States Fail to Meet Critical Need of Indigent Defendants

-continued from front page

tied. At the july 31, 1985 hearing where
his September 5, 1985 execution date
was set, Washington's trial counsel
moved to have new counsel appointed
to represent him in connection with any
habeas corpus proceedings, and the motion was denied. This left him without an
attorney to pursue post-conviction proceedings on his behalf. By late August,
his date with the executioner was only
two weeks away and he had not yet begun either state or federal habeas corpus
proceedings.
With the clock ticking, frantic efforts were made by Marie Deans of the
Virginia Coalition on jails and Prisons,
the NAACP Legal Defense Fund, and
others to find a volunteer attorney for
Washington. Pleas for lawyers were sent
as far as New York, Washington, D.C.,
and Chicago, but all were rejected.
Washington sat awaiting his execution.
Finally, attorneys at Paul, Weiss, Rifkind,
Wharton & Garrison in New York undertook a last-minute emergency effort
to obtain a stay, and were successful.
Earl Washington's situation is unfortunately not unique. Many individuals
who have been sentenced to death are
unable to obtain a lawyer for the final
stages of their appeals, and are now in
danger of being executed without having
exhausted the appeals provided by law.
This is happening not for lack of claims
to be brought, but because the prisoners
are too poor to pay lawyers to bring
them. Of the 1,911 death-sentenced inmates, 99.5% are indigent.
Under the federal habeas corpus
statute, a death row inmate has the right
to petition the federal court to review
his or her case to determine whether
there has been a violation of the Constitution durin( arrest, trial, conviction or
sentencing. Indeed, the dire consequences of the death penalty demand
rigorous judicial scrutiny.
While many states provide lawyers
to poor people sentenced to death during the trial phase and on direct appeal
to the state supreme court, representation ends after the sentence has been
confirmed on automatic appeal to the
state supreme court. It is then up to the
indigent inmate to locate a lawyer to
prepare a petition for a writ of habeas
corpus. As a result, many are represented by volunteer lawyers who lack

Jon Elvin is the editor of the

NPPJOURNAL

2

SUMMER 1987

There has been no action,
however, in terms of funding or
actual recruitment in most "Death
Belt" states, with the exception of
Florida.
necessary expertise, or by overburdened
lawyers from public interest legal projects. Some are afforded no representation at all.
Some state government officials feel
that to execute someone who does not
have an attorney would cause a "black
eye" for their state. Largely because of
this potential embarrassment to the
state and to the legal profession, a few
state bars and legislatures have belatedly
launched studies of the problem. There
has been no action, however, in terms of
funding or actual recruitment in most
"Death Belt" states, with the exception
of Florida. [See CCR story, this issue,
p. 6] Despite slight movement to meet
the pressing need, the situation has not
improved. In fact, it has deteriorated
due to the rising numbers of people sentenced to death, mounting executions,
and the dwindling number of attorneys
willing, or able, to handle capital cases
during collateral proceedings.
This "system" of representation has
also resulted in chaos and disarray in the
courts. Often a lawyer is found only at
the last minute. In the rush to prepare
the case, important issues may be overlooked Or necessary investigation may
not take place. Courts are required to
make judgments about life and death
matters on short notice and on an emergency basis. judge john Godbold of the
Eleventh Circuit Court of Appeals has
pOinted out that these emergency proceedings are then misunderstood by the
public, while imposing tremendously difficult demands on both counsel and the
courts.
Former Supreme Court justice
Lewis Powell, in a 1983 speech to the
Eleventh Circuit judicial Conference,
complained of persons convicted "five or
six years ago" having "their cases of repetitive review move sluggishly through
our dual system." I He also expressed
'Remarks of Lewis F. Powell Jr., former Associate
Justice, Supreme Court of the United States, Elev"
enth Circuit Judicial Conference, Savannah, Georgia, May 8-10, 1983.

dissatisfaction over last-minute stays of
execution, and the burden that they inflict upon judges.
Professor Anthony G. Amsterdam
of New York University, a leading capital punishment theoretician, criticized
justice Powell for not recognizing that
the system, described by Powell as "permissive" and one which "permits the
now familiar abuse of process," serves a
beneficial purpose to be balanced against
the cost of delay. Only two weeks before justice Powell's speech, the Supreme Court heard argument in Barefoot
v. Estelle, 463 U.S. 880 (1983). The
NAACP Legal Defense Fund presented
evidence in an amicus curiae brief showing that between 1976 and 1983, federal
courts of appeals had decided a total of
41 habeas appeals, and had ruled in favor
of the death row prisoner in 30, or
73.2%, of them.
"Contemplate what this means,"
says Amsterdam. "In every one of these
cases, the inmate's claims had been rejected by a state trial court and by the
state's highest court, at least once and
often a second time in state post-conviction proceedings; the Supreme Court
had usually denied certiorari at least once
and sometimes twice; and a federal district court had then rejected the inmate's claims of federal constitutional
error infecting his conviction and/or

OF THE

L

NATIONAL PRISON PROJECT
Editor: Jan Elvin
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.
Washington, D.C. 20036
(202) 331·0500
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 al-

ternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the
stipulation that the National Prison ProjectJOURNAL 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,lnc.

..

Death Penalty Proceedings

death sentence. Yet in over 70% of the
cases, a federal court of appeals found
merit in one or more of the inmates'
claims. These figures surely suggest that
the 'repetitive review' condemned by
justice Powell is not entirely without
justification or social benefit in a society
which prefers not to kill people in violation of its fundamental laws. Yet not a
word of this does justice Powell
breathe."2
According to the American Bar Association's (ABA) Section on Individual
Rights and Responsibilities, the rate of
reversal has declined slightly since 1983,
but the death penalty is still rescinded in
more than 55% of the cases.
justice Powell also omits any mention, says Amsterdam, of the fact that
capital defense lawyers are, in almost
every case, either unpaid volunteers donating hundreds of hours to these cases,
or one of the small "corps of specialized
pro bono death penalty defense lawyers." This is another "curious" omission, he says, given the amicus curiae
brief filed in Barefoot by the ABA, which
stated that expedited appeals in capital
cases would "make incalculably more difficult the often thankless task faced by
volunteer attorneys who have agreed to
represent penniless, death-sentenced inmates in federal habeas proceedings.
Summary procedures that deprive counsel--€ven those armed with a certificate
of probable cause to appeal--of a minimally adequate period in which to brief
and argue a client's case are likely to impair the effectiveness of all but the rarest or most well-financed of
attorneys." 3
justice Thurgood Marshall also disputed the kind of criticism justice Powell
had offered ilJ, remarks Marshall delivered at New York University Law
School in 1984. Referring to attorneys
who volunteer their services to assist
persons on death row in collateral challenges to their convictions and sentences, justice Marshall said "[the attorneys] who currently are shouldering our
collective burden deserve our gratitude,
not our scorn and not simply our tolerance. They are making enormous sacri'Anthony G. Amsterdam, "The Tilt Against Death
Row Prisoners," Human Rights, Winter 1987,
Vol.l4, No.1, p.51.
'Brief of amicus curiae of the American Bar Association in Barefoot v. Estelle, U.S. No. 82·6080,
pp.6-7.

U.S. Federal District Court Judge Robert R.
Merhige Jr. ordered Virginia to devise a plan
which would provide lawyers to death row
prisoners.

fices - emotional as well as financial.
Prosecution of a single appeal on behalf
of a person on death row frequently involves months of exhausting, seemingly
futile effort. One lawyer has described
the process as a 'self-lacerating investment of time and energy.' To the attorneys willing to make such investments,
again and again, I wish to express my admiration and thanks.""

In the rush to prepare the case,
important issues may be
overlooked or necessary
investigation may not take place.
The problem of the lack of counsel
in post-conviction cases is nationwide,
and, of states with large death row populations, only Florida has made a serious
effort to address it. In Virginia, a lawsuit
was filed last year in an effort to force
the state to provide some kind of assistance to these prisoners. Virginia supplies lawyers for indigent inmates only at
trial and on appeal to the Virginia Supreme Court.
Federal district court judge Robert
R. Merhige jr. issued a recent opinion
and order in that lawsuit. 5 The order
'Remarks delivered by Justice Thurgood Marshall at
New York University School of Law, April 9,
1984.
sGiarratano v. Murray, 85-0655-R, Dec. 1986.

held that prisoners are entitled to the
appointment'of counsel upon request to
assist in habeas corpus proceedings in
state courts. judge Merhige also ordered
the state, with 33 men on death row, to
develop and inwlement a plan to prOVide
lawyers for indigent prisoners. In his
opinion, Merhige wrote, "The stakes are
simply too high for this court not to
grant, at least in part, some relief. In
view of the scarcity of competent and
willing counsel to assist indigent death
row inmates in the exercise of seeking
post-conviction relief, some relief is both
necessary and warranted."
Virginia was ordered to prOVide
death row prisoners with trained legal
assistance during capital post-conviction
proceedings. Currently, death row inmates obtain volunteer lawyers by contacting Marie Deans of the Virginia Coalition on jails and Prisons. Deans has
found it impossible to recruit from a
shrinking number of attorneys willing tq
volunteer for death row cases.
jack Boger, former assistant legal
counsel for the capital punishment project of the NAACP Legal Defense and
Education Fund, Inc., testified in Giarratano that post-conviction counsel must
do a complete investigation of the
client's background. He or she must also
obtain the services of mental health and
other experts. locate and interview former attorneys in the case, and review
the entire record and the direct appeal
process to determine whether error occurred. All previous convictions and records in those cases must be investigated
as well as the initial determination of
guilt.
"A complete knowledge of federal
constitutional criminal procedure law
and state substantive criminal law is rudimentary for post-conviction counsel.
Capital post-conviction proceedings are
permeated by 4th, 5th, 6th, 8th, and
14th Amendment jurisprudence, and
knowledge of that ever-changing law is a
fundamental necessity. Equally important
is federal habeas corpus procedural law.
which is complicated by doctrines of law
unique to those proceedings. Exhaustion
of state remedies, procedural default and
its exceptions, presumptions of correctness of state court findings, and exceptions to such a presumption, and abuse
of the writ law add significantly to the
complexity of post-conviction
proceedings."
-continued on next page
SUMMER 1987

. . . ._

.....Il'lIIIF. .

"'_
. .,_"".

3

_

UThe death penalty frequently results from nothing more

-continued from previous page

Boger himself had, at the time of
trial, represented as many as 80 inmates
in state or federal post-conviction, and
had helped write briefs in 300 other
such cases. These cases may require 30
days of round-the-clock work, he said.
Meanwhile, the attorney's work is
shaped by the calendar of events leading
up to the execution. As Justice Marshall
put it, once the execution date is set,
the race is on.
"In practice, one may be in one,
two, or even three courts at once," said
Boger, "depending on the status of the
litigation. An attorney must simultaneously develop multiple courses of
action."
A demanding task for trained lawyers, handling a death case would be
next to impossible for the death-sentenced inmate. Many are limited educationally, have psychological problems,
and may have low intelligence. Often
they have emotional difficulties exacerbated by strained relationships with their
families. Most importantly, in the face of
death they are unable to summon the
detachment needed to litigate their own
case. Even prisoners who possess
greater intelligence or emotional stability simply do not have the resources, legal or financial, to do an adequate job.
Jonathan Shapiro, a criminal defense attorney from Alexandria, Virginia,
testified that he had received a desperate call from Chan Kendrick, director of
the Virginia ACLU. Kendrick begged
Shapiro to take the case of Wilbert Evans. Evans had an execution date set for
four weeks hence, and Kendrick convinced Shapiro that he could enter the
case "solely for the purpose of getting a
stay of execution." Shapiro agreed to
those terms, but found that once he was
on the case, he could not simply abandon Evans. The emotional drain and the
financial burden of the case came as a
shock to him.
"I stayed and stayed and finally it
was my case," he testified.
"Would you take another death
case?", he was asked.
"Never," replied Shapiro.
The court reached the conclusion in
Giarratano that the guarantees of the
Constitution can only be met by the
continuous services of attorneys to investigate, research, and present claimed
violations of fundamental rights.
The need for attorneys continues
to grow every day, and it goes unheard
4

SUMMER 1987

"Once the execution date is set,
the race is on," said Justice
Thurgood Marshall.
and unmet. In the South, where death
row populations are the largest and the
need the greatest, virtually nothing has
been done at the state level.
Efforts have been made in Georgia
to establish funding for a capital defense
resource center at Georgia State University Law School. Yet, even though
Georgia is in dire need of lawyers
trained in death penalty litigation, no
funding has been provided. Since the
state allocates no funds for indigent defense at the trial level, leaving it to local
communities, it is unlikely that the state
will establish adequate funding for representation at post-conviction.
The North Carolina Death Penalty
Resource Center, housed in the state's
Office of the Appellate Defender, currently employs two attorneys. Through
the cooperation of the state supreme
court and the chief justice, private funding was obtained, and the group hopes
to stabilize in the future by receiving
permanent state funding.
In March Federal and state judges
met with Texas bar officials to try to
bring some order out of the chaos
there. Some headway has been made, although things have proceeded at a snail's
pace. A newly formed Death Penalty Legal Defense Fund, funded privately and
with $5,000 from the Texas Civil Liberties Union, has nearly completed a census of who is on death row and by
whom they are represented. PreViously,
an execution date could be set and
never brought to the attention of those
who would block it. According to Gara
laMarche, Director of the Texas Civil
Liberties Union, "We're looking at a
state where it is debatable whether or
not the schools will open. There won't
be any publicly funded professional staff
organization set up here. Nonetheless,
steps are being taken to turn what used
to be a seriously disorganized approach
to representation into a more orderly
system."
Alabama, Mississippi, Louisiana,
Oklahoma, and Arizona provide no funds
for attorneys handling state and federal
habeas corpus proceedings. While in
some states proposals have been made
to organize recruiting or funding efforts,

the numbers on death row continue to
mount while' no action is taken.
The need is urgent and the situation desperate, as the volume of federal
habeas petitions increases. More and
more indigent death row prisoners are
exhausting their direct appeals, which
means that more often, inadequate defense will result in the execution of
those who should have received a lesser
sentence. The problem is not new.
Sixty-three years ago, Clarence Darrow
said:
I will guarantee you that you can
go through the Tombs and you won't
find one out of one thousand that isn't
poor. You may go to Sing Sing and you
will not find one out of one thousand
who isn't poor. Since the world began, a
procession of the weak and the poor
and the helpless has been going to our
jails and our prisons and to their deaths.
They have been judged as if they
were strong and rich and intelligent
They have been victims, whether punishable by death for one crime or one
hundred and seventy crimes.
And, we say, this is no time to
soften the human heart. Isn't it?6

Representation
At Trial
That's the night the lights went out in
Georgia,
That's the night they hung an innocent
man.
Don't trust your soul to no backwoods
Southern lawyer . .. *

In the fearful world of capital punishment, individuals live or die simply
due to factors such as where they live,
the color of their skin, or their economic station. Sometimes, however, one
person may live and one may die just
because one attorney made a mistake,
and another did not.
Justice Thurgood Marshall has
pointed out that the compleXity of capital litigation and the inexperience of
many lawyers in capital cases may lead
to mistakes which spell the difference
between life and death:
'Clarence Darrow, Attorney for the Damned, Simon
and Schuster, Inc., New York, NY, 1957, p.1 02.
*"The Night the Lights Went Out in Georgia," Pix-Russ Music, written by Bobby Russell.

than poverty and poor lawyering."

Often trial counsel simply are unfamiliar with the special rules that apply
in capital cases. ... Though acting in
good faith, they ineVitably make very serious mistakes. Thus, in cases I have
read, counsel have been unaware that
certain death penalty issues are pending
before the appellate courts and that the
claims should be preserved; that certain
findings by a jury might preclude imposition of the death penalty; or that a
separate sentencing phase will follow a
conviction. The federal reports are filled
with stories of counsel who presented
no evidence in mitigation of their
client's sentences because they did not
know what to offer or how to offer it, or
had not read the state's sentencing statute. I kid you not, precisely that has
happened time and time again. 7
Almost as if to assure that no attorney ever takes a death penalty case
twice, thereby gaining expertise, most
states, particularly in the South, are unwilling to pay court-appointed counsel
adequately. Limits are placed on expenditures and compensation which, along
with discouraging attorneys from volunteering to take cases, means that funds
are not available for investigation, procurement of necessary expert witnesses,
or other expenses vital to the effective
assistance of a poor person charged with
capital murder.
The funds which states and counties
do prOVide are far below the minimum
amounts needed. One Mississippi lawyer
worked for 400 hours and was paid
$1,000, a compensation rate of $2.50
per hour.
While quality representation at the
post-conviction phase is most vital to
the ultimate fate of the defendant, vigorous represen~tion at the trial level
would alleviate the need for a large
number of appeals down the road. Fundamental improvement is needed in the
quality of trial preparation and performance, yet, ironically, the quality of representation usually improves as one
7Remarks of justice Marshall at judicial Conference
of United States Court of Appeals for the Second
Circuit, September 6, 1985. For examples of the
type of representation described by justice Marshall, see, e.g., Tyler v. Kemp, 755 F.2d 741 (11th
Cir. 1985); King v. Strickland, 748 F.2d 1462, 146364 (11th Cir.1985); Douglas v. Wainwright, 739 F.2d
531 (1984); House v. Balkcom, 725 F.2d 608 (11th
Cir. 1984); Young v. Zant, 677, F.2d 792, 798 (11th
Cir. 1982); Goodwin v. Balkcom, 684 F.2d 794 (11th
Cir. 1982).

One Mississippi lawyer worked for
400 hours and was paid $ I,000, a
compensation rate of $2.50 per
hour.
climbs the appeals ladder.
The Mississippi Supreme Court recently noted that, "the average Mississippi criminal defense lawyer has no familiarity [with] highly technical death
penalty issues.... In Mississippi, persons
accused of capital crimes have been represented by attorneys with no previous
trial experience of any kind and one was
even represented by a third-year law
student."s
The indigent defendant may pay for
the attorney's shortcomings with his or
her life.
For example, John Young, 18 years
old at the time the crime took place,
was convicted in the 1975 murder of
three elderly Macon, Georgia women.
Young was appointed an attorney who
was addicted to drugs and who actually
disappeared for years after the trial. He
also put on no mitigating evidence. He
missed details about Young's life such as
the fact that when he was three years
old he saw his mother killed by her
boyfriend.
Young's case went through habeas
proceedings before the attorney could
even be found. When he was located,
attorneys were able to document his
physical and emotional inability to represent anyone at that time. Yet the federal
court refused to consider the evidence,
saying that despite the fact that the attorney had gone into hiding and was unavailable during earlier appeals, the time
to have raised the issue had passed. In a
bizarre twist, the trial lawyer was convicted on drug charges, and found himself serving time in the same institution
as his former client.
James David Raulerson, convicted in
Florida of killing a police officer, had a
court-appointed lawyer who failed to
make any plea at all for his client's life.
"It's awfully hard to argue for a man's
life," he said. "I have done it too many
times, it never gets easy. 1do not feel as
though I can persuade you now. '"
"It's extremely difficult for me now
after having argued for two or three
-continued on next page

The condemned man himself remembers the many points of his procession
through the judicial system at which he
might have been spared, but was not. He
knows, too, from his years of waiting in
prison, that most of those who committed
crimes like his have evaded the execution
that awaits him. So do the prosecutors who
have pursued him through the court system, and the judges who have upheld the
sentence. And so do the defense lawyers,
exhausted and overwrought for reasons
that, given tlfeir client's crimes, must be
hard for most people to fathom.
I am one of those lawyers, and I know the sense
of horror that propels those
last-minute appeals. The horror derives not from death,
which comes to us all, but
from death that is inflicted at
,d"...
random.. .. Up close, that is
what capital punishment is like. And that is
what makes the state's inexorable, stalking
pursuit of this or that particular person's
life so chilling.

David Bruck
attorney in South Carolina

In the case of Michael Smith, executed
last summer in Virginia, there was c1earcut
constitutional error, but the lawyer didn't
raise it on appeal. They're not going to execute the lawyer. Lawyers don't even get
disbarred for that. Nothing happens! They
go right on practicing. But the client gets
executed for a mistake that the lawyer
made. To me, that is offensive beyond
words. There's something unseemly about
that, about executing people because their
lawyer didn't know that some case was
percolating in the federal system and was
about to be decided by the Supreme
Court. That was Michael
Smith's situation. That's not
right. It's like shooting ducks
in a barrel, killing a person if
the lawyer hasn't preserved
any of the issues. I don't
know what thrill the state or
the Attorney General gets
out of that. How defenseless can a person
be?

Stephen Bright
Southern Prisoners' Defense Committee,
Atlanta, Georgia

The lawyers who volunteer to
represent convicts on death row perform a second essential function: they
ensure that we do not forget what
we are doing.

Justice Thurgood Marshall

---------

"Irving v. State, 441 So. 2d, 846 (Miss. 1983).

SUMMER 1987

5

-continued from previous page

days to feel that I'm very effective in
front of you. . . . You heard all the testimony. I'll say nothing further on behalf
of my client other than just weigh and
consider your decision."
The attorney never told the jury
that Raulerson was married and had a
child; that his stepfather had died in his
arms after being shot several years earlier; or that he had maintained regular
employment for a number of years before the death of his stepfather.
In a classic example of how the
death penalty is arbitrarily applied. Judge
Joseph Hatchett of the U.S. Court of
Appeals for the Eleventh Circuit described the case of John Eldon Smith in
Georgia:

[Smith's codefendant] Machetti,
the mastermind of this murder, has had
her conviction overturned, has had a
new trial and has received a life sentence. This court overturned her first
conviction because in the county where
the trial was held, women were unconstitutionally under-represented in the
jury pool . .. .Her lawyers timely raised
this constitutional objection. They won;
she lives.
John Eldon Smith was tried in the
same county, by a jury drawn from the
same unconstitutionally composed jury
pool, but because his lawyers did not
timely raise the unconstitutionality of the
jury pool, he faces death by electrocution.
His lawyers waived the jury issue. Smith v.
Kemp. 715 F.2d 1459, 1476 (1983).
Young, Raulerson. and Smith have
been executed.
Trial attorneys for Terry Goodwin.
another Georgia case. stressed to the
jury that they were representing Goodwin only because they had to. They told
the jury. "W~I, if you decide to impose
the death penalty today and you decide
to sentence him to the electric chair.
historically speaking. you have got a very
likely candidate.
"He is a little old nigger boy, he
would not weigh 150 pounds. He had
got two court-appointed attorneys appointed by this court to represent him
to do the very best we can do for him.
He is poor. He is broke. He is probably
mentally retarded. I dare say he has not
got an I.Q. of over 70. He is uneducated. Probably just unwanted. This is
the kind of people that we have historically put to death in Georgia."
The jury sentenced Goodwin to
death. After years of appeals other at6 SUMMER 1987

torneys succeeded in having Goodwin's
death sentence set aside [684 F.2d 794
( 1982)] and a new trial granted. Goodwin pled guilty and is serving a life sentence in the Georgia prison system.
Goodwin is not an isolated example. Two other Georgia death row inmates. Charlie Young and George Dungee. were referred to as "niggers" by
their defense counsel in closing
arguments.
David Bruck. a defense attorney
from South Carolina. pointed out that
''These spectacles have a cost for our legal system, and that is the self-respect of
our legal institutions. We would not dispose of property in any legal proceeding
the way those people's lives were disposed of."
Justice Marshall. dissenting in the
denial of certiorari in Messer v. Kemp.
106 S.Ct. 864 (1986), wrote,

Counsel did not inform the jury,
during summation or at any other time,
that petitioner had no prior criminal history, had been steadily employed, had
an honorable military record, had been
a regular churchgoer, and had cooperated with the police. Counsel did not
give the jury a single reason why it
should spare petitioner's life. ...
The net result was that the petitioner was without an advocate at the
sentencing phase.
A former law clerk to Supreme
Court Justice John Paul Stevens recently
wrote that "the imposition of the death
penalty frequently results from nothing
more than poverty and poor lawyering."
In his experience he found, "Again and
again. in cases that I reviewed. potential
mitigating evidence was readily available--medical experts who could testify
to mental retardation or other evidence
of diminished capacity; relatives who
could help explain how and when this individual had been brutalized; fellow veterans who could testify about combat
valor. or about the haunting. warping effects of the battles they had experienced
together. Again and again. defense counsel made little or no effort to reach such
witnesses. "9
In June of this year the Supreme
Court denied relief to a Georgia deathsentenced inmate named Christopher
Burger. In his dissent. Justice Blackmun
said. "His counsel failed to investigate
'Sloan, "Death Row Clerk," The New Republic,
February 16, 1987.

mitigating evidence and failed to present
any evidence 'at the sentencing hearing
despite the fact that petitioner was an
adolescent with psychological problems
and apparent diminished mental capabili.
ties.
... "10
•
The lawyer never asked for a psychological evaluation of his client, spent
only six hours total with him, and rejected the assistance of a lawyer who
had known Burger from his home town
on the basis that the lawyer was black.
The lawyer had offered to come to
Georgia to assist at his own expense.
"In my view," said Justice Blackmun.
"if more information about this adolescent's psychological problems, troubled
childhood, and unfortunate family history
had been available, there is reasonable
probability that ... 'the sentencer- including an appellate court, to the extent
it independently reweighs the evidence--would have concluded that the
balance of aggravating and mitigating cir-:
cumstances did not warrant death.
Strickland v. Washington, 466. U.S., at
695.... 11
While some capital cases are welldefended by appointed counsel. as long
as many trial lawyers remain ill-trained,
underpaid and inadequately monitored.
the poor will continue the march to
their deaths without ever having been
given a fair chance in our legal
system.
FLORIDA'S CCR

More Staff
Needed for
"Emergency
Surgery"
Two years ago Florida created the
Capital Collateral Representative (CCR).
a law office mandated to represent indigent defendants in state and federal
post-conviction proceedings which challenge the validity of either the judgment
of guilt or the death sentence. 12
IOBurger v. Kemp, 55 L.W. 5131 (6/26/87).
"/d.
12See, Elvin, "Florida Death Penalty Appeals Office

The CCR office began operating in
the fall of 1986, as the population of
death row reached 239, the largest in
the United States, and as the pool of
volunteer lawyers available to provide
post-conviction death penalty representation became completely exhausted. In
a state where someone is sentenced to
death nearly every week, the backlog
resulting from the inability to proceed
with executions motivated the Legislature to act.
Volunteer groups were unable to
handle the tremendous caseload and recruitment of volunteer attorneys became
an impossible task. None of the large
law firms which had agreed to take cases
would get involved ahead of the issuance
of a death warrant. When the Florida
Supreme Court indicated that no one
would be executed without counsel,
wheels were set in motion for the creation of CCR. James Rinaman, past president of the Florida Bar Association, said
that the CCR bill succeeded in part because of the joint support of the Attorney General, the Governor, the judiciary, and the bar association, but that
most decisive in its passage was support
from 18 of the largest law firms in the
state. These same firms had been heavily
lobbied earlier to provide legal representation and consequently understood
the tremendous need for skilled counsel.
Last year, when former Governor
Graham began signing four warrants a
month, resources at CCR were strained
at the seams. Only 30 days were allowed to litigate death penalty claims
after the warrant was signed. Under this
system, at anyone time there are large
numbers of people who are eligible for
death warrants, but the Governor gives
no warning as..to which of those he will
sign the warrants on. With only 30 days
to appear before four or five courts, and
with nine attorneys to do that, working
at CCR burned out four lawyers within
the first year. Director Larry Helm
Spalding says, "Unless the executive develops some predictable method of signing death warrants, and until CCR is
properly funded, CCR cannot meet the
30-day rule and ensure meaningful access
to the courts."
Judge John C. Godbold of the Eleventh Circuit Court of Appeals said
that working within the 30-day limit
amounted to "emergency surgery," and
Opens," NPP JOURNAL, No.7, Spring 1986, p.1.

commented that "CCR needs to have
more lead time to work up the necessary papers and to do the necessary
preparation. Even 60 days would still be
emergency surgery."13
Desperate to convince the Legislature of the need for more money and
staff, last fall Spalding asked the Bar Information Program of the American Bar
Association's Standing Committee on
Legal Aid and Indigent Defendants to
sponsor a study of attorney hours required in post-conviction capital cases.
Spalding hoped to be able to establish a
baseline comparison to show CCR's
need for increased funding. The study,
conducted by the Spangenburg Group of
Newton Highlands, Massachusetts, was
to assist legislators in providing a reliable
caseload/workload formula to serve as a
foundation for CCR's budget request for
Fiscal Year 1988 and beyond. '4 It revealed that 41 firms in Florida averaged
"Source, NPP interview with Judge John C. Godbold on February 19, 1987.
l4"A CaseloadlWorkload Formula for Florida's Of-

2,284 attorney hours and $18,467 outof-pocket expenses on an "average"
death penalty case on appeal.
CCR's budget was determined
largely on a "best-guess" basis. The ABA
study has now shown that the guess was
inadequate.. CCR has requested an increase from $840,000 to $2.9 million.
"I think everybody realizes CCR
needs more help," says Jim Smith, former Attorney General and a prime
mover in the passage of the bill to create CCR, "but they are just not a popular program in the Legislature."
Additional positions have recently
been funded by the Legislature, and
CCR hopes to increase its staff of experienced attorneys.
-continued on next page
flce of the Capital Collateral Representative," and
a separate document on the survey of private attorneys, entitled "Time and Expense Analysis in
Post-Conviction Death Penalty Cases" are available
without charge from John Arango, project coordinator, Bar Information Program, Box 338, Algodones, NM (505) 867-3660.

SUMMER 1987 7

-continued from previous page

For more information about CCR,
contact Larry Helm Spalding, Capital
Collateral Representative, 225 West Jefferson Street, Tallahassee, FL 32301,
904/487-4376. IllI
POST-CONVICTION

ABA Funds
Death Penalty
Project
julia Cade
The nationwide problem of lack of
representation for indigent persons on
death row has become so critical that
the American Bar Association (ABA) has
become actively involved. The ABA's
Post-conviction Death Penalty Representation Project has been in the proposal/
study phase for several years, but was
formally inaugurated in August 1986.
"After years of foot-dragging," said
Russell F. Canan, consultant to the project, "the ABA has finally decided to take
an aggressive role in this crisis."
The Board of Governors of the
ABA has granted the Project $88,000
for fiscal year 1987-88.
At no time has the ABA taken a
position either in favor of or against the
death penalty. However, the ABA has
been on record for a number of years as
taking a strong stand supporting the
provision of counsel for post-conviction
proceedings. The paper resolutions by
the ABA House of Delegates in 1979
and 1982 on this issue have produced no
concrete respQnses. The new Post-conviction Project has received funding, has
a small staff and an initial crop of volunteer attorneys.
For years the full-time death penalty bar has consisted of approximately
one dozen attorneys on the staffs of organizations such as the Legal Defense
Fund (LDF), Southern Prisoners' Defense Committee (SPDC), Team Defense, ACLU, Southern Poverty Law
Center and specialized appellate offices
in public defender programs in a handful
of states. However, the national death
row census has climbed from 593 per-

julia Cade is a paralegal at the
Prison Project
8

SUMMER 1987

sons in December, 1979 to over three
times that number: 1,911 in August,
1987.
Part of the ABA Post-conviction
Project's mission is to appeal to state
legislatures, courts, Congress, bar associations and the general public through an
education campaign to prOVide adequate
public funding for representation of indigent death row inmates. By using the
Florida CCR example as a successful
model, along with similar programs in
California and North Carolina, the Project can build on what many think is the
only sensible long-range solution to the
crisis on death row: state-funded appellate offices/resource centers.
Until the long-range objective can
be met, an emergency placement system
has been set up as another part of the
ABA Post-conviction Project's mission.
Experienced post-conviction death penalty litigators have been hired as consultants for the private bar pro bono attorneys who take on the "falling between
the cracks" emergency cases in the interim. As of this writing, 70 attorneys

have volunteered. In addition, a recruitment effort Has been launched in the
large urban centers of New York City,
Boston, Philadelphia, Chicago and Washington, D.C. to enlist commitments from
large firms. The..next stage of recruitment will be in some of the death penalty states such as Texas and Arizona.
The consultants to the Project are
Esther Lardent and Russell Canan. Lardent has organized pro bono litigation
systems throughout the country, and
Canan is an experienced death penalty
litigator. Debbie Fins of the Legal Defense Fund also served as consultant during the first year. The group has developed the recruitment effort, drafted
pleadings and a handbook, and is formulating a mentor system in every state to
assist the volunteer attorneys with their
cases.
Interested attorneys should contact
Esther Lardent, ABA Post-conviction .
Project, 1800 M Street, N.W., Washing-.
ton, D.C. 20036, (202) 331-2279; Russell
Canan, 51 I E Street, N.W., Washington,
D.C. 20001 (202) 393-7676. IllI

u.s.

v. Michigan:
An Update From the Battlefield
Elizabeth Alexander
In the first issue
ofthejOURNAL 1, we
reported on the efforts of William Bradford Reynolds to
transform the Special
Litigation Section of
the Civil Rights Division into another battalion in the counterrevolutionary army
against civil rights. One of the major
battlefields in Reynolds' war has been
the State of Michigan. In 1984, Reynolds
personally vetoed a settlement negotiated by his own lawyers because it imposed too many obligations on the

Elizabeth Alexander is a senior staff attorney with the National Prison Project
'See Alexander, "Justice Department Retreats: The
Michigan Case," NPP JOURNAL, No. I, Fall 1984,
p.L

Michigan prison system. After Justice
Department lawyers filed a new toothless consent decree at Reynolds' behest,
federal district judge Richard A. Enslen
rejected it as unenforceable and reqUired
the Department of Justice and the State
to file a new consent decree that included significantly stronger provisions
for enforcement, including compliance
hearings and a role in monitoring for the
National Prison Project.
Since the consent decree was entered, in some areas the decree has had
a significant impact in curing constitutional violations. In other areas, major
problems remain. One constant, however, has been the failure of the Department of Justice to advocate on behalf of
the constitutional rights of the Michigan
prisoners.
Most recently, at the urging of the
Prison Project, and over the objections
of the Department of Justice, the judge
held a contempt hearing on the issue of

overcrowding. The judge learned that,
among other conditions caused by the
overcrowding, new prisoners were
being housed on the bulkheads in the
Reception Area. Aside from being a serious fire hazard, the Reception Center
was home to an army of pigeons that
befouled the beds and food of the
prisoners.
Based on the testimony at the hearing on May 22, 1987, the judge found
the State in contempt, temporarily
stopped the influx of prisoners into the
system, and ordered the State to end all
overcrowding in the system by November I, 1987, or pay fines of $10,000 per
day. The Department of Justice refused
to ask for sanctions against the State.
Another major victory for the Constitution occurred with the abolition of
the Michigan Intensive Program Center
(MIPC). This "super-maximum" prison,
originally set up as a facility for behavior
modification, locked troublesome prisoners for prolonged periods in cells in
which the lights were controlled from
outside the cell by the staff. A catwalk
allowed staff observation into an inmate's cell at any time without the inmate's knowledge. Indeed, the "psychologist" assigned to MIPC did part of his
"counseling" from the catwalk. The frustrated and isolated inmates responded
by throwing human waste and setting
fires. 2
Although Department of Justice experts condemned the prison, the consent decree failed to address MIPC's
continuing existence as a super-maximum facility. The National Prison Project, in its limited role as amicus curiae
(friend of the court), however, continued to insist on MIPC's abolition. Ultimately, the Michigan Department of
Corrections agreed to change MIPC into
a protective custody facility in order to
satisfy the court's orders. Throughout
the litigation, despite the strongly
worded reports of its own experts, the
Department of Justice never opposed
the continued operation of MIPC.
An even more egregious example
of Justice's blindness to basic constitutional requirements was its position regarding the mental health care provisions
of the consent decree. Under the consent decree and its State Plan for Compliance, the State of Michigan was to
present a plan for adequate mental
health care by April 1985. The Department of Justice agreed to an extension
of that deadline to October 1985.
On the date that the mental health
plan was due, the State filed an adequate

mental health plan-along with a motion
asking the court to relieve the State of
its obligation to implement the plan. The
Department of Justice did not oppose
the State's motion. Once again, the National Prison Project as friend of the
court had to battle alone for the Constitution. Luckily, the Prison Project prevailed and Judge Enslen held the State of
Michigan in contempt of court for failing
to submit a mental health plan to the
Court that the State was prepared to
implement. 3
A final example of Justice's approach to enforcing the consent decree
involves the fire safety provisions. Primarily because of bureaucratic delays in
planning, numerous provisions for fire
safety improvements have fallen seriously
behind schedule. In July of 1986, the
state officials met with Justice and its fire
safety expert. The fire safety expert recommended a set of revised dates for
completion of the projects, contingent
on agreement by the State to provide
closer monitoring on the projects and to
complete all the work by the end of
1987.
In October of 1986, the State filed
its motion for an extension of time. Justice urged the court to approve the request, even though the State's request
did not include the new monitoring requirements recommended by Justice's
fire safety expert. Subsequently, on the
eve of the hearing, the State proposed
even later dates for completion of the
projects. Even though many of the dates
extended into 1988, the Department of
Justice did not ask that the State be held
in contempt. Ultimately, although it
granted the extended schedules, the
court found the defendants in noncompliance with the fire safety requirements
and reqUired the State to designate
someone from the Governor's office to
monitor future fire safety compliance. In
the event of future noncompliance, the
court's order specifically referred to the
official's responsibility to demonstrate
why the State should not be held in contempt of court.
In the course of the litigation, Judge
Enslen had repeatedly reminded the Department of Justice that its role is to enforce the consent decree, rather than to
enforce the Department of Justice's limited notions of what the Constitution
requires. In short, Mr. Reynolds' personal assurance to the judge that the
Department of Justice would vigorously
enforce the consent decree has become
just one more broken promise from the
leading contra in the civil rights war. III

2Such problems are typical of those engendered by
such facilities. See Bronstein. "Super-Max Prisons
Have Potential for Unnecessary Pain and Suffering," NPP JOURNAL, No.4. Summer 1985, p.1.

3Subsequently the State submitted another plan to
the court. After modifications. in October of 1986
the court accepted the plan and ruled that the
State had purged its contempt.

Few Diversion
Progr~ms Are
Offered Female
Offenc(ers
Russ Immarigeon
"Planners concerned with reducing
the size of the female prison population," a report from the New York
State Division of Criminal Justice recently observed, "must look for solutions at the front end of the criminal justice system, not at the back end. That is,
programs and policies that are geared
toward keeping women out of institutions will have a greater impact on reducing the size of this population than
will efforts directed at lowering their
rate of return." I

The second part of the Women
in Prison two-part article appears
in this issue. This two-part article
raises serious doubts about the propriety and efficacy of imprisoning
women offenders who are not a
public safety risk. Last issue Russ
Immarigeon described the state of
women's imprisonment in the
United States and offered some
suggestions about how this situation has developed. In part two,
printed in this issue, he describes
several programs throughout the
country to divert or remove
women from incarceration and discusses concerns for testing the success of such diversion programs.
Unfortunately, very few programs
focus specifically on displacing women
offenders from terms of imprisonment.
In the paSt, female offender-oriented
programs have tended toward providing
increased (and necessary) services for
women and their children while incarcerated. Only recently have programs
started to specifically keep women from
-continued on next page

Russ Immarigeon is the Associate Editor of
Criminal Justice Abstracts, and a freelance writer specializing in criminal justice
issues.
I New York State Division of Criminal Justice Services. Female Offenders in New York State. p. 62.

SUMMER 1987

9

I

A high percentage of imprisoned women have
a history of being physically and/or sexually abused.
-continued from previous page

encounters as such until pressed to do

being imprisoned in the first place, or
reduce their length of stay after being
sentenced to jailor prison.
These emerging programs are long
overdue, and are especially timely.
Several months ago, the U.S. Bureau of Justice Statistics reported that
the population of women's prisons has
been growing at a greater rate than the
population of men's prisons every year
since 1981. Since crime statistics for this
period suggest that female criminality
has increased only with regard to property, non-violent offenses, this surge in
women's imprisonment results from
harsher sentencing for a class of offenders who would be less likely to receive prison terms if they were male?
Moreover, evidence increasingly
suggests that many imprisoned women
become "criminal" as a result of a history of physical or sexual abuse. Self-report data gathered by Brandeis University researcher Mary E. Gilfus from 96
women incarcerated at a state women's
prison in Massachusetts reveals some significant relationships between abuse and
"criminality."
"The link between early exposure
to violence and entry into criminal patterns," Gilfus argues, "lies in the economic necessity which is created by the
coping strategies chosen in responding
to physical and sexual violence." These
strategies include substance abuse, running away from home, and early
pregnancy.
Gilfus recently told the Third National Family Violence Research Conference held at the University of New
Hampshire that "as children [many of
the women she interviewed] were exposed to such an overload of traumatizing events, including parental death and
suicide as well as life-threatening physical
abuse, neglect and rape, that the day to
day violence in their lives was often
over-shadowed and down-played. They
were struggling so hard simply to survive one trauma after another that they
could not afford to stop to feel the pain
or register the impact of what seemed
like 'normal' violence. It seemed as if
they were accustomed to such a high
level of violence (much like background
noise) that they did not think it unusual
or abusive unless it became life-threatening, and therefore did not define violent

SO.3

2See, for example, Peter Applebome, "Women in
U.S. Prisons: Fast-Rising Population," New York
Times, June 16, 1987; and Nicholas C. McBride,
"U.S. Putting More Women in Prison, Victimizing
Many Children," Christian Science Monitor, June 16,
1987.

I0

Programs designed to address the
circumstances and needs of abused and
non-abused women offenders, and to divert or remove these women from imprisonment include the Justice Outreach
Program of the Women's Self-Help Center in St. Louis, Community Services for
Women of the Social Justice for Women
program in Boston, and the Elizabeth
Fry Center in San Francisco.

Women's Self.Help Center's Justice
Outreach Program
The Women's Self-Help Center
was established in 1976 to reduce physical and sexual abuse against women in
St. Louis by providing a crisis hotline,
client services, and community education
and training. Gradually, the Center's
professional and volunteer staff became
increasingly involved with battered
women who killed their partners in self
defense. Through work with these
women, the Center soon realized that a
high percentage of imprisoned women
have a history of being physically and/or
sexually abused.
Research conducted by the Center's staff confirmed their worst suspicions. "Thinking back over the first 17
years of their lives," the Center's study
found, "I 1.2% [of those women responding to the Center's initial inquiry]
reported having been sexually abused,
12% reported physical battering, and
16% reported having been subjected to
both physical and sexual abuse as
children.
"Reflecting on their experiences as
adults," the study also found, "25.6% [of
these imprisoned women] reported
being victims of physical battering, 4.8%
rape, and 23.2% reported being victims
of physical abuse and rape.,,4 Furthermore, a study by the Missouri Department of Human Services of women prisoners at the Renz Correctional Center
found that 80% of them were incarcerated as a result of their affiliation with
abusive males.
The Justice Outreach Program goes
into city and county jails to find women
arrestees or offenders with a history of
'Mary E. Gilfus, "Life Histories of Women in
Prison." Boston, MA: Women's Health and Learning Center, 1987. pp. 4-5.
.'Women's Self-Help Center, "The Justice Outreach Program: A Proposal." St. Louis, MO: Women's Self-Help Center, 1986. Further information
about this program can be obtained from Louise
Bauschard, Executive Director, Women's Self-Help
Center, Inc., 2838 Olive St.• St. Louis, MO 631031
(314) 531-9100.

being physically or sexually abused.
"Women are extremely self-blaming,"
says Carol Dodgson. a Women's SelfHelp Center social worker. "They are
confused about how they put up with
abuse for so long." The Justice Outreach
Program works with these women so
that they can talk specifically and articulately about their abuse in court. "It is
important," Dodgson adds, "to explain
the context of the killing to the jury."
The Justice Outreach Program acts
as an intermediary between women offenders and judges, jail staff, attorneys
and probation officers. In addition to locating community services and providing
counseling for these women, the program tries to educate criminal justice
professionals about the realities of
women who have suffered from physical
and sexual abuse.

Community Services for Women
In January 1987, Social Justice for
Women, a private, non-profit agency offering comprehensive services to female
offenders, established Community Services for Women, an alternative sentencing program to divert women from
MCI-Framingham, the women's prison in
Massachusetts.
According to Sister Jeannette Nor-·
mandin, who served for six years as Framingham's chaplain, the program recommends "punitive yet constructive
sanctions for women offenders who are
on the verge of going to Framingham
for the first time who are serious about
changing the course of their life."

"It's not somebody telling her
what she needs."
Sr. Normandin, who found at Framingham that "prison doesn't work as a
deterrent or as rehabilitation," attends
Boston Municipal Court sessions three
times a week to identify cases where
women offenders seem prison-bound.
Referrals also come from prosecution
and defense attorneys, probation officers, and even some judges. After identifyingpotential clients, Sr. Normandin
speaks with the client's prosecuting and
defense attorneys and the assigned probation officer. She then asks the court
for a continuance (in Massachusetts, sentencing occurs immediately following
conviction).
A sentencing plan is developed with
the offender. "It's not somebody telling
her what she needs," says Sr. Normandin. Many of the women accepted as
clients have problems associated with alcohol or drug abuse, mental illness or
mental retardation. Sentencing plans
consist of community service or restitution matched with the offender's specific

SUMMER 1987

"

'

:

skills and talents and special supportive
services designed to meet their needs.
Prostitutes, for example, receive shelter
from pimps and supportive services toward leaving the profession. Community
Services for Women monitors the sentencing plans, and reports to the court,
probation and defense and prosecution
attorneys on each plan's progress.s
The Elizabeth Fry Center

The Elizabeth Fry Center was established in 1986 to provide shelter and
meals, child care, job workshops, money
management training, parenting training,
employment counseling, substance abuse
counseling, personal counseling and recreational and religious programs for lowrisk women prisoners and their children
under age six.
The Center's program is authorized
by legislation which permits women prisoners to serve part of their sentence
with their children in a residential setting. "The Elizabeth Fry Center," according to The Rev. Deborah Haffner,
the Center's director, "is founded on
the conviction that it is with the community, not with the distorted culture of
prison, that the offender must learn to
cope."
The Center, a Project of the San
Francisco Council of Churches, is located
in a large Victorian house near Golden
Gate Park and the University of California Medical Center, and has enough bedspace for 10 women and their children.
Ten staff members operate the program
on an around-the-clock basis. 6
Conclusion

The programs identified in this article are not the entire universe of program efforts designed to divert women
from incarceration. Other programs exist, and several programs are now in the
process of starting. Clearly, however,
too few programs challenge the appropriateness of women's imprisonment.
More work is required.
As with any programs promising to
serve as an alteJ;native to imprisonment,
these face several important tests before
their displacement function can be defined as successful. First, do they act as
true alternatives to imprisonment? Second, do they divert enough women offenders to reduce overcrowding in many
women's institutions without prompting
an expansion of the number of available
cells? Lastly, what values accompany the
SFuther information about this program can be obtained from Sister Jeanette Normandin, Community Services for Women, 20 West St., Boston,
MA 02111/(617) 482-0747.
·Further information about this program can be
obtained from The Rev. Deborah Haffner, Director, The Elizabeth Fry Center, 12S 1 Second Avenue, San Francisco, CA 941 221(41 S) 681-0430.

Do they act as true alternatives to

imprisonment?
implementation of these programs?
None of these programs is being formally evaluated, but the history of alternatives to imprisonment programs suggests a number of cautions.
The Social Justice for Women's alternative sentencing program, for example, targets women who have not been
imprisoned before, along with women
who seem to require and desire direct
social services. Given the program's
small staff and caseload, however, how
many of these women would actually
have been imprisoned? Local studies
have not been done to identify the characteristics of women offenders in the
Boston Municipal Court receiving terms
of imprisonment. Moreover, in generally
providing services to women in need,
the program may be stretching its limited resources to cover too many functions, resulting, perhaps, in intervention
with women who would not ordinarily
be imprisoned.
Programs focusing exclusively on
women offenders are not likely to divert
the full number of women offenders
who could potentially be diverted from
imprisonment. The Elizabeth Fry Center,
for instance, only serves 10 women and
their children. Although several similar
centers exist in California, women entering the state's penal system outnumber women being released to these programs. Moreover, such programs are
unlikely to receive enough funding to
support the quantity and range of staff
expertise required for such efforts
touching larger numbers of women.

The criminal justice system is
basically a series of agencies with
uncoordinated services.
Thus, for the displacement of as
many women as possible from imprisonment, traditional criminal justice agencies, such as pretrial service, probation,
defense, and parole agencies, will have
to specifically apply their efforts toward
women offenders. However, few agencies are likely to initiate such an emphasis without the advocacy and input of reformers outside the system.
Lila Austin, a founder and administrator of Social Justice for Women,
makes several cogent points in this regard. The criminal justice system, she
says, is basically a series of agencies with
uncoordinated services. Women are particularly affected by such disorganization.
Within a relatively short period of time
(e.g., six months), women offenders
go rapidly through the criminal justice

process, from pre-trial detention to
post-release, and get programmatically
lost along the way.
Private sector agencies, Austin argues, are in a better position to take a
system-wide perspective, and to bring
various service providers together, often
for the first time, for the benefit of
women offenders. Social Justice for
Women, of whicln Community Services
for Women is a Significant part, provides
health, pregnancy, parenting, substance
abuse counseling and other services for
women offenders in a variety of institutional and non-institutional settings. In
this way, Social Justice for Women addresses women's needs, not state agency
priorities. "We're not running prisons,"
Austin observes, "we are on the outside
conscious of what's going on."
Finally, M. Kay Harris, an associate
professor of criminal justice at Temple
University, has written that "it is doubtful that reformers can make any real
progress toward reduction of imprisonment if their efforts are shaped and limited to satisfy the strident demands of
the present harsh political climate." Programs for women offenders may be
strongest in this regard. Like many of
the vibrant parent-child programs run by
Prison MATCH and other organizations,
the alternative to imprisonment efforts
in this article each stress the importance
of identifying and addressing the unique
social and economic needs of female offenders who are imprisoned, not the political and punitive needs of state agencies. Unlike institution-based programs,
however, they directly challenge the appropriateness of women's imprisonment.
Harris argues further that "significant movement away from the practice
of imprisonment cannot be anticipated as
long as alternatives (to imprisonment)
are developed from a dominantly pragmatic point of view without careful consideration of the underlying values and
goals.'>? Emerging women's programs
largely go beyond incarcerative goals and
values, and stress concrete and specific
needs. Observing that many of the
women in her study were drug-addicted,
Gilfus argues that "a sound social policy
should address addiction. Prisons are not
and will probably never be optimal sites
for the treatment of addictions." II

7M. Kay Harris, "Strategies, Values, and the Emerging Generation of Alternatives to Incarceration."
New York University Review of Low & Social Change,
12(1): 169, 1983-1984. See also, M. Kay Harris,
The Goals of Community Sanctions. Washington,
D.C.: U.S. National Institute of Corrections, 1986.

SUMMER 1987

II

SMOKING IN PRISON

Weighing Privilege to Smoke
Against Rights of Non-Smokers

L Felipe Restrepo
Anybody who has been subjected
to tobacco smoke in confined quarters
should not be surprised at the newfound social awareness that tobacco
smoke is, at least, obnoxious, offensive
and irritating, and at worst--deadly.
Constant exposure to environment
smoke in the restricted confines of a
prison or jail is a problem that must be
addressed. The Surgeon General of the
United States' annual smoking report
confirmed the obvious, that the ill effects of tobacco smoke are not confined
to the smoker. "[It] is now clear that
disease risk due to inhalation of tobacco
smoke is not solely limited to the individual who is smoking, but can also extend to those individuals who inhale tobacco smoke in room air."1
While there is no constitutional
right to be free from tobacco smoke,
there is likewise, no legal right to smoke
in the presence of non-smokers. John F.
Banzhaf, the Executive Director of Action on Smoking and Health (ASH) suggests that the rights of non-smokers and
smokers can be readily accommodated
by restricting smoking to designated
areas. Such an approach would be particularly suitable>-in a prison situation where
the privilege to smoke must be weighed
against the rights of non-smokers to be
free of tobacco smoke. Because individual inmates are not free to move about
the prison at their pleasure the only way
to ensure that both interests can be accommodated would be to establish
smoking and non-smoking sections in
common areas.
The privilege to smoke is currently

regulated in common carriers, no-smoking areas in theaters, hospitals and public
buildings, to cite a few. Many ordinary,
and less offensive activities, such as consuming liquor, spitting, changing one's
clothes and listening to loud music are
currently regulated or prohibited without violating anyone's privacy rights.
Government in this country has traditionally regulated activities that in and of
themselves might not be offensive or
hazardous but when performed in the
presence of others prove to be both obnoxious and hazardous. Spitting, for example, was declared illegal due to the
spread of tuberculosis at the turn of the
century; while those of majority are free
to drink, they are not free to drive and
endanger the lives of others.
In further support of his position
that there is no per se "right" to smoke
Banzhaf argues that common carriers
and public places are under no obligation
to accommodate analogous activities
such as chewing and spitting tobacco and
burning incense. Furthermore, smoking
has long been regulated with the objectives of reducing fire risks and damage
to property and manufactured goods.
One can only hope that protecting the
health of non-smokers is as worthy a
goal.
The Surgeon General's most recent
report,2, only confirms numerous earlier
studies which established a clear link between exposure to tobacco smoke and
various types of iIInesses 3•
The relative abundance of data
reviewed in this Report, [The Surgeon
General's 1986 Report], their cohesive-

Felipe Restrepo is a former law clerk at
the Prison Project who now works as a
public defender in Philadelphia.

2The Health Consequences

'Washington Post. Dec. 17. 1986. p.AI.

12 SUMMER 1987

of Involuntary Smoking.

1986. U.S. Dept. of Health and Human Services.
'See. for example, "Lung Cancer and Passive
Smoking," Int j. Cancer 27, (1-4) 1981; "Nonsmokers Rights," The AMAJournal. May 19, 1978.
Vol. 239. # 1O.

ness, and their biological plausibility
allow a judgement that involuntary
smoking can cause lung cancer in nonsmokers. Although the number of lung
cancers due to involuntary smoking is
smaller than that due to active smoking,
it still represents a number sufficiently
large to generate substantial public
health concern}
The fa~ that other carcinogens and
pollution sources have been prohibited
or are strictly regulated by federal, state
and local governments supports the
proposition that the general public has a
right to be protected from such agents.
According to a 1985 Gallup survey, conducted on behalf of the American Lung
Association, 75% of all adults polled believe that smokers should refrain from
smoking in the presence of non-smokers;
79% of those polled were of the opinion that smoking should be restricted to
designated areas in the work place. Another poll conducted by Liberman Associates on behalf of the American Lung
Association found that 94% of those
polled were of the opinion that public
places should have designated smoking
areas; 85% of those polled felt that
smoking should be restricted to designated areas in the work place.
State and local legislators have responded to public demand by passing
laws regulating smoking in public places.
Today, according to the Office of Smoking and Health's "National Status Report," 42 states and the District of
Columbia have passed some form of legislation governing the "privilege" to
smoke. Alaska, Florida, Minnesota, Montana, Nebraska, Utah, and Washington
have enacted comprehensive legislation
prohibiting smoking in public places. Seventeen other states have enacted legislation restricting smoking to designated
areas in offices and other work places.
Two recent federal courts have
recognized employees who are particularly sensitive to tobacco smoke as handicapped employees for purposes of the
Federal Vocational and Rehabilitation
Act. 29 U.S.c. 70 I et seq. Although the
plaintiffs were not afforded relief in
these particular cases the courts were
willing to recognize the severe implications of exposure to tobacco smoke in
the work placeS. In Parodi the case was
remanded to determine whether suitable
employment in a safe environment was
available. The Vickers court refused relief
arguing that there was no duty on the
part of the employer to prOVide an environment wholly free of tobacco smoke.
The court also noted that the plaintiff
could help himself by simply closing his
'See footnote 2.

'Parodi v. Merit Systems Protection Board, 690 F.2d
731 (9th Cir. 1982); Vickers v. Veterans Administration. 549 F.Supp. 85 ryv.D. Wash. 1982).

office door and that the employer had
made reasonable efforts to accommodate the employee's handicap. Although
these cases were decided prior to the
1986 Surgeon General's Report, the
conclusions of the Report are consistent
with the court's findings. However, it
should be noted that the Surgeon General emphasized that the mere separation of smokers and non-smokers within
the same air space is not enough to
eliminate the adverse effects of passive
smoking. The Report concluded:
I. Involuntary smoking is a cause of
disease, including lung cancer in
nonsmokers.
2. The children of parents who
smoke compared with the children of
non-smoking parents have an increased
frequency of respiratory infections, increased respiratory symptoms, and
slightly smaller rates of increase in lung
function as the lung matures.
3. The simple separation of smokers
and non-smokers within the same air
space may reduce, but does not eliminate, the exposure of non-smokers to
environmental tobacco smoke. 6
Given the confinement and close
quarters associated with prison life a
substantive argument can be made that
the effect of tobacco smoke on nonsmokers violates their Eighth Amendment right to be free of "[unnecessary]
and wanton infliction of pain."? The Supreme Court long ago articulated the
standard governing Eighth Amendment
violations as: "[The] evolving standards
of decency that mark the progress of a
maturing society.',a
As society has come to recognize
the ill effects of passive smoking in the
past few years, a logical connection can
be drawn between exposure to tobacco
smoke in a confined area with little or
no ventilation and "... confinement conditions that can lead to painful and tortuous disease with no penological purpose."9 The Federal Bureau of Prisons
has recognized the potential harm associated with passive smoking and has published rules establishing non-smoking
areas within the institutions under its jurisdiction. lo The comment to the rule
notes that:

The Surgeon General of the United
States has determined that smoking and
passive inhalation of environmental tobacco smoke pose a health hazard. The
Bureau of Prisons, in establishing its
"See footnote 2, page 7.

7Gregg v. Georgia, 428 U.S. 153, 173 (1978).
STrop v. Dulles, 356 U.S. 86, 101 (1958).
'Daigre v. Maggio, 719 F.2d 1310, 1312 (5th Cir.
1983), citing Estelle v. Gamble, 429 U.S. 97, 102
(1976); Rhodes v. Chapman, 452 U.S. 337, 362
(1981).
,oFederal Register, Vol. 51. No. 53, p. 9615, Sec.
551.160 (1986).

smoking/non-smoking rule, is attempting
to reduce potential hazards to individual
health and safety, and to provide a
more comfortable living and working environment for staff and inmates. By providing designated areas for smokers, as
well as other areas where individuals are
not exposed to smoke the Bureau is
eliminating a potential source of discord
among inmates. II
Those even vaguely familiar with
prison conditions are aware of acute
ventilation problems in many corrections
facilities. Prison litigation is replete with
references to inadequate prison ventilation and air f1ow. 12 It would stand to
reason that, given the nature of confinement in a restricted environment, the ill
effects of passive smoking are
exacerbated.
Any discussion of this issue would
not be complete without addressing the
priVilege to smoke and its implications.
Smoking may be the only source of
pleasure many inmates enjoy and it may
help reduce tensions among the prisoner
population. Depriving prisoners of this
priVilege altogether would no doubt increase tension and could prove to be a
point of contention between smokers
and non-smokers. Furthermore, many
guards and other staff members may resent not being able to smoke among the
prisoner population.
Although there are no easy solutions to this problem, some alternatives
exist. An increased awareness of the
dangers of passive smoking should encourage classification systems which take
smoking into consideration; classification
schemes might consider smoking when
assigning cellmates. The privilege to
smoke can be preserved while minimizing the exposure of non-smokers to tobacco smoke by designating non-smoking
sections in common areas such as dining
halls, day rooms and by improving the
ventilation systems in prisons.
It would be unrealistic to expect
every prison and jail to adopt the same
regulations or criteria when addressing
this problem in light of the differences in
size, logistics, and staff. These problems
should not give rise to excuses for doing
nothing or postponing action on this
problem.
Decisions must be made and various
possibilities should be explored in developing a plan that would accommodate
the interests of both groups. The ill effects of "passive smoking" are all too
obvious and demand immediate
attention. II

For the Record:

• On May I, 1987, the National
Prison Project announced that its AIDS
Education Project had completed and
published a R'esource Bibliography on
AIDS Among Prisoners. The bibliography
lists the AIDS policies of various state
and federal correctional agencies, educational and trainifilg materials, legal cases
and articles on legal issues, general reports and articles in the press. Copies of
the bibliography are available from the
National Prison Project at a cost of
$5.00, prepaid.
•
The Sentencing Project of Washington, D.C. announces the publication of
the 1987 National Directory of Felony
Sentencing Services. The 23-page directory lists 83 programs in 25 states that
offer services to defense attorneys in
preparation of alternative sentencing
plans for felony offenders. Listed programs include both public defenderbased services and private services that
accept referrals on a fee basis. Copies of
the Directory are available at the following costs: 1-4 copies, $9.00 each; SIS copies, $7.50 each; 16 or more copies, $6.00 each. Order from: Directory,
The Sentencing Project, I 156 15th St.,
N.W., Suite 520, Washington, D.C.
20005/(202) 463-8348.
• Administrative Director Sharon
Goretsky has left the Prison Project to
take a job as administrator of a D.C. law
firm.
The Prison Project is happy to welcome two new staff lawyers, Mark Lopez and Jere Krakoff. Lopez, a graduate
of Rutgers University Law School, has
worked at the ACLU of Illinois for the
past two years, having been chosen from
over sixty candidates to receive the
Kennedy-Coleman Fellowship for minority attorneys. At the ACLU of Illinois,
Lopez worked on a wide range of civil
liberties cases, including drug testing,
AIDS and individual rights, and First
Amendment. Krakoff has extensive litigation experience in prison and other civil
Mark Lopez

Jere Krakoff

"See footnote 10 at 9615.
12See, for example: Ramos v. Lamm, 639 F.2d 559
(10th Clr. 1980); Toussaint v. McCarthy, 597
F.Supp. 1388 (N.D. Cal. 1984); Wright v. Rushen,
642 F.2d 1129 (9th Clr. 1981); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.1. 1977).

SUMMER 1987

13

NATIONAL
PRISON
PROJECT

LUNCH
i

Participants are

If

on their own

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pre·re.... m, to. d" N,dooaI
Celebration-I am enclosing the $35 fee.

NORVAL MORRIS
Kreeger Professor of Law, Univer

Anniversary Celebratiaij

Projw', "'" Anni......"

Please send me information for overnight hotel arrangements.
6:00 PM

Cocktails (cash bar)

7:30 PM

Dinner Party

NAME--------,-----------------------,iJ!!
ORGANIZATION - - - - - - - - - - - - - - - - - - - - - - i i f J ? J

ADDRESS

I

I

N!
REMARKS:

Others who may be interested in attending (please include address):

I-----------------fil

I
I
I

ALVIN J. BRONSTEIN
Executive Director, The National Pri

JJl,TV

1------------------iifJ?J
Send to: National Prison Project, 1616 P Street N.W., Washington, D.C. 20036.
Space is limited so please register by September 15.

II.

IRA GLASSER
Executive Director, American Civil Li

KEYNOTE SPEECH: JOHN COLEMAN
former President, Edna McConnell C

CocktailS and Dinner will be held at the Hyatt Regency
on Capitol Hill (400 New Jersey Avenue, N. w.)
.ECBUUll1E!- ll1E!-Ell1E!B

rights areas. He handled Inmates of the
Allegheny County Jail v. Pierce, and other
significant prison cases during his more
than ten years as an attorney for a Pittsburgh Legal Services program. More recently he worked for the Lawyers'
Committee for Civil Rights Under Law,
where he litigated, among other things,
a number of voting rights and school desegregation cases.
The VORP Network News, the
•
quarterly journal of the Victim-Offender
Reconciliation Program, is now available
for general subscriptions. Published by
the PACT Institute of Justice of Michigan
City, Indiana, the journal covers current
trends in victim issues, community corrections, mediation, or restitution programming. Regular features include case
studies, mediation issues, profiles of new

programs, interviews with prominent
criminal justice practitioners, and up-todate news about funding, development,
and other issues equally pertinent to already operating programs as well as programs in the planning stages.
"VORP" refers to the face-to-face
meeting conducted by a trained mediator between victim and criminal offender. During the meeting, which is
voluntary for both parties, facts of the
case are discussed, feelings talked about,
and appropriate restitution negotiated.
While only a handful of programs were
in operation even as recently as three
years ago, today there are VORP programs in over 25 states, as well as
throughout Canada and England. These
programs are operated by judges, probation departments, private organizations.
police and sheriffs' departments, victim

organizations, and other community
groups.
Subscriptions to VORP Network
News are $20 for the calendar year; bulk
subscriptions are available. For sample issue or further information. contact
PACT Institute of Justice, 90 I Washington Street, P.O. Box 177. Michigan City.
IN 46360/(219) 872-3914.
•
The Lewisburg Prison Project. P.O.
Box 128, Lewisburg. PA 17837, distributes booklets which are helping prisoners nationwide to solve problems
within the pris~ms. A quarterly "Legal
Bulletin" is available on request by free
subscription. Four manuals. on parole.
civil actions. paralegal advocacy. and administrative detention. as well as sets of
the 30 Bulletins, are distributed at a low
cost; send· for a brochure.

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
~ prison issues (many case cita1 tions). 24 pages, $2.50 prepaid
.~. from NPP.
The National Prison Project Status Report lists by
state those presently under
court order, or those which
have pending litigation either
involving the entire state
prison system or major institutions within the state. Lists
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.

The National Prison
Project JOURNAL,
$20/yr. $21yr. to prisoners.

QTY. COST

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 to

The National Prison Project
1616 P Street. NW
Washington, D.C. 20036

QTY. COST

Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
subject contained in our files.
Includes information on abortion, behavior modification
programs, lists of other bibliographies, Bureau of Prison
policies affecting women in
prison, juvenile girls, women in
jail. the problem of incarcer-

NAME

.~

'I!!'J
•.,,~.

.....
•

•

QTY.COST

A Primer For Jail Litiga- .
tors is a detailed manual with
practical suggestions for jail Iitigation. It includes chapters on
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. 1st edition, February
1984. 180 pages. paperback.
$15 prepaid from NPP.
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. $15 prepaid from NJP.
-'-

_

ADDRESS

_

CITY. STATE, ZIP

_

SUMMER 1987

15

The following are major developments in the Prison Project's litigation
program since December 31, 1986. Further details of any of the listed cases
may be obtained by writing the Project.
Black v. Lewis-This case, challenging
the conditions of confinement in the Administrative Segregation Unit at the Arizona State Prison in Florence, was settled with a consent decree in June 1985.
In June of this year the court vacated
the defendants' motion to dismiss and
found the defendants in noncompliance
with two provisions of the stipulated
agreement. The court also extended the
monitoring period to July 31, 1987 and a
compliance report was submitted by the
monitor at that time.
Bobby M. v. Graham-This case challenges conditions and practices at three
Florida juvenile training schools. A settlement was reached in April on all the
issues and final court approval is expected during the summer. All issues
were settled favorably to the plaintiffs.
There will be now be two 100-bed secure facilities where there had been
three training schools confining a total of
1200 children.
Cody v. Hillard-This suit challenges
conditions at the South Dakota State
Penitentiary. On January 12th, we reargued the overcrowding issue before
the Eighth Circuit sitting en bane. A
compliance hearing was held on July 7lOon the issues settled in the partial
consent decree.
Inmates of D.C. jail v. jackson-This
case challenges conditions, primarily overcrowding, at the D.C. Jail and we have
previously obtained a series of favorable
decisions. On March I I, the court entered a contempt order against the defendants due "to continued overcrowding
and other issues.

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

16

SUMMER 1987

Inmates of Occoquan v. Barry-This
lawsuit was filed in August 1986 and
challenges conditions at the Occoquan I,
II and III facilities at Lorton Reformatory,
the District of Columbia's prison in Virginia. An order requiring a population
cap, effective June I, was stayed by the
judge, extending the date until at least
the end of July. A special officer has also
been appointed by the judge to investigate ways of coping with the influx of
prisoners.
jerry M. v. D.C.-This action challenges conditions of confinement at
D.C.'s juvenile facilities. The second and
third monitor reports have been filed as
well as the plan for reform required by
the consent decree. Defendants are not
in compliance and further litigation may
be required. Early this year the plaintiffs
received payment of $94,000 in attorneys' fees for the work leading up to
the consent decree.
Palmigiano v. DiPrete--This is the
statewide prison conditions case in
Rhode Island which preViously resulted
in a series of favorable decisions. In December, the defendants filed a motion
asking that further population reductions
scheduled for January I, 1987 be re-examined. A haaring was held May 22-23.
The judge reserved decision on the defendants' motion and issued an interim
order imposing a $3,000/day fine beginning August I, 1987 if the current population cap is exceeded.
Phillips v. Bryan-This is a conditions
case at Nevada's maximum security
prison which resulted in a consent decree in 1983. A hearing was held on July
27, 1987 on plaintiffs' motions to continue the court's jurisdiction and to have
defendants held in contempt for violations of the settlement.

Shrader v. White--Prisoner access to
tools and scrap metals was the only outstanding issue in this case challenging
conditions at the Virginia State Penitentiary at Richrpond. In Maya settlement
was reached in the plaintiffs' favor, providing for the adequate securing of these
tools and metals to reduce the possibility of these materials being made into
~
weapons.
U.S. v. Michigan/Knop v. johnsonThis is a statewide Michigan prison conditions case. Trial was completed in
Knap in April 1987, and the parties are
awaiting the court's decision. In U.S. v.
Michigan the court issued a temporary
order in May cutting off prisoner intake
into the Department of Corrections.
The court also found the State of Michigan in contempt of court with fines of
$10,000 per day if overcrowding continues after November I, 1987. The court
is considering whether to make the
Knop plaintiffs full parties in the U.S. v.
Michigan case.
Washington v. Tinney/johnson v.
Galley-This case challenges conditions
and allegations of brutality and use of
force at two Maryland state prisons. The
NPP is in the process of settling the majority of the issues in this suit. Those issues which remain unsettled will most
likely go to trial the latter part of
September.
Witke v. Crowl-Equal protection and
conditions of confinement are the issues
in this case filed in 1982 on behalf of the
women incarcerated at the North Idaho
Correctional Institution. In response to
objections filed by the Prison Project,
the court modified a previous order
which adopted the monitor's report on
defendants' compliance with the terms
of the settlement agreement. The court
found the defendants not in compliance
with the requirements for parity in industry programs. II
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