but the inordinate number
of arrests that occur based upon race,
along with the inconsistency with which
blacks are handled within the criminal
justice system.
In response t o a charge of police
discrimination in the use of deadly force,
Wilbanks again finds the evidence unpersuasive. He acknowledges the well-documented fact that approximately 60% of
the people killed by the police in the
United States are black, while blacks
represent less than one-eighth (e.g.
12%) of the population in the United
States. He also acknowledges the accuracy of a study conducted in Memphis,
Tennessee which revealed racial discrimination against blacks in the use of deadly
force by police. Wilbanks attempts t o
dismiss this pattern of racial discrimination by claiming that a possible explanation for high rate of police shootings of
blacks is related t o the high rate of arrests of blacks for index crimes.
However, the explanation is unpersuasive. What the studies show is undis-

puted evidence that police arrest blacks
in disproportionate numbers and that
police use deadly force against blacks at
disproportionate rates. Moreover, the
discriminatory use of deadly force by police in Memphis, as recounted in a study
cited by Wilbanks, was unmistakably
confirmed in a recent Supreme Court
decision, Tennessee v. Garner, 47 1 U.S. I
(1985). In Tennessee v. Garner, a Memphis police officer fatally wounded an unarmed 15-year old black youth who was
5 feet, 4 inches tall and weighed 100
pounds. A t the time of the shooting, the
police officer admitted that there was
no indication that the youth was armed.
Nevertheless, the officer shot him in the
back of the head. Both the Supreme
Court's decision condemning the use of
deadly force in Tennessee v. Garner, as
well as the earlier studies documenting
the racially discriminatory pattern of the
use of deadly force by police against
blacks in Memphis, came too late t o save
the life of 15 year-old Edward Garner.
In light of such clear evidence of a pattern of racially discriminatory arrests and
the use of deadly force against blacks, it
is hard t o imagine how Wilbanks can
conclude that the evidence is "sparse, inconsistent and contradictory." On the
contrary, the evidence is overwhelming,
clear, and persuasive, and cannot be dismissed in so cavalier a manner.

Prosecution and Racial
Discrimination
Wilbanks' evaluation of racially discriminatory prosecution practices is
equally disturbing. In Chapter Six, Wilbanks notes, correctly, that most suspects who are detained pretrial are unable t o be released due t o their inability
t o raise the necessary bail money. He
also acknowledges that the ratio of black
pretrial detention is more than five
times greater than that of whites. He
also correctly notes that pretrial detention has a significant impact on subsequent events in a criminal case, including
a greater likelihood of conviction as well
as a longer sentence. In attempting t o
discount the significance of the substantial rates of blacks held in pretrial detention, he observes that "blacks are detained more often than whites because
they do not have the bail money, not
because they are black." Thus, Wilbanks
concludes that pretrial detention is a factor of economic class rather than race.
While the assessment that poverty is the
most important factor in pretrial detention is superficially appealing, it ignores
the documented statistics noted by Wilbanks in an earlier chapter that race is a
significant factor in the disproportionate
number of blacks who are arrested by
police. It is impossible t o view uncon--continued on next page

SPRING 1987

II

--continued from previous page
tradicted evidence of disproportionate
arrests of blacks by police as well as disproportionate use of deadly force by police against blacks and then t o conclude
that the criminal justice system is not
racist.
Wilbanks does acknowledge the
empirical data that supports the claim of
racial discrimination in the application of
the death penalty, and notes the disproportionate rates at which blacks are convicted in comparison t o whites. He
claims, however, that no conclusions can
be drawn from the figures because other
"controls," if applied, might lead one t o
draw the conclusion that no racial discrimination exists.
Wilbanks also attempts t o debunk
the contention that prosecutors purposely exclude blacks from serving on
juries in cases involving black defendants.
Wilbanks asserts that "the evidence for
the racial exclusion of blacks from juries
and for the impact of this exclusion on
the dispositions of black defendants is
rather scant with respect t o data on
'real' juries." Wilbanks' conclusion is
clearly wrong, and flies in the face of
substantial litigation revealing the discriminatory use of peremptory challenges by prosecutors t o exclude all
black jurors from jury service in criminal
cases against black defendants. He completely ignores the conclusion reached
by the Supreme Court in Batson v. Kentucky, 106 S.Ct. 17 12 (1986), reaffirming
a century-old conclusion that "the State
denies a black defendant equal protection of the laws when it puts him on
trial before a jury from which members
of his race have been purposely excluded." 100 S.Ct. at 17 16. Moreover,
the Supreme Court expressly rejected
another contention made by W i l b a n b
namely, that prosecutors may be justified
in removing black jurors because they
are likely t o be more favorably disposed
toward a black defendant. The Court
observed that "the prosecutor may not
rebut the defendant's prima facie case of
discrimination by stating merely that he
challenged jurors of the defendant's race
on the assumption-or his intuitive judgment- that they would be partial t o
the defendant because of their shared
race." Id. at 1723. Thus, the Supreme
Court noted the racially discriminatory
practice of prosecutors striking black jurors, and concluded that it violated the
Constitution. Overall, Wilbanks' attempt
t o disprove racial discrimination in the
criminal justice system is "sparse, inconsistent, and contradictory." His efforts
t o criticize studies that demonstrate racial discrimination are flawed and
unpersuasive.

Conclusion
The real benefit of the book is that

I2 SPRING 1987

it contains a considerable amount of reference material summarizing the impact
of race on the criminal justice system.
The chapters on sentencing and parole
are good illustrations of this point in
that they contain a substantial amount of
information on black imprisonment and
the parole system. Additionally, the statistical tables included in the appendix, as
well as the extensive bibliography, are
useful for future research on these issues. However, these reference materials do not, on balance, alter my view
that Wilbanks' overall effort t o discount
clear evidence of racial discrimination in
the criminal justice system is seriously
flawed.

Charles Ogletree, a partner in the D.C.
firm lessamy Fort & Ogletree, is a visiting
professor at Haward Law School. In addition, Mr. Ogletree is a former Deputy Director of the District of Columbia Public
Defender Service.

NIC to Study
Jail Suicides
In an average city of 200,000 people, someone will commit suicide every
two weeks. For the approximately
200,000 inmates in county jails and police lockups on any given day, however,
a suicide occurs at least once a day. The
rate of suicide in jails is 16 times greater
than one would expect in a city having a
population comparable in size to these
jails. This is just one of many significant
findings of the first national study of jail
suicides completed in 198 1 by the National Center on lnstitutions and Alternatives for the National Institute of Corrections (NIC), U.S. Department of
Justice.
The National Center on lnstitutions
and Alternatives (NCIA), has recently
received a grant from NIC t o act as coordinator of the Jail Suicide Prevention
Information Task Force. In cooperation
with Juvenile and Criminal Justice International, Inc. and with assistance from
the National Sheriffs' Association, the
project will: I ) gather information from
each county jail and police lockup on the
incidence of jail suicide and related issues, including the replication of NCIA's
198 1 National Study of Jail Suicides; 2)
conduct regional jail suicide prevention
seminars throughout the country; 3)
provide technical assistance t o states and
individual facilities regarding jail suicide
prevention, including the dissemination
of a periodic newsletter; and 4) develop
a model training manual on suicide detection and prevention for use in jails
and lockup.
For more information on the project, contact either of the co-directors:
Lindsay M. Hayes, National Center on

lnstitutions and Alternatives, 8 14 North
Saint Asaph St., Alexandria, VA 223 14/
(703) 684-0373, or Joseph R. Rowan, Juvenile and Criminal Justice International.
Inc., 38 1 South Owasso Blvd., Roseville,
M N 55 1 1 3/(6 1 2) 48 1 -9644.

New Standards
for Health Care
New standards for health care services in prisons and jails have been published by the National Commission on
Correctional Health Care (NCCHC).
The new standards revise those originally developed by the American Medical
Association and last published in 1979
(prisons) and 198 1 (jails).
The standards are recognized as national measurements of reasonably adequate and accessible medical care for inmates of prisons and jails, and are used
in the NCCHC's program accrediting
the health care systems of correctional
facilities.
Included in the new up-to-date revision are sections on administration,
personnel, support services, care and
treatment, medical records and medicallegal issues, plus sample forms and instructions on policies and procedures,
medication administration and control,
standing orders and treatment protocols,
receiving screening, and discharge sum- -,
marier Also, there are new standards o
a
mental health evaluation, infection control, suicide prevention, sexual assault,
staffing levels, clinic space, communicable
diseases and isolation, and care of the
mentally ill and physically or developmentally disabled inmates.
Requests for copies ($15) o r for
order information should be addressed
t o the National Commission on Correctional Health Care, Box 3500, 2000
North Racine, Chicago IL 606 14/(3 12)
528-0818). LIDB

Staff Changes at
the Prison Project
After eight years with the National
Prison Project, Chief Staff Counsel Steven Ney resigned t o become the Director of a state-wide disability rights project in Baltimore, MD. Mary McClymont
has also left the Prison Project t o join
the U.S. Catholic Conference as Legalization Director of Migration and Refugee Services.
We were fortunate t o have Claudia
Wright return after a year's absence.
Claudia was a staff lawyer from 1980 t o
1985, and will be resuming work on
cases she worked on earlier as well as
new cases. Also new on the staff is Julia
Cade, a paralegal and public information
assistant. She has nine years of similar
experience with projects in the South.

-.
0

Fourth Circuit Upholds Lower Court
Order in South Carolina
C i e t s y Bernat
On November 12, 1986, the
United States Court of Appeals for the
Fourth Circuit affirmed a district court
order in Nelson v. Leeke which required
the South Carolina Department of Corrections t o comply with the population
limits agreed t o by the parties in a 1985
consent decree.
Nelson v. Leeke was filed in federal
court as a class action suit by inmate
Gary Nelson in 198 1. Nelson charged
that overcrowding in the South Carolina
state prisons had created perilous conditions which violated inmates' Eighth
Amendment rights t o be free from cruel
and unusual punishment. The inmates
have been represented since 1983 by
the National Prison Project, the Southern Prisoners' Defense Committee, and
attorney Gaston Fairey of Columbia,
South Carolina. A settlement was
reached by the parties in January 1985,
and the court approved a consent decree the following November.
In July 1986 the Department of
Corrections argued in district court for
a modification of the decree's population
requirements, citing as cause an unusually
igh surge in the inmate population.
heir request was turned down by Federal District Court Judge C. Weston
Houcke who ordered them t o comply
with the decree, and, by September 20,
t o eliminate all beds that did not conform with the decree. (See NPP JOURNAL, Fall 1986, p.4, "Court Orders
South Carolina t o Comply With Decree.") The court provided that a status
conference could be held in the fall, if
necessary, t o give the problem of population increases further consideration.
In order t o meet the cap requirement, the de~artmentadvanced the re-

lease dates of 149 non-violent prisoners
by an average of 26 days. Furthermore,
they transferred prisoners t o newly-constructed facilities which provided enough
additional space t o allow them t o
achieve compliance with the order.
The Court of Appeals noted that,
insofar as the defendants had complied
with the order and eliminated all nonconforming beds by September 20, their
appeal was "clearly moot." Furthermore,
because the district court had provided
the option of a status conference t o allow the parties t o discuss future overcrowding problems, the Court of Appeals maintained that there was "no final
order from which t o appeal."
The appeals court also affirmed the
district court's finding that the defendants had violated the decree by building
"temporary" dormitory barracks inside
an existing medium security institution.
A provision in the Nelson consent decree prohibits any "new institution"
which is used t o shelter medium or
maximum security prisoners from employing ward-style housing. The defendants argued that the temporary facilities
did not fall under the definition of "institution" and thus were not subject t o the
decree's provision. The court rejected
this argument. However, it did affirm
the district court's order allowing the
defendants t o use these temporary facilities for at least six months. The court
feared that the transfer of the 96 prisoners in the barracks back t o the older
facilities could spark further overcrowding problems in the system. The matter
can be raised again in district court
when the six-month order expires. 888
Betsy Bernat is editorial assistant for the

No More
Quick Options for
District of Columbia
Julia Cade
The safety valve of the District of
Columbia's correctional system has
blown apart from cumulative neglect and
ill planning. For years, the D.C. system
has operated by sending overflow inmates from four facilities with court-imposed population limits t o the three facilities without court-imposed caps
(Occoquan I, II and Ill).
In July of 1986, the effects of the

practice of ignoring the increasing inmate population at the Occoquan facilities and the resultant strains on the
physical facilities t o accommodate the increases became evident in the explosive
outbreak by inmates protesting the deplorable living conditions. Fourteen
buildings were set afire, including t w o
dormitories that were destroyed. The
overtaxed system's immediate new
problem was finding living space for 300
displaced inmates.
The National Prison Project went
t o court following the July disturbance.
seeking a preliminary injunction on overcrowding and fire safety issues. The evidentiary hearing was successful, but the
court-ordered population caps were
stayed pending a trial scheduled for late
October.

Fourteen buildings were set afire,
including two dormitories that
were destroyed.
During the trial the plaintiffs' experts were often uncontroverted by experts for the defense, and testimony
from both sides was often in concurrence. In December 1986, the court
ruled overwhelmingly for the plaintiffs,
noting that even without the overcrowding problem, Occoquan's physical
facilities, various services and programs
were "at best, substandard" and that
"every facet of operation at Occoquan is
characterized by systemic deficiencies".
After years of "solving" the population crises at four of the District's
court-capped facilities by reassigning inmates t o the three Occoquan facilities,
the D.C. government has run out of
quick options. They have consistently refused t o follow the recommendations of
outside experts, citizens commissions,
and others, that the solution is t o reduce the number of non-dangerous offenders who are routinely warehoused
in D.C. prisons. A t this juncture, the situation can be viewed as either the glass
is half empty or the glass is half full: i.e.,
without its customary procedures, the
D.C. government has nowhere t o go
with the burgeoning inmate problem, or,
the current situation provides a unique
opportunity t o examine and pursue alternatives t o long-term incarceration in
the overburdened system.
Ed Koren, one of the NPP attorneys on the case, sees several options
readily available t o the District, with
others in easy reach, if the political players are serious about constructive solutions. "Since a consultant discovered
that 38% of the D.C. inmate population
would be eligible for a minimum security
setting such as a halfway house," Koren
points out, "the increased use of halfway
--continued on next page
SPRING 1987

13

from previous page
the case of Duran v. Anaya, in which a
houses and community centers is an easy broad consent decree was agreed t o by
the prisoner plaintiffs and state officials
way t o e,ase the population crunch
in the aftermath of the tragic New Mexnow." In addition, "the streamlining of
ico Penitentiary riot in February 1980.
the paperwork process within the D.C.
Judge Burciaga, after noting that the
parole board is a way t o keep the sysNew Mexico Legislature had cut the
tem flowing and t o release people in a
Department of Corrections' budget for
timely fashion when their sentences are
the fiscal year beginning July I, 1986,
up." For future consideration, Koren
adds, "the D.C. government can set up a found that these cuts would result in serious violations of the consent decree in
'good time' system that would allow
the areas of medical, mental health and
early release for good behavior-giving
inmates some incentive at the same time security staffing. He also pointed out
building in a constructive safety valve for that staff prison officials had warned the
legislature about the possible impact of
the correctional system." H
their budget cuts and he cautioned those
officials about the possibility of "an erupIulia Cade does paralegal work at the
Prison Project and is the public information tion of blood and fire" in the prisons.
Judge Burciaga went on t o say "to the
assistant
extent of its ability and power, however,
this Court will not permit that deadly
combination t o result from flagrant and
transparent violations of the constitutional rights of prisoners in New Mexico's correctional institutions." Citing Supreme Court authority, Judge Burciaga
pointed out that a defendant's constitutional obligations may not be avoided for
lack of financing and that a federal
Iulia Cade
court's equitable powers are not limited
by the fact that "needed equitable remeA federal judge in Albuquerque,
dies implicate state funds."
New Mexico issued a sweeping order on
New developments arose in the
June 27, 1986, enjoining the Governor
case toward the end of 1986 as the parof New Mexico and that state's correcties were facing a hearing on plaintiffs'
tional officials from eliminating medical,
motions for contempt and further relief,
mental health and security staff positions and defendants' cross-motion t o vacate
as a result of budget cuts imposed by
or modify the order. In November these
the New Mexico Legislature.
divergent counterpoints were narrowed
United States District Judge Juan G. when a partial settlement was reached:
Burciaga, acting on a motion for a prethe plaintiffs withdrew their motion for
liminary injunction filed by attorneys for
contempt; the defendants withdrew
New Mexico prisoners, ordered the
their motions t o vacate the court order
state defendants t o refrain from elimiand office of special master, their motion
nating any positions or laying off any em- t o double-cell most of New Mexico's
ployees for budgetary reasons if those
prisons and their motions t o modify the
positions were previously authorized. He medical care, mental health care, inmate
also ordered the defendants t o proceed
activity and staffing components of the
immediately t o fill all vacant positions
court orders. Additionally, defendants
previously authorized by the legislature
agreed t o restore good time t o those
and t o refrain from transferring funds
plaintiff class members who were penalfrom other areas of the Corrections De- ized by defendants' violation of the
partment budget which might deprive
court order with respect t o inmate disprisoners of the rights t o which they are cipline, maximum security and inmate acentitled.
tivity. The defendants also agreed t o imAccording t o Alvin J. Bronstein, Ex- plement a program of family visitation. In
ecutive Director of the National Prison
mid-December the parties also reached
Project, "This is a most significant decia partial settlement on outstanding applision coming at a time when state corcations for attorneys' fees.
rections department budgets are being
The remainder of the motions were
threatened by legislative cutbacks all
heard by the court in early December:
over the country. The Federal Court in
the plaintiffs' motion for supplemental
New Mexico has reaffirmed the principle relief due t o widespread noncompliance
that a lack of resources is not a defense
of the order and defendants' motion t o
t o a constitutional violation." Prisoners
modify substantive areas of the order
are represented by Steven Ney of the
such as classification, discipline, and maxiNational Prison Project and local lawyers mum security and an effort t o restrict
Mark Donatelli, Sarah Bennett, Robert
the monitoring scope of the special masRothstein, and Ray Twohig.
ter. The court is expected t o reach a
decision by spring, 1987. W
The current proceedings arose in
-continued

Lack of Resources
No Defense for
Constitutional
Violations

14 SPRING 1987

For the Record:
To the Editor:

I have read with great interest and

a, 27

gratification the article written in your
National Prison Project IOURNAL (See,
"Oklahoma Prisoner Earns Place in Prisoners' Rights History: The Story of Battle v. Anderson," NPP IOURNAL, Winter
1986, p. I ) about the Oklahoma prison
litigation. The article is truthful, factual
and informative. It explains how the
work of the Civil Rights Division of the
Justice Department and the attorneys
working under the umbrella of the
American Civil Liberties Union, all of
whom did a skillful and scholarly job,
produced evidence and legal authorities
that compelled the state of Oklahoma t o
spend millions of dollars t o bring the
Oklahoma correctional system out of
the 19th Century into the 20th Century.
Because of the poor economic conditions in Oklahoma and the increased
rate of criminal convictions, the prisons
are terribly overloaded. Notwithstanding
this fact, the legislature has been diligent
in maintaining medical care, reasonable,
proper housing conditions and has
passed laws t o alleviate the overcrowded conditions.
The author is t o be congratulated
for her conscientious work on this
article.
Sincerely,
Luther Bohanon
Senior United States District Judge
U.S. District Court
Oklahoma
George Kendall was chosen t o receive the 1987 Stuart Stiller Memorial
Award, given by the Stuart Stiller Memorial Foundation in Washington, D.C.
Kendall is the staff attorney for the
ACLU's Death Penalty Resource Center
for the I Ith Circuit in Atlanta, Georgia.
The Stiller Award is "given in
memory of Stuart Stiller who, in his lifetime, integrated humanity with professional excellence. For him, compassion,
humor and empathy were necessary virtues for those who seek t o make a difference through the law. It is bestowed
from time t o time t o honor those in the
legal profession who by their actions
symbolize those values."
In choosing the recipient of this
award, the Board of Directors of the
Stiller Foundation looks for "people who
do the good work for i t s own sake, and
do it well. This is a way for those people who generally do not receive recognition for their work t o be recognized
and appreciated. We chose George not
only because of his work on death penalty cases, but because he has been able

LC

-

t o get the District of Columbia Bar involved in the national problem of providing counsel for indigent defendants in
apital post-conviction cases."
The award was presented at the
"Eighth Annual Stiller Dinner held on
March 15 at the Palm Restaurant in
Washington, D.C.
The Second National Community
Service Symposium will be held in Boston, MA in November 1987. The first
Symposium, held last Fall in San Francisco, attracted judges, program administrators, probation officers, researchers,
and concerned citizens from all around
the country. The Symposium is sponsored by the National Community Service Sentencing Association. For further
information, contact Cres Van Keulen,
Director of the Community Service
Center in San Rafael, CAl(4 15) 459-2234.

The Third International Conference on
Penal Abolition will be held at the University of Montreal, in Montreal, Canada
from June 15- 19, 1987. The conference
will pursue an analysis of current penal
policy and practice with a view toraising
public consciousness of the failures and
injustices of the punitive model and t o
developing useful abolitionist strategies.
For information about registration,
contact the office des Droits des
Detenu-e-s, Suite 300, 1030 Cherrier,
Montreal, Quebec, Canada H2L IH9.
The National Commission on Correctional Health Care has issued a call
for papers for its I Ith National Conference, t o be held at the Palmer House
and Towers in Chicago, Illinois on November 5-7, 1987.
The conference, whose theme is,

"The Second Decade: Professionalism
and Specialization" will explore increased professionalism among correctional health care providers, improved
quality assurance programs, second generation standards, and the specialization
of correctional health care.
The National Commission on Correctional Health Care is a not-for-profit
organization dedicated t o improving
health care in the nation's jails, prisons
and juvenile confinement facilities.
Co-sponsoring the conference is
the American Correctional Health Services Association.
Abstracts not exceeding 200 words
should be submitted t o the National
Commission on Correctional Health
Care, 2000 North Racine, Suite 3500,
Chicago, IL 606 14. For further information, write or call Jodie Manes at (312)
528-08 18.

ated mothers, health care, and
general articles and books. $5
prepaid from NPP.

Sourcebook ( 1980). Traces
the history of the prisoners'
rights movement and surveys
the state of the law on various

The National Prison
Project JOURNAL,
$20/yr. $2lyr. t o prisoners.

I

The Prisoners' Assistance
tional survey, identifies and de-

The National Prison Project Status Report lists by
state those presently under
court order, or those which
,
have pending litigation either
553
involving the entire state
/,"
-5- prison system or major institu&
/.*; ,/ tions within the state. Lists
-r: only cases which deal with
: overcrowding and/or the total
. conditions of confinement.
(No jails except District of
Columbia). Periodically updated. $3 prepaid from NPP.

I

<,c

2

.

I,

I

employment and financial aid.
7th Edition, published April
1986. Paperback, $20 prepaid
from NPP.

I
Q n .c

on

Offender Rights Litigation:
Historical and Future Developments. A book chapter
by Alvin J. Bronstein published
in the Prisoners' Rights

Fill out and send with check payable t o

d'

The National Prison Project
16 16 P Street, N W
Washington, D.C. 20036

Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
H,. ,+~
subject contained in our files.
%g.--. Includes information on abortion, behavior modification
programs, lists of other bibli. ? ographies, Bureau of Prison
policies affecting women in
prison, juvenile girls, women in
jail, the problem of incarcerCOST

.

A Primer For Jail Litigators is a detailed manual with
practical suggestions for jail litigation. It includes chapters on
y,,... legal analysis, the use b f expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case citations and correctional standards. Ist edition, February
1984. 180 pages, paperback,
$15 prepaid from NPP.

8

QN.

QN. COST

The Jail Litigation Status
Report gives a state-by-state
listing of cases involving jail
conditions in both federal and
state courts. The Report covers unpublished opinions, consent decrees and cases in
progress as well as published
decisions. The Report is the
first nation-wide compilation
of litigation involving jails. It
will be updated regularly by
the National Jail Project. 1st
Edition, published September
1985. $1 5 prepaid from NjP.

NAME

ADDRESS
CITY. STATE, ZIP

SPRING 1987

15

The following are major developments in the Prison Project's litigation
program since September 30, 1986. Further details of any of the listed cases
may be obtained by writing the Project.
Cody v. Hillard-This suit challenges
conditions at the South Dakota State
Penitentiary and we have favorable decisions from the District Court and the
Court of Appeals. In October the Eighth
Circuit Court of Appeals granted a rehearing en banc, which was argued in
January 1987.
Inmates o f D.C. Jail v. Jackson-This
case challenges conditions, primarily overcrowding, at the D.C. Jail and we have
obtained a series of favorable decisions.
In February, a hearing was held on our
application t o find the defendants in contempt of earlier court orders. A decision
is expected shortly.
Inmates o f Occoquan v. Barry-This
lawsuit was filed in August 1986 and
challenges conditions at the Occoquan I,
II and Ill facilities at Lorton Reformatory,
the District of Columbia's prison in Virginia Trial was held October 20-29. In
December, Judge Green entered an order limiting the population and ordering
defendants t o develop plans t o address
deficiencies in fire safety, environmental
issues and medical care.

National Prison Project
American Civil Liberties Union Foundation
16 16 P Street, NW, Suite 340
Washington, D.C. 20036
(202) 33 1 -0500

New NPP Status Report Available.
See PUBLICATIONS, p. 15.
16 SPRING 1987

Nelson v. Leeke---In this case involving
the entire prison system of South Carolina, the Fourth Circuit Court of Appeals
affirmed the district court's order requiring defendants t o comply with the
population limits by reducing overcrowding and releasing certain prisoners.
It also affirmed the finding that defendants had violated the decree by building
"temporary" barracks-type housing
units.

trial in October. Defendants were
scheduled for March 1987. In U.S. v.
Michigan, compliance hearings were set
for January, February and March. II

AlDS Project

Spear v. Ariyoshi-This case challenges conditions at the major men's and
women's prisons in Hawaii and resulted
in a consent decree in June 1985. In the
light of various compliance problems, a
supplemental agreement with new timetables was negotiated and approved by
the court in February 1987.

Early this year, the National Prison
Project was awarded a one-year grant of
$40,000 by the Public Welfare Foundation t o support a public education program on AlDS in prison issues. Former
NPP staff lawyer Urvashi Vaid has been
hired on a part-time basis t o direct the
project.
During 1987 this special project
will:
I. Update and expand the initial
1985 survey conducted by the NPP
(NPP JOURNAL, Winter 1985);
2. Prepare and distribute a bibliography of AlDS in prison materials;
3. Produce and distribute educational brochures on AlDS issues for prisG
oners and correctional officers; and
4. Serve as a resource center t o
provide information and technical assistance t o persons seeking information
about AlDS issues.

U.S. v. MichiganIKnop v. JohnsonThis is a statewide Michigan prison conditions case. In Knop, we completed
presentation of our case in three days of

For further information, contact Urvashi
Vaid at the National Prison Project,
16 16 P Street N.W., Suite 340, Washington, D.C./(202) 33 1-0500.

Paimigiano v. Garrahy-This is the
statewide prison conditions case in
Rhode Island that previously resulted in
a series of favorable decisions. In December, the defendants filed a motion
asking that further population reductions
scheduled t o take place on January I,
1987 be re-examined. A hearing was
scheduled for March 30.

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