ITHOUT CLIENTS < .
there can be no lawsuits. Without pris"
oners who are willing to step
out of the darkness of prison
life into the light of public exposure, the litigation described in the following pages
could not have happened. This
fifteenth anniversary issue of
r~ tm
the JOURNAL is therefore
dedicated to the unrealized
!
promise of equal justice under
law and to~ all of the men,
women and children in America's cages. In particular, we
wish to recognize the courageous men and women who
have worked with us to
improve the lives of their
fellow prisoners:
Nick Palmigiano, Leonard
Jefferson-Rhode Island
Bobby Battle-Oklahoma
Worley james, jerry Lee
Pugh-Alabama
Scotty Grubbs-Tennessee
Dwight Duran, Sharon
Tower, Lonnie DuranNew Mexico
Lois Witke-Idaho
Fidel Ramos-Colorado
Charles Black, Eldon
Escalante, Travis
Williams, Armando MunozArizona
Agnes Spear, Maile Silva, Bernadette Kukahia, john Wilder, jeff Mueller, Gene Spurgeon-Hawaii
Pat Canterino-Kentucky
Robert Lovell-Maine
Gary Knop-Michigan
Billy Shapley-Nevada
Gary Nelson-South Carolina
Roger Flittie, William CodySouth Dakota
Everett Shrader,
joe Giarratano, Willie Lloyd
Turner, Alan Brown,
johnathan Lee "X"-Virginia
Felix Delgado-Wisconsin
Inmates of the D.C. jail and
Occoquan-District of
Columbia
and to
Frank Coppola, whose life was
taken by the State of Virginia in the ultimate act of
barbarism.

W

-Alvin J. Bronstein

C.1'11~_

NADONAL

PH N

PIlle]
IN THE

WORDS OF JUDGES

We thought it would be interesting to look
at a sampling of judicial comments on prison
litigation over the years:

Palmigiano v. Garrahy, 443 F.Supp. 956
(1977):
Officials who engage in massive, systemic deprivations of prisoners' constitutional
rights are entitled to, and can expect, no deference from the federal courts, for the constitution reserves no power to the state to
violate constitutional rights of any citizens.

This case is not an exercise in making
prison life more pleasant for prisoners, nor is
the ACI about to be transformed into a Holiday Inn. The conditions under which inmates
in Rhode Island exist shocked the Court, and
the Court is convinced that they would
shock the conscience of any reasonable citizen who had a firsthand opportunity to view
them.
In effect, each prisoner sentenced to a
prison term in Rhode Island, or sent to the
ACI awaiting trial, is sentenced to a regime
in which he will be forced to live in a state
of constant fear of violence, in imminent dan"ger to his bodily integrity and physical and
psychological well-being, and without opportunity to seek a more promising future.
The lack of sanitation, lighting, heating,
and ventilation, and the noise, idleness, fear
and violence, and the absence or inadequacy
of programs of classification, education, physical exercise, vocational training or other constructive activity create a total environment
where debilitation is inevitable, and which is
unfit for human habitation and shocking to
the conscience of a reasonably civilized
person.
The Court was particularly struck by
the testimony of one expert who had directed the prison systems in both Minnesota
and Delaware for a number of years. Heobserved that the ACI was the only prison he
had ever visited for which he could find
nothing good to say. In common with other
witnesses, he found every evidence of a management overwhelmed by the problem of
managing a population of prisoners in a building of so many problems, and a staff so accustomed to conditions of deterioration that
they had become inured to what they lived
with. These conditions and this attitude have
a devastating impact on inmates, reinforcing
their low self-esteem and making rehabilitation impossible.
These conditions of confinement serve
no legitimate correctional purpose ... and
are so far beyond the pale of civilized standards that they would be unjustified even if
they did serve some such purpose.

2

FALL 1987

THE BEGINNING

Sixties Civil Rights Gave
Momentum to Prisoners' Rights
Sam Walker
Friends and foes alike have characterized the exploSive growth of constitutional law over the last 20 years as a
"rights revolution." One critic refers to
the network of public interest law
groups as the "rights industry." This
critic's intended insult is in fact a tribute
to the sustained commitment to extend
the principles of the Bill of Rights to all
areas of American society. If there is a
rights industry then certainly the
ACLU's National Prison Project is one
of its most industrious -and effectiveparts.
The fifteenth anniversary of the National Prison Project is an occasion to
reflect on the sweeping changes in civil
liberties over the past 20 years. The
changes in the law are only one part of
that story. Equally important are the
changes in public attitudes about civil liberties and the transformation of how the
ACLU is organized to carry on the fight
for civil liberties.
Twenty years ago the ACLU's civil
liberties agenda did not include a distinct
prisoners' rights item. Indeed, most of
today's compelling civil liberties issuesabortion, women's rights, gay and lesbian
rights, national security-were either
just emerging or did not exist at all.
The National Prison Project is, in
microcosm, the story of the transformation of American civil liberties. The Project grew out of the I960s civil rights
movement which inspired Virtually all of
the new rights movements. Prison Project Director AI Bronstein began his career as a full-time civil rights lawyer in
the civil rights movement in 1964 with
the Lawyers Constitutional Defense
Committee. LCDC coordinated the efforts of hundreds of attorneys who volunteered to go into the Deep South to
provide legal assistance to civil rights
workers at a time when no local lawyers
would handle civil rights cases. The
southern civil rights movement had
other wholly unanticipated consequences. By bringing volunteers into direct contact with the struggle for justice
it heightened their awareness of other
areas of injustice and deepened their
personal commitment. It literally

Samuel Walker is Associate Professor of
Criminal Justice at the University of Nebraska, Omaha and is writing a history of
the ACLU.

The National Prison Project is, in
microcosm, the story of the
transformatJon of American civil
liberties.
changed peoples' lives. As Henry
Schwarzschild, LCDC Director and current head of the ACLU Capital Punishment Project· put it, "a lot of those lawyers went south and never returned."
The civil rights movement provided
the inspiration for the revived women's
movement, the new movements for Native American rights, gay rights, students
rights, as well as the anti-Vietnam War
movement. All these movements borrowed the rhetoric and tactics of the
civil rights movement. But on a more
fundamental level the struggle for black
equality heightened an awareness of the
unfinished business of the American
commitment to equality and justice and
forged a commitment to apply the Bill
of Rights to preViously neglected areas
of our society: schools, the military,
mental hospitals and, of course, prisons.
The "rights revolution" was not, as neoconservatives argue, an elitist coup,
foisted on the country by the courts and
the public interest bar. Rather, it was a
broad-based revolution of rising expectations that expressed a demand for digTHE

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 Uberties 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 ad-

ministrative. legislative and judicial channels; and to develop aJ·
ternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the
stipulation that the National Prison Project JOURNAL be credited
wnn 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, Inc.

[I

nityand participation on the part of millions of previously voiceless and
powerless victims of injustice.
It is fashionable today to sneer at
the I960s, to dismiss it as a decade of
mindless and destructive excess. One
critic called it "a slum of a decade."
. There was much destructive or silly excess. But the I960s also stand as a historic awakening in American history, a
period of a compelling vision of equality
for all people in our society. Many activists of that period have fallen away,
either in frustration or neo-conservative
backlash. The historic contribution of the
ACLU, as exemplified by the National
Prison Project, has been to take emerging ideas about individual rights and give
them intellectual coherence and organizational force. The Sixties never died.
The best of that decade continues in the
special projects of the ACLU, including
the National Prison Project.
In a formal sense, the National
Prison Project evolved out of two independent efforts. In Virginia, civil rights
attorney Phil Hirschkop began handling
an increasing number of complaints from
prisoners in local institutions. Hirschkop
was himself a veteran of the civil rights
movement as one of the organizers of
the Law Students Civil Rights Research
Council (LSCRRC). As word of his interest and expertise began to spread, he
soon found himself swamped with a
flood of over I00 letters a week. As he
remembers it now, "We were running a
'mom and pop' operation in our living
room." Meanwhile, in Buffalo, New
York, law professor Herman Schwartz
began handling prisoners rights problems
at the New York state penitentiary at
Attica several years before the 1971 riot
that made "Attica" a household word.
Independently, Hirschkop and
Schwartz helped to shape the emerging
prisoners rights movement intellectually
and organizationally. Both began to
sense that the problems facing prisoners
should not be seen as discrete First
Amendment 0t. due process problems.
The ACLU's involvement in prisoners
rights issues went back to the late
I950s. The most important early cases
involved the First Amendment rights of
Black Muslims. The Muslims were haVing
considerable success recruiting among
black inmates and prison authorities, terrified at this assertion of black self-consciousness, sought to shut down the
Muslim activities by banning distribution
of the Koran. The ACLU won several
Muslim cases on free exercise of religion
grounds. By the late 1960s both Hirschkop and Schwartz understood that the
real problem was the unconstitutionality
of prison life itself. Hirschkop published
the first article that pointed in the direction of an attack on the totality of con-

VA Prisoners Find Advocates
in Early Prison Reformers
Michael Millemann
In the summer of 1968, I was working
as an ACLU law clerk for Phil Hirschkop
when Phil received a letter "kited" out
of the Virginia State Penitentiary. Phil's

Michael Millemann is Professor of Law at
the University of Maryland Law School. He
has been involved in prisoner and civil
rights since his days as an ACLU law clerk
in the late 60s.
ditions in prisons.
The practical consequences of this
conceptual revolution were immediately
obvious. An attack on the full range of
prison conditions reqUired a new organizational strategy. The traditional ACLU
pattern of taking individual cases and assigning them to volunteer attorneys was
simply inadequate to the enormous task
posed by American prison conditions.
While other people across the country
began to recognize the need for a
broad-based assault on prison conditions,
Hirschkop and Schwartz found an institutional home in the ACLU that could
translate this vision into effective action.
Hirschkop secured a grant to establish a
prisoners rights project with the ACLU
affiliate in Northern Virginia in 1968
while Schwartz established a similar
project with the New York Civil liberties Union, then directed by Aryeh
Neier. Meanwhile, the 1968 ACLU Bien-

By the late 1960s both Hirschkop
and Schwartz understood that the
real problem was the
unconstitutionality of prison life
itself.
nial Conference declared prison conditions a "prime new area" for the ACLU.
Aryeh Neier's role was particularly
important. As Director of the NYCLU
he perfected the strategy of organizing
civil liberties work through grant-funded
projects. The NYCLU's largest and most
successful effort was the Mental Health
Law Project directed by Bruce Ennis.
This strategy not only tapped an entirely
new source of funds for the ACLU but
allowed it to mobilize cadres of lawyers
who could become fully expert in their
particular fields. Given the intractable
problems of prisons, and what soon
emerged as the serious challenge of
monitoring compliance with court orders, this new style of profeSSionalism
was an invaluable supplement to the

response to that letter triggered a series
of events that, combined with the extraordinary wor.k of Herman Schwartz
and others, led to the creation of the
National Prison Project.
The letter t'bld a brutal story. In
the aftermath of a racially integrated,
non-violent inmate work stoppage to
protest racial discrimination, among
-continued on next page

ACLU tradition of volunteer lawyering.
While Director of the NYCLU between 1965 and 1970, Neier also helped
formulate a conceptual framework to
guide the ACLU's expansion into new
civil liberties issues. Along with his Associate Director Ira Glassser and staff attornies Burt Neuborne and Allan Levine.
he formulated what they called the "enclave" theory and the "victim group"
theory. They argued that American society was filled with certain enclaves untouched by the Bill of Rights: the schools,
the military, the mental hospitals and the
prisons. Meanwhile, there were certain
victim groups-the poor, women, homosexuals-who were systematically denied constitutional protections. These
theories gave coherence to the new organizational strategy Neier was developing at NYCLU. In 1970 he was appointed Executive Director of the
ACLU.
Moving upstairs to his new offices,
Neier immediately set out to apply the
ideas and strategies he had developed at
NYCLU to the national level. Within six
weeks of becoming Executive Director
he arranged a llJeeting where ACLU
staff and volunteers presented fifteen
proposals for major grants to executives
of the major private foundations. Out of
this developed the National Prison Project in 1972. With the mutual consent of
both Hirschkop and Schwartz their local
projects were merged into a national
foundation-funded effort.
The vision of human freedom
sparked by the civil rights movement of
the I960s was a compelling one. Fulfillment of that vision, however, has not
been easy. As Osmond Fraenkel, the
ACLU's greatest Supreme Court litigator put it over forty years ago, "It must
not be supposed that it is easy to be
free." The National Prison Project represents one of the most successful ventures in translating a noble idea into sustained and effective work. liliiii

FALL 1987

3

.-----~~-------.~---- -'~'

b

.. '--.~-----

----~------_._-------------------------------

NA OUL

PI

PIlleT

IN THE WORDS OF JUDGES
The Court must now face the difficult
task of fashioning a remedy in this case. To
begin at the area of broadest agreement, the
record here overwhelmingly supports, and
no one seriously disputes, the conclusion that
the present Maximum facility is irremediably
obnoxious to constitutional standards and
that it must be closed, and it is so ordered in
conformance with the timetable in the Order
to be issued in these cases. But this is not
simply a case where, if a new jail is built, all
will be well. As other courts have recognized
in identical situations, a new prison operated
like the present structure would soon lose
whatever momentary advantages accrued.
The barbaric physical conditions at the
ACI are but the ugly and shocking outward
manifestations of a deeper dysfunction, an attitude of cynicism, hopelessness, predatory
selfishness, and callous indifference that appears to infect, to one degree or another, almost everyone who comes in contact with
the ACI and that the present administration,
like its predecessors, appears powerless to
correct or even arrest.

Ramos v. Lamm, 485 F.Supp. 122 (D. Colo.
1980):

As I have stated in my bench ruling,
there is, from the beginning of my assignment to this case to the present time, a
complete and utter distaste for having to
cross that Rubicon which separates the federal government from the state government.
In addition to the cited decisions, the history
which I have recounted shows that this circuit and district have shown great deference
to prison officials, especially toward the Colorado State Penitentiary and the 150 cases
that have been filed from there in the past
three years. Nevertheless, the plaintiffs have
presented substantial, often compelling, evidence of long existing and continuing constitutional violations. Except in fashioning the
necessary relief, deference is no longer
possible.
Thus, defendants say that they have concentrated their efforts and resources on the
places where such would accomplish the
most. Defendants directed these efforts and
resources to minimum security and medium
security institutions, since these institutions
require less resources and successful results
are more easily realized. The decision may
indeed be described as rational and intelligent, but it was made at a cost which cannot
be accepted. The decisions obviously did not
include consideration of the quintessential
question which all republican governments
must address; that is, does the Constitution
permit or prohibit this course of action? The
utilitarian calculus does not provide a means
by which that question may be answered. In-continued on page 6

4

FALL 1987

-continued from previous page
other prison conditions, the Virginia
State Penitentiary was locked down
tight. All visits and communications, including legal visits and legal mail, were
0
stopped. Inmates were confined in 120
cells for weeks. Those who criticized
the harsh conditions, as well as inmates
who sat quietly in adjoining cells, were
teargassed in locked cells.
When we arrived at the Virginia
State Penitentiary, we were denied access initially, but subsequently allowed to
visit the inmates only because judge
Merhige, a federal judge in Richmond, issued a temporary restraining order mandating legal visits.
Upon interviewing the inmates, we
learned about the Warden's special measures to break the body, mind and spirit
of each inmate who asserted his constitutional right to criticize or challenge
prison conditions in court. The inmates
we interviewed became plaintiffs in a series of landmark prisoner rights cases.
The memories of that first prison
visit endure:
• Basically, Robert Landman looked
like a tough Bogart convict. Intellectually
he was the Laurence Tribe of inmate
writ-writers whose practice included almost 2,000 cases. He was a relentless,
committed, and gifted advocate whose
pro se won-lost record was phenomenal.
Landman's "reward" for his indispensable
legal assistance was 266 days in solitary
confinement and 743 days padlocked in
his cell, at least some of which he spent
preparing sophisticated draft amendments to 42 U.S.c. § 1983.
• Leroy Mason was an articulate
black inmate civil rights leader. He had
developed black and white prisoner support for desegregation and other basic
reforms at the Penitentiary. As a result
of an inmate election proposed by the
Warden, he was elected inmate representative after the work stoppage.
Shortly thereafter, he was locked in segregation for almost two years, with long
periods in solitary confinement. His
moving letters to us from solitary confinement gave continuing momentum to
our work.
• The punishment of Calvin Arey,
another successful writ-writer, defined
the lengths the Warden went to in his
war on the law. Arey was locked in solitary confinement on separate occasions
for lengthy periods of time to punish
him for discussing with other inmates a
court order we had obtained from judge
Merhige and for reading aloud from a
letter sent to him by a state senator.
A flood of letters followed our intitial visit to the prison. For the first time
in Virginia, inmates had advocates. The
letters confirmed the litany of horrors
that Landman, Mason and Arey had given

us. Sometimes lyrical, sometimes plain,
sometimes formal, the letters were all
powerful pleas for help. They inspired
within us feelings of anger, commitment,
and helplessness. Most importantly, they
began to define the enormous need for
the National Prison Project.
We were able to prOVide legal help
to some inmates who had common legal
problems; Phil, with help from Nancy
Crisman, Caryl Pines, Peggy Kerry, and
others, filed a series of lawsuits, all of
which were eventually successful.
But we had to refuse help to the
majority of prisoners who asserted unrelated civil rights problems, as well as
valid post-conviction and habeas corpus
claims.
With the creation of the Penal Reform Institute, the letters came from
many states other than Virginia. However, the harder we tried to help, the
more the need for an expanded national
source of legal help became apparent.
In creating the National Prison
Project, its founders assured its institutional integrity by linking it to the civil
rights movement. Prisoner rights owes
its existence as much to the vision of
Martin Luther King as to the prose of
james Madison. The kinship and common
experiences that Phil Hirschkop shared'
with Arthur Kinoy and Bill Kuntsler,
among other civil rights litigators, was
plainly evident in his early prisoner rights
work.
The vital connection between the
civil rights movement and the National
Prison Project was sealed with the hiring
of AI Bronstein. AI's southern civil rights
work is legendary. I had first heard of
him when he represented Richard Sobol,
another civil rights lawyer who supervised me when I was a Law Students
Civil Rights Research Council (LSCRRC)
intern in Louisiana. (AI was able to convince a federal court to enjoin a patently
malicious prosecution against Sobol initiated by the dean of segregation in the
South, Leander Perez).
In short, those of us who were
lucky enough to participate in the early
prisoners' rights litigation learned invaluable lessons. We learned about the civil
rights movement. We learned how to
draft emergency pleadings in the back of
a (usually speeding) car, and came to understand that imagination, seasoned with
chutzpah, is an indispensible quality of
civil rights lawyers.
Most importantly, we discovered in
our clients that endless reserve of human dignity, strength and spirit that
would motivate us, and animate our legal
work for years to come. III

'I

r

Prisoners' Rights Lawyers in VA
and NY Merge to Form NPP
Herman Schwartz
"You've come a long way, baby"
would be an apt description for the National Prison Project today, were it not
for the line's crudely sexist overtones.
When I first started the ACLU Prison
Project in 1969, neither I nor Ed Koren,
who helped me right from the start,
thought it would become the massive
force in the area that it is today. It may
be interesting to provide some reminiscences of how it all began.
The story really begins in the mid
1960s, when I was a member of a citizen-legislator panel in New York State
that looked into prison conditions. As a
lawyer, law professor, and an active civil
libertarian, I was appalled at the total absence of any check on arbitrariness by
authorities in the American prison system, as I saw it in New York. Prisoners
had no rights at all in the courts, which
we had already begun to see as our primary protection for individual liberties
and rights.
In 1967, the Second Circuit Court
of Appeals came down with the landmark decision of Wright v. McMann, in
which the court abandoned the traditional "hands-off' doctrine. I thought
then that it might be a good idea to try
to bring the rule of law into New York
prisons by challenging prison conditions
in court.
After spending a year in academic
solitude in Ann Arbor, Michigan, I contacted Aryeh Neier, then Executive Director of the New York Civil Liberties
Union, with whom I had worked very
closely on police brutality. civil rights
and wiretap problems, and suggested it
to him. He was immediately enthusiastic
and that summer we managed to get a
small grant from the Norman Fund.
Shortly thereafter Aryeh became Executive Director of the American Civil liberties Union. and we moved the project
over to the ACLU.
There were only a few of us in the
prisoners' rights movement at this time:
William Hellerstein of the New York
City Legal Aid Society, Stanley Bass of
the NAACP Legal Defense & Education
Fund, Inc. and a handful of others scattered around the country. Hellerstein,
Bass and I decided we would coordinate
our efforts. I also decided to push the

Herman Schwartz is Professor of Law at
American University's Washington College
of Law. He has been active in civil rights
and other public interest issues for many
years.

cause not only with litigation, but in
writing and community organizing.
Ed Koren, who had been a student
of mine, and was working as an ACLU
staff attorney, offered to work with me.
We had almost no money at this time
and Ed, characteristically, offered to
work for almost nothing in the hope
that sooner or later some money would
come in. Happily, the Playboy Foundation soon came through, and Ed was
able to move above the bread and water
stage to have an occasional bit of margarine for the bread.
We filed our first suit, Jackson v.
McGinnis, in the Western District of
New York. in the fall of 1969, case number 69-435. It was not finally resolvedand this was an omen of some of the
problems we would face--until sometime in 1978, when attorneys' fees were
awarded to the National Prison Project.
The work began intensively during
the summer of 1970 and in December
1970. we had a major victory. In Carter
v. McGinnis, the Federal District Court
in Western New York ruled that the
Warden could not arbitrarily confine inmates in segregation for 60 days after
they had been transferred from another
prison simply because he wanted to. Although we did not realize it at the time.
this decision shocked many prison officials and guards. I think it was the first
time that a New York disciplinary or security measure had been challenged in
court. I recall that Ed and I went out
and bought a couple of fancy ties to
celebrate that victory.
At this time also Phil Hirschkop
was performing Iitigative miracles with
the ACLU in Northern Virginia, and
won a suit challenging conditions
throughout the Virginia prison system.

Landman v. Royster. 333 F.Supp. 621
(E.D.Va. 1971).
During the '69-70 year we filed
more cases and then, in September
1971, the Attica uprising erupted. That
transformed the prison rights situation.
It brought home to the American public,
at least for a while, as nothing else had,
the horror of 'prison life and the desperation of the prisoners. For a while we
thought that that dreadful tragedy. in
which 43 people died, might do some
real good. We were wrong. Although
some changes followed in the immediate
aftermath, as we all know, the combination of overcrowding. public indifference, and the Supreme Court's turning
its back on prisoners, have made it much
harder not only to achieve improvements, but to maintain those we already
have gotten.
In 1972 Aryeh suggested that Phil
and I merge our projects and put the
new organization under the direction of
Alvin Bronstein, a civil rights lawyer
working in Jackson, Missisippi, and New
Orleans, Louisiana, who was returning
North. Both Phil and I readily acceded
to this. We both had come to realize (I
certainly had) that the problems far exceeded the very limited resources that I"
at least, as a law professor working with
Ed and a few students, could ever hope
to deal with. The National Prison Project was created in Washington, with Phil
and myself as co-chairmen and we
helped put together a Steering
Committee.
The rest, as the cliche goes, is history. Under able administration the project took off. It gathered support from
foundations and it is obviously now the
preeminent prison rights organization in
the country, and probably in the world. I
am proud to have contributed something
to it and especially pleased that Ed Koren, who was with me at the creation,
remains a vitally important participant in
the effort to inject something of the
rule of law in what future historians
must record as a barbarous system. II

Remembering Attica
Haywood Burns
Last year, when my teenage son finished his personal statement for one of
those many college application forms, I
was surprised to read that he counted as

Haywood Burns, Dean of CUNY Law
School at Queens College, was the coordinator of the Attica Brothers Defense Committee, a founder of the National Conference of Black Lawyers and is a member of
the Steering Committee of the NPP.

one of his most important formative experiences those days when, as a small
child, he would sit upon the shoulders of
a former Attica prisoner and be carried
through the streets of Buffalo, New
York. This was in the midst of massive
street demonstrations as the crowd
chanted "Attica means-fight back. Attica
means-fight back."
I probably should not have been
-continued on next page
FALL 1987

5

IN THE

WORDS OF JUDGES

stead of giving proper consideration to the
rights of individuals, the decision was harnessed to a balance sheet. The results of
this process are there for everyone to see.
Indeed, if the Colorado Department of
Corrections were Dorian Gray, the Canon
Correctional Facility would be its portrait.
I have always entertained the somewhat
wistful notion that the public interest is best
served by dedicated observance to the rule
of law on the part of government as well as
individuals. Unless and until reversed by a
higher court, the rules of law and orders implementing them remain in full force and effect and it thus seems that adherence best
serves the public interest. We are all aware
of the recent horrible tragedy at the state
prison in New Mexico. Compared with the
estimated cost of rebuilding there, the costs
involved in correcting the unconstitutional
conditions at Old Max are a pittance. If conditions at Old Max continue unabated, I cannot say with confidence that such an occurrence there is unlikely. It has happened
before. I hesitate even to mention the possibility, but this motion for stay reqUires me to
do so.

Palmigiano v. Garrahy, 707 F.2d 636 (1983):
We note that the out-of-state attorneys
in question, who were associated with a public interest firm specializing in prison matters,
had unique competence in the subject matter
of this litigation. They brought to the case
experience and resources not easily duplicated locally.

Ramos v. Lamm, 539 F.Supp. 730 (1982):
In March, 1978 Mr. Knowles became the
AssoCiate Director of the National Prison
Project of the American Civil Liberties Union
Foundation. . .. He particpated throughout
the trial and post-trial proceedings in this
case. A general conclusion regarding his excellent ability and integrity is not sufficient. I
must point out that during the entire time I
have been conne&ted with the profession of
law as student, practitioner and judge I have
never observed a lawyer who was more talented or accomplished in the art of cross-examination. Mr. Knowles undertook the crossexamination of most of the defendant's expert witnesses with devastating effect.

c.A. No. 81-0853-R (1984):
The Court finds that these attorneys
from the ACLU National Prison Project are
of the highest caliber. We have had them
here before. They have done much to help
the corrections system. I remember cases in
which they walked away with the most de
minimus fee, including one case in which they
had obtained a $500,000 settlement for their
clients. For, them and their clients to be
treated in this way and singled out, I think, is
just unconscionable.
Brown v. Landon,

6

FALL 1987

-continued from previous page
surprised. Experiencing the Attica rebellion and its aftermath in whatever form
was an indelible experience for almost
everyone. It certainly was for me. Attica
was a searing sword slicing into the
American consciousness, cleaving all time
for those involved with prison work,
into "Before Attica" and "After Attica."
A watershed. A new place name to add
to our lexicon of national shame and
barbarity, alongside place names like
Wounded Knee and My Lai.
"Attica" means, to many, the rebellion of prisoners at New York's Attica
Prison September 9-1 3, 1971, which
ended in a bloody assault by the State
Police, National Guard and correctional
officers. State forces gassed and then
fired upon inmates who had no guns.
They fired automatic weapons, deer rifles, and shotguns loaded with dum-dum
bullets, whose soft lead spread upon
contact to assure maximum damage to
human flesh and bone; weapons which, in
time of war, would be outlawed by the
Geneva Convention. They killed and
wounded inmates and hostage guards
alike. Forty-three persons lost their lives
as a result of the rebellion. Eighty others
were wounded by gunfire during the 15minute re-taking of the prison that rainy
September morning. Americans had
been involved in bloodier one-day encounters before--but not since the 19th
century massacres of Native American
people.

The horror of the re-taking was
compounded by the brutality of
the aftermath.
The horror of the re-taking was
compounded by the brutality of the
aftermath. By the hundreds, prisoners
were stripped naked and made to crawl
through a field of mud and broken glass,
and then forced to run through a gauntlet of corrections officers as they were
beaten Viciously and showered with the
most vile of racial epithets. Individual
prisoners were taken away for torture.
Days later, as part of the first contingent of a group of lawyers who overcame prison officials' opposition and
gained access to the prison, I could still
see on the bare back of the first inmate
I interviewed the unmistakably clear outline of a club.
"Attica" also means, for many, the
prosecution that eventually followed in
the wake of the rebellion. This was a
full-scale judicial assault that was
mounted as a complement to the physical assault which had taken place in 0yard. When it became clear that the
state had been responsible for all the
deaths that occurred in the September
13th re-taking of the prison and that the
stories of inmate atrocities had been

gross fabrications, the prosecutions were
a convenient and useful deflection of attention away from the State's culpability.
Members of the assault force were not
indicted for their criminal actions. Millions of dollars were prOVided for prosecution of prisoners, and the state eventually obtained more than 40 indictments
against a total of 62 prisoners for almost
1,300 crimes carrying the collective possibility of tens of thousands of years in
prison.
These prosecutions set the stage
for a major e~gagement of contending
forces as a defense effort sprung up that
attracted varied and far-flung supporters
of the prisoners' cause.
"Attica," to many, is also a parable
or symbol of American prisons. It was
clear, upon examination, that the volatile
mix of conditions present at Attica was
present at prisons throughout the land.
Attica was just an archetype of the pathology of prisons at that time. It happened in a small rural community in upstate New York, but so reflective was
Attica of the situation endemic to
American correctional facilities, it could
have happened anywhere. As the New
York State Special Commission on Attica (the "McKay Commission"), formed
to investigate the rebellion and its aftermath, concluded, "Attica is every prison;
and every prison is Attica."
"Attica" as rebellion, as judicial assault, as parable has had, and continues
to have, a tremendous impact.
The rebellion served as a source of
education to so many about the realities
of the American prison system. It revealed the conditions in all their stark,
ugly and unforgivable inhumanity. The
takeover of part of the prison by prisoners had come only as a last resort
after the unsuccessful exhaustion of a
wide array of administrative routes to
unresponsive officials. When the prisoners' demands were made, apart from
one or two pipe dreaming flights of
fancy which might have been expected
under the circumstances, such as transportation for any prisoner who desired
to a non-imperialistic country, they were
asking no more than what should have
been expected by way of elemental human needs. Demands for adequate nutrition, opportunity for personal hygiene,
religious freedom and the like were not
only far from radical, they were, for the
most part, already required by international minimal standards on the treatment of prisoners.
The response to the rebellion
served as a further education, prOViding
shocking insight into just how far the
State was prepared to go in inflicting
force and violence upon a prison population. For all of those who watched
tensely over the several days of the rebellion leading up to the re-taking, hop-

ATTICA

ing and believing (as I hoped and believed) that the police and corrections
officials would never go as far as they
eventually did, the events of September
13, 1971 were a sad and startling revelation. As such, Attica also served as an
extraordinary galvanizer of people who
saw American prisons and understood
the need for change.
The prosecutions served as a
source of litigation and inspiration. The
defense apparatus, consisting mainly of
volunteers who often shared !ittle except a revulsion of the treatment of the
imprisoned and a fierce sense of justice,
not only took on the awesome tasks of
organizing to defend the criminal indictments and bUilding a popular movement
in support of the legal defense work, but
went on the offensive in other ways.
They brought civil actions attacking jail
and prison conditions, and sought damages for Attica prisoners killed or injured in the rebellion. The damage actions remain unresolved and in
contention to this day.

It revealed the conditions in all
their stark, ugly and unforgivable
inhumanity.
In court one day I heard an Attica
prisoner defendant, Shango Bahati Kakawana, appearing pro se, telling the presiding judge that the State was so powerful and its resources so great that it
was a "David and Goliath" situation.
This was very true, but the network of Attica prisoner supporters that
was forged was ultimately able, through
victories in court and through exposing
the improper selective enforcement of
the law by the Special Prosecution, to
win or have dismissed almost every Attica case. It was David and Goliath, but.
as in the original, David won.
Those of little power banded together, using the courts, popular education and mass organizing to defeat the
powerful. It was a great inspiration to
many, and bonded many of the Attica
alumni for life, as they moved off in dif-

REMEMBERED
Above left, Prisoners
raise hands in solidarity
during negotiation sessions with Commissioner Oswald. Above,
state police march
through cellblocks
trying to regain control.
Riots broke out at 9:28
a.m.-note clock
stopped at that time
below railing. Right, police on catwalk and in
the yard line up inmates; trench was dug
by inmates when they
controlled the yard.

ferent directions to apply these lessons
in other arenas where the poor, despised and dispossessed struggled to
wrest some small measure of dignity and
decency from the wretchedness of their
existence. Attica, the parable gave birth
to a wider general understanding of the
need for institutional innovation and
structural changes in order that the
problems of which Attica was emblematic could be addressed systemically.
There is a direct linear connection between the Attica Rebellion and a host of
efforts calculated to reform and improve
American prison conditions-legislation,
funded research, development of model
standards, and so forth.
Although, obViously, the Attica rebellion was not the sole cause of this impetus towards systemic, structural and
institutional approaches, it was its
catalyst.
It was in this climate that prisoners'
rights projects were developed by bar
groups, legal aid societies, and law
schools. It was out of this immediate
post-Attica period that the National
Prison Project of the American Civil Uberties Union was formed with some of
the key Attica defense participants, such
as Professor Herman Schwartz and Ed-

ward Koren, playing a crucial role from
its early development, right up to and
including the present moment. With an
excellent staff and the outstanding leadership of AI Bronstein, the National
Prison Project has prOVided the leadership and quality work to address the issues present in Attica the parable wherever they are found.
This is especially critical in a time
when much of the fervor of the 70s has
dissipated. Now, more than ever, the
imperative for change Attica represents
must be carried forward. The National
Prison Project is needed now more than
ever. Great strides, in some ways, have
been made in the 16 years since Attica
and the I5 years since the formation of
the National Prison Project. Unfortunately, not nearly enough, however, and
all too often those that have been made
are largely cosmetic. We are still warehousing human beings, and are still plagued by racism, overcrowding, degrading, dehumanizing conditions. As a
society, as it relates to our prisons, we
are still in battle for the right to call
ourselves truly "civilized." It is only at
our great peril that we allow ourselves
to forget what Attica means. IIIIIl

FALL 1987

7

b

IlONA!

PH N
PH JECl
IN THE

WORDS

THE ALABAMA CASE

12 Years After James v. Wallace
Matthew L Myers

OF JUDGES

Pugh v. Locke, 406 F.Supp. 318 (1976):
An oral order enjoining the use of isolation and segregation cells which do not meet
minimum standards was issued by the Court
at the conclusion of the trial in these cases.
The indescribable conditions in the isolation
cells required immediate action to protect
inmates from any further torture by confinement in those cells. As many as six inmates
were packed in four foot by eight foot cells
with no beds, no lights, no running water,
and a hole in the floor for a toilet which
could only be flushed from the outside. The
infamous Draper "doghouse" is a separate
building, locked from the outside, with no
guard stationed inside. Inmates in punitive
isolation received only one meal per day, frequently without utensils. They were permitted no exercise or reading material and
could shower only every I I days.
Canter;no and the U.S. v. Wilson, (C.A. No.
80-0545) (Memorandum Opinion, Jan. 9,
1985):

Having observed Ms. Wright's skill
throughout the Canter;no litigation, the
Court found that she demonstrated an unusual and unique ability to grasp the issues
and to cross-examine witnesses. Indeed, Ms.
Wright's overall litigation skills throughout
the trial placed her among the top Iitigators
that have appeared before this court.
Canter;no v. Wilson, 546 F.Supp. 174 (1982):
The Court has been guided by a general
principle in this case: male and female prisoners must be treated equally unless there is
a substantial reason which requires a distinction to be made. In the areas of privileges
and opportunities for work, vocational education, training, and community release programs, this standard is not being met in Kentucky. Those issues have been the focus of
this lawsuit and as a result, this opinion has
necessarily focused on the problems which
exist at KCIW.
The Court"has not been unmindful,
however, of the sincerity of the staff and the
effort which has been made to keep KCIW
clean and in good repair in spite of the difficulties which come with over-population and
age. These factors, while commendable, cannot be a defense to the Constitutional deficiencies which were proved at trial. The
Court breaks no new ground in the ruling
entered today. Virtually every area has been
addressed by other courts and the existing
precedent in each area is indistinguishable
from the facts demonstrated in the record in
this case. The Court feels bound to the rules
of law established by the cases cited in the
conclusions of law.

It was early July 1975, and Judge
Frank M. Johnson Jr. had scheduled the
trial of James v. Wallace to begin on August 20th. We had asked seven nationally known experts to testify at trial
about the conditions of confinement in
the Alabama prison system and their impact on the prisoners confined there.
Carl Clements, Ph.D., a psychologist
from the University of Alabama, was
scheduled to take the first and most
comprehensive of the expert tours. It
was also the first in-depth tour of the
Alabama prison system for the lawyers
involved in the case.
As we approached the Atmore
Prison Farm (later its name was changed
to the G.K. Fountain Correctional Center) in Southern Alabama, we saw a
white man on a horse with a shotgun in
his arms pointed at a small group of
black men who were chained together,
trudging out into a large farm field.
Later, we discovered that Virtually all of
the guards were white men from rural
Alabama, that the vast majority of the
prisoners were black from urban Alabama, and that white prisoners were
rarely assigned to work in the farm
fields.

The dormitories were so
dangerous that no guard dared
venture inside.
After two solid days of inspecting
every corner of the Atmore Prison
Farm and the nearby Holman Maximum
Security Facility in sweltering heat, Ralph
Knowles, Dr. Clements, and I thought
that nothing new that we saw could
have an impact on us. For two days we
had been surrounded by prisoners
crowded into filthy, unbearably hot, unsanitary dormitories so unsafe that the
prison guards were afraid to go inside.
Beds were stretched six across and
stacked three high, only inches apart,
and inches from exposed electrical wires
hanging down from sockets where lights
had once appeared. Only a few feet
from this living area were leaking, nonfunctioning bathrooms with one or at
most two functioning toilets for two to
three hundred men from which smells
emanated which defied description.
Everywhere we went we were engulfed

Matt Myers, a partner with Asbill, Junkin,
Myers and Buffone, was a staff lawyer and
the Chief Staff Counsel of the NPP and is
a member of the NPP Steering Committee.
8

FALL 1987

We tho,ught nothing could be
worse than what we had already
seen. We were wrong.
in a sea of humanity of men who endured unrele'hting idleness, a constant
fear of being raped or stabbed and virtually no hope that these conditions or
their lives would ever improve.
We thought nothing could be
worse than what we had already seen.
We were wrong. I will never forget the
fear we saw the next morning in the
eyes of the young men-boys is a more
apt description-crammed into the socalled modern classification center at Mt.
Meigs, Alabama in conditions even more
crowded than those we had seen at Atmore and Holman. Every available inch
of floor space was occupied by prisoners
waiting to be shipped to one of the
other prisons. Many were forced to
sleep beneath cracked and broken toilets
and urinals which often leaked or overflowed because they no longer worked
properly.
It didn't take long to understand
what caused the fear. The dormitories
were so dangerous that no guard dared
venture inside. Even during our tour the
warden warned us repeatedly that we
were entering at our own risk. We later
heard story after story of prisoners
being raped and brutalized, including one
retarded teenaged prisoner with the I.Q.
of a five-year old who was raped five
times the first night he was at Mt. Meigs
and brutally beaten the second night,
after his pleas for help to the warden
fell on deaf ears.
From Mt. Meigs we went to the
Draper Correctional Center. Nothing
we saw previously had prepared us for
what we later encountered at Draper. It
is hard to describe the reaction each of
us felt as we climbed up to one second
floor dormitory to find dozens upon
dozens of old, helpless men, many in
wheelchairs, incontinent or bedridden,
unable to care for themselves and
jammed into squalid, dilapidated living
quarters which could only be described
as a human death trap. But we had not
yet witnessed the worst.
We had heard rumors of a segregation unit at Draper known as the "doghouse." Several hundred yards from the
main prison facility, we found the infamous "doghouse." It was a concrete
building with no windows and a solid
front door with eight cells, each about

..

the size of a small door. This windowless
concrete building and the cells in it had
no lights, no ventilation, no toilets, no
furniture, no beds, no running water,
and no sinks or showers. In each cell
there was a single hole in the concrete
floor for the men to use in place of a
toilet. There was no guard in or near
the building when we arrived. Prisoners
in the doghouse received one meal a
day, but were allowed no utensils. They
were not permitted to leave their cell
for any purpose. Two of the cells were
empty, while each of the other four-foot
by eight-foot cells contained either five
or six prisoners. There wasn't room for
them all to sit on the floor at the same
time, let alone sleep.
What heinous act had these men
committed to be condemned to such
barbaric conditions? Several were there
because they had been late to work.
Several others were there for "talking
back" to a prison guard. On the day we
visited none were there for having committed an act of violence.
The risk of recounting these observations is that they give the impression
that the Alabama prison system in 1975
was truly different from any other
prison system in the United States. It
wasn't. The lesson of the last twelve
years is that while the conditions we
found in Alabama were more visible than
elsewhere, they were not qualitatively
different. What we saw in Alabama in
I975-the overcrowding, the racial disparity and animosity between the guard
staff and the prisoners, the unrelenting
idleness, the constant fear of being raped
or stabbed, the justifiable lack of hope,
and the total irrationality of the treatment-has been seen in prison system
after prison system all over the country.
James v. Wallace, now known as
Pugh v. Locke, 406 F. Supp. 318
(M.D.Ala. 1976) was the first conditions
of confinement case in which the American Civil Liberties Union Foundation's
National Prison Project was involved. In
many respects, James v. Wallace has
served as the most significant catalyst for
setting the agenda for the National
Prison Project over the last decade. As
much as any other case, it has prompted
conditions of confinement cases in unprecedented numbers with unprecedented success to be filed by prisoners'
rights lawyers all over the country.
James v. Wallace was not, however,
the first major conditions of confinement
case. Five years earlier the Federal
Court in Arkansas had found and condemned barbaric conditions in Arkansas'
two main prisons. Holt v. Sarver, 309 F.
Supp. 362 (E.D.Ark. 1970), aff'd 442
F.2d 304 (8th Cir. 1971). Three years
earlier the federal court in Mississippi
had found that the living conditions at

Prisoners going to work on farm detail at G.K. Fountain Correctional Center in Alabama near the
time the NPP lawsuit was filed in 1975.

of prison life. It was the first time a federal judge had set down a comprehensive set of minimum constitutional standards that had to be maintained for the
operation of a state prison system. It
was the first prison decision to recognize the need for an enforcement and
compliance mechanism from the very
Parchman, the state's largest institution,
beginning. It was the first decision to orwere "unfit for human habitation" and
der a state to reclassify all prisoners
that its medical staff and medical facilities who could and should be transferred to
were totally inadequate. Gates v. Collier,
alternative, less restrictive facilities. It
349 F. Supp. 881 (N.D.Miss. 1972), aff'd was the first decision to order a state to
50 I F.2d 1291 (5th Cir. 1974). Similarly, provide each prisoner with work and
deplorable conditions had been exposed
meaningful educational and vocational
in Virginia's largest penitentiary in Landtraining opportunities. Finally, and perman v. Royster, 333 F.Supp. 621 (E.D.Va. haps most importantly, it was the first
decision to recognize that a state vio1971).
Nonetheless, James v. Wallace was
lates a prisoner's Eighth Amendment
perceived differently throughout the na- protection against cruel and unusual puntion and had a different impact. judge
ishment if it houses prisoners in an enviFrank M. johnson jr.'s january 13, 1976
ronment that not only makes it impossidecision was the lead story on all three
ble for inmates to rehabilitate
network newscasts. judge johnson's vivid themselves, but also makes debilitation
description of the "rampant violence and and deterioration inevitable.
jungle atmosphere" in the Alabama
The biggest difference between
prison system captured the nation's atJames v. Wallace and earlier conditions
tention. Newsweek and Time magazines
of confinement cases, however, may be
both declared it "the most sweeping
not in what judge johnson wrote, but in
prison decision" ever issued. The Wall
the hopes he engendered. This was a
Street Journal called the decision
prison decision that for the first time
"unprecedented."
created, at least, the hope that the
Why did this decision invoke this
courts could playa role in bringing
reaction? In a number of critical reabout a significant, fundamental change in
spects, James v. Wallace was different. It how prisoners are treated. judge johnwas the first decision to deal with an en- son went beyond the narrow but importire state prison system. It was the first
tant issues such as the adequacy of medidecision which dealt with every aspect
-continued on next page

Judge Johnson's vivid description of
the "rampant violence and jungle
atmosphere" in the Alabama
prison system captured the
nation's attention.

FALL 1987
. . . . ._ _

~.lIIm'~._ _ .,.....__ _~

9
_

..

L

IN THE

WORDS

OF JUDGES

The inferiorty of programs and discrimination in the area of privileges which were
demonstrated at trial are not always the result of conscious sex discrimination. They are
often attributable to oversight, omission, and
traditional views of female offenders which
have not kept pace with the changing inmate
population. The discriminatory treatment
which has resulted must be remedied. An appropriate order will be entered.

Morales v. Schmidt, 340 F.Supp. 544 (W.O.
Wis. 1972):
I am persuaded that the institution of
prison probably must end. In many respects it
is as intolerable within the United States as
was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some
standards, and probably less rational. The immediate question for the courts, while prisons continue to exist, is how to respond to
them in terms of constitutional litigation:
whether to support the institution but to
shape it, or to end it, or to be neutral with
respect to its continued existence.

Proclinier v. Martinez, 416 U.S. 426 (1973):
When the prison gates slam behind an
inmate, he does not lose his human quality;
his mind does not become closed to ideas;
his intellect does not cease to feed on a free
and open interchange of opinions; his yearning for self-respect does not end; nor is his
quest for self-realization concluded. If anything, the needs for identity and self-respect
are more compelling in the dehumanizing
prison environment. Whether an O. Henry
writing his short stories in a jail cell or a
frightened young inmate writing his family, a
prisoner needs a medium for self-expression.
It is the role of the First Amendment and
this Court to protect those precious personal rights by which we satisfy such basic
yearnings of the human spirit. •

..

10

Two levels of dormitory housing at Alabama's Draper Correctional Center in 1975.

cation system and a medical and mental
health care system totally incapable of
cal care or the conditions in a particular
keeping up with demand. If anything,
segregation unit, on which previous
Judge Raymond J. Pettine's decision in
cases had primarily focused and instead
Palmigiano v. Garrahy was more powerful
discussed many of the most insidious,
Widespread, destructive aspects of prison and more decisive than the decision in
James v. Wallace. He was appalled by
life.
Today, conditions in Alabama's pris- what he had seen and it showed. To fmplement his decision, Judge Pettine apons are far better than anyone thought
pointed a master and gave him extraorthey could be when James v. Wallace
dinary powers. To demonstrate his
was filed, but they are far from what
attitude about the importance of complimany hoped they would become when
ance, he and the master held close to a
James v. Wallace was decided. The prisdozen compliance hearings in the followons are cleaner, less crowded and less
ing two years at which he cajoled,
violent. The infamous "doghouse" has
threatened and otherwise did what he
been torn down and prisoners in segrecould to keep the state under constant
gation are not routinely deprived of
basic essentials. New jobs, educational
One of 350 geriatric prisoners at Draper Corprograms and vocational training opporrectional Center in Alabama in 1975. This eltunities have been added. Decent liVing
derly man was confined to a wheelchair and
conditions for aged and infirm prisoners
housed in a second story dormitory with only
have replaced the death trap. Many of
one stairway for egress.
the experts who testified at the original
trial have revisited the prison system
during the compliance process and most
have been impressed by the change. Alabama's prisons are no longer "barbaric,"
but they are not models of correctional
reform. They have become more humane and less destructive, but no more
than that.
In many respects, James v. Wallace
had its greatest effect outside of Alabama. The ink was barely dry on Judge
johnson's decision when Palmigiano v.
Garrahy, 443 F.Supp. 956 (D.R.1. 1977)
demonstrated that the problems exposed by Judge Johnson in Alabama were
not unique, nor were they confined to
the South. Rhode Island didn't have a
doghouse, but it had rampant violence,
unrelenting idleness, devastating overcrowding, physical conditions which
could only be described as unfit for human habitation, a non-functioning c1assifi-continued from previous page

FALL 1987

_1

lIII1B. . B . . . . .

11

The infamous "doghouse" at Draper Correctional Center in Alabama. "This windowless concrete building and the cells in it had no lights, no ventilation, no toilets, no furniture, no beds, no running water, and no sinks or showers."

pressure to bring about meaningful
change.
Alabama and Rhode Island represented the tip of the iceberg. Over the
next ten years well over two thirds of
this nation's prison systems came under
judicial scrutiny and court orders condemning various aspects of the conditions of confinement were issued with
disturbing regularity.

The big conditions of confinement
cases became the staples of the
Prison Project
James v. Wallace also had a very
substantial impact on the agenda of the
National Prison Project. The big conditions of confinement case became the
staple of the Prison Project. Cases
against the entire state prison systems of
Tennessee, Colorado, New Mexico and

The "Chinese toilet" or hole in the floor in a
Draper doghouse cell.

-continued on next page

Counsel for Alabama seemed peculiarly inept: he was putting to me by
way of cross-examination the proposition tbat, as confirmed criminals,
the aged and infirm in the appalling
prison dormitories deserved the
conditions in which they were held.
He didn't deny the brutalities, the
rapes, the filth; he implied, so what?
He took particular issue with my
earlier suggestion that such conditions were "unseemly." I offered as
synonyms "uncivilized," "unconstitutional,"; and then the right phrase
came to me: "Young man,. is this
how you would have your father
treated, criminal or nod"
My memory, generous no doubt
to myself, tells me that he sat down.

The 4' x 8' cell in the "doghouse" which
housed six prisoners in almost total darkness.
Draper Correctional Center, Alabama, 1975.

Alvin J. Bronstein (I.) and George P. Taylor (r.J
being interviewed by Carl Stern, NBC TV, outside the federal courthouse in Montgomery, Alabama at the beginning of the August 1975
trial in the Alabama prison case.

~

n
II

-Norval Morris

Norval Morris, Kreeger Professor of Law,
University of Chicago Law School, was a
plaintiffs' witness in the Alabama prison
case.
.

...................

FALL 1987

II

. .I1Ei-I1Ei-_ _

IElIRII_~~l!i!JI!"I!"I!w

Of the 68 total staff members of
the National Prison Project since
1972, not including interns and law
clerks, there have been 44 females, 24
males, 45 whites, 23 minorities, I I exoffenders, and 24 lawyers. There have
been over I 10 interns and law clerks.

Who Are These Lawyers?
Almost all of the lawyers have
come from backgrounds in civil rights,
legal services, public defenders and, since
the Reagan administration, "refugees"
from the Civil Rights Division of the Department of Justice. Those who have left
the Project have gone mainly into public
interest law firms, public defender offices and law school teaching.
Where Was Bronstein Before NPP?
Project Director Alvin J. Bronstein
was in private practice in New York before becoming Chief Staff Counsel of the
Lawyers' Constitutional Defense Committee from 1964 to 1968 in Jackson,
Mississippi. He litigated civil rights cases
during that time in Mississippi, Alabama,
and Louisiana, and represented the Mississippi Freedom Democratic Party
(MFDP), the Congress of Racial Equality
(CORE), the Student Nonviolent Coordinating Committee (SNCC), and the
Southern Christian Leadership Conference (SCLC). In 1968 he became a Fellow at the Institute of Politics, Kennedy
School of Government, and from 1969
to 1971 he was the Associate Director
of the Institute of Politics. From 1971 to
1972, he was a partner in the public interest law firm of Elie, Bronstein, Strickler, and Dennis. In June of 1972, he
came to Washington to become the first
Director of the National Prison
Project. III...

Maine all followed shortly thereafter for
the Prison Project's attorneys. Once
filed, these cases took years to complete. Often the initial victory was just
the beginning because compliance went
on for years.
These cases demonstrated that the
type of conditions that prompted Judge
Johnson in Alabama and Judge Pettine in
Rhode Island to act could be found in
prison systems in all parts of the country. No geographic region was immune.
James v. Wallace set off what turned
into a tidal wave of suits challenging the
very essence of the conditions in which
EXPERT WITNESSES

Expanding Their Role in Prison
Cases
Claudia Wright
In the Beginning, there was Bill Nagel. And John Conrad, Ted Gordon, and
Dr. Lambert King. In the beginning of
big prison litigation, these experts testified for plaintiffs in cases that laid the
foundation for institutional reform. Their
role in educating courts, and in guiding
concerned judges to exercise the power
to impose requirements for humane
conditions of confinement, was vital. T0day that role has expanded to every
stage of the litigation process, and is of
even more critical importance.
Before 1974, most prison cases
were specialized, dealing with First
Amendment rights, procedural due process rights, or other discrete issues.
With the development of the totality of
conditions theory in the Alabama case I ,
expert witnesses were called upon not
only to fulfill their traditional role of observing and describing conditions to the
court, but also to explain the significance
of conditions in regard to long-term debilitation of prisoners, and even more
importantly to find and propose remedies for these conditions. Modern classification systems that are taken for
granted today were generated by the
Alabama prison litigation. The development and acceptance of uniform standards for the operation of prisons also
began in the early cases. 2 It was the expert witnesses who taught courts the
value of uniform standards in the implementation of meaningful reform.
Expert witnesses are of course still
necessary to testify in court on an ever

Claudia Wright is a senior staff attorney
with the National Prison Project
Prison Project Director Alvin J. Bronstein and

staff attorney Adjoa Aiyetoro.

12

FALL 1987

prisoners throughout America were
being housed.
Have these cases made a difference?
Where these suits have been brought,
the most barbaric and inhumane conditions have been eliminated. On the
other hand, budgetary restrictions, the
get-tough attitude with criminals which
has dominated our criminal justice system for the last decade and the concomitant overwhelming rise in the prison
population have prevented these cases
from bringing about the fundamental
change tha\ many considered
possible. III

'Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala 1976).
2See, e.g., Palmigiano v. Garrahy, 443 F.Supp. 956
(D.R.1. 1977).

Modern classification systems that
are taken for granted today were
generated by the Alabama
litigation.
widening range of issues, including such
erudite topics as nutrition 3,
architecture'4, and behavior modification
techniquesS when prison cases go to
trial. But the role of experts has become
more complex as prison litigation has
become more difficult. Lawyers must be
more careful and more thorough in their
initial preparations before filing cases in
order to conform with recent contractions of the law. 6 The use of expert witnesses has become essential to investigation, the framing of issues, and to
analysis of the likelihood of success before a complaint is filed. Experts also are
now involved in all phases of pretrial
preparation. Their presence is invaluable
when depositions are taken or when interrogatories are drafted. They assist in
the review and analysis of documents,
selection of exhibits, and preparation of
cross-examination.
The world of prison litigation is
very different now, even from just ten
years ago. Lawyers are anxious, with
good cause, not only because the Reagan
courts have made success much more
difficult, but because of the fear that
even the most successful district court
3Black v. Ricketts, CIY 84-111 PHX-CAM (consent
decree June 1985).
'Ramos v. Lamm, 485 F.Supp. 122 (D. Colo. 1980).
SCanterino v. Wilson, 546 F.Supp. 174 (W.D.Ky.
1982).
'See, e.g., Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.
1982); Rhodes v. Chapman, 452 U.S. 337 (1981).

I
(
.I

..

orders may not be sustained on appeal.
Rights that were hard won years ago
can be wiped out with the stroke of a
Supreme Court pen, so that a case may
take on significance much broader than
its own merits. Because of these factors,
lawyers now must aggressively and creatively pursue settlement agreements, and
experts are extremely useful in this
effort.
Carefully chosen expert witnesses,
particularly corrections experts who enjoy the respect of their peers, can often
informally play the role of a mediator in
pre-trial settlement attempts. In
Arizona7, we used a structured form of
this concept in our settlement effort. By
agreement, the plaintiffs chose Gordon
Kamka, the defendants chose Allen Ault,
and they then chose Allen Breed as the
third member of an expert panel. This
panel then set about the task of preparing a settlement proposal. Although the
panel's proposal was not initially accepted because of political reasons, the
proposal eventually formed the framework for an agreement which was
reached midway through trial. s The benefits of an expert-prepared settlement
proposal, especially when one or more
of those experts may return as monitors
of compliance, are enormous.
In some situations defendants have
balked at the suggestion of the appointment of a special master to report on
compliance as a condition of settlement.
Administrators have been more amenable when that role was assigned to an
expert who would be called an auditor,
a monitor or a technical assistant, and
who would be chosen jointly by the parties. Allen Breed and Bill Nagel have
performed that function with great
success. 9
The utility of panels of experts to
inform the court and to monitor compliance was foreseen as early as 1975. In
Costello v. Wainwright, the late, legendary District Court Judge Charles R.
Scott of the Middle District of Florida
appointed a panel of medical doctors to
conduct a corrl'prehensive study of health
services in all correctional institutions in
Florida, to report their findings to the
court and to recommend appropriate
remedial measures. IO This medical panel
is still in operation today, and has been
the primary motivating factor in bringing
major reforms in prison medical care to
Florida. In 1984, physicians Ron Shansky
Black v. Ricketts, id. at note 3.
"See, NPP JOURNAL, Fall 1984, p.3, Fall 1985, p.4.
9 Allen Breed in Idaho, Witke v. Crowl, c.A. No.
82-3078 (consent decree Nov. 1984); Bill Nagel in
Florida, Bobby M. v. Graham, c.A. No. TCA837003 MMP (partial consent decree on preliminary
injunction Feb. 1983).
'°397 F.Supp. 20 (M.D.FIa. 1975), affd 525 F.2d
1239 (5th Cir. 1976).

7

and Robert Cohen reported that 17 inmates died for lack of proper care. In
1985, six more prisoners died. The
court then acted by ordering the closure
of the Lake Butler Reception and Medical Center hospital. The state finally responded to this situation, and has since
added 350 new medical positions in the
corrections department, increased the
medical budget by $16 million, and has
formed a new, five-person Correctional
Medical Authority to oversee health
care needs. Bill Sheppard, counsel for
the plaintiffs in Costello, said, "I believe
our case is unique. The reforms that
have taken place are the direct result of
the efforts of these doctors." Dr. Shansky is still carrying out his duties as medical expert for the court and acknowledged that, even though Florida "has a
long way to go," the reforms probably
would not have occurred without the
persistence of the medical panel.
The qualities experts possess which
make them effective in obtaining meaningful reforms, such as objectivity, persuasiveness, and a degree of trust from
prison administrators which lawyers may
lack, also make them exceedingly helpful
in settlement efforts. This idea is best
demonstrated in two recent cases settled by the National Prison Project. In
Hawaii I I, a new format for agreement
was created to meet the needs of administrators as well as plaintiffs. Panels of
experts were selected jointly by the
parties to prepare the actual plans for
reform of the system. The parties
agreed to broad, general principles and
left the details to be decided by the ex"Spear v. Ariyoshi,
cree May 1985.

c.A.

No. 84-1104, consent de-

Allen Breed and Bill Nagel have
performed that function with great
success.
perts. Once the plans were prepared to
solve problems of overcrowding, medical
care, programming and the prison environment, the .panels remained on the job
to monitor the defendants' compliance.
Through this arrangement, the defendants are able to actively participate in
the structure of their own reform, and
to become comlhitted to its success.
In the District of Columbia juvenile
case '2, a panel of juvenile justice experts
was charged with the task of studying
the needs of the plaintiff class and then
preparing a plan to accomplish the provision of services to. meet those needs.
This panel was even given the very basic
responsibility of deciding how many children the goverment can incarcerate. As
in Hawaii, the panel will remain intact to
monitor compliance.
These recent cases delegate power
to expert masters, monitors and panels
which lawyers have traditionally retained
for themselves. Defendants have proved
to be more amenable to this delegation
of power to experts than they were to
relinquishing power to the adversary
lawyers or to the courts. The results to
date have been mixed, but continue to
signal hope for the future. Undoubtedly
the importance of the dedicated professionals to the progress of institutional
reform will continue to grow, and with
it the prospect of real, positive
change. l1li
I2Jerry M. v. District of Columbia, c.A. No. 1519-85
(consent decree July 1986) (IFP).

Reflections of An Expert Witness
William G. Nagel
Early in the I970s a team composed of an architect, a clinical psychologist, and I studied the architectural and
programmatic features of over a
hundred new correctional facilities coast
to coast. A book, The New Red Barn, resulted from that survey. On page 82 of
that book was the following description:

In one institution at the time of our survey, nearly 18% of the inmate population was in some kind of segregation ...
The isolation was espeCially brutal. As
many as eight people have been locked
into one of the tiny, dark, airless and
bedless isolation cells for up to 21 days.

William G. Nagel, is retired after a long
career in corrections. He was the Warden
of a New Jersey state prison and a cabinet
level offiCial in Pennsylvania.

During our visit each of these gloomy,
bare dungeons held two, three, or four
men sitting naked on the cement flOOrs.
Only the five-inch holes in the (loors,
used as toilets, served any human purpose ...
When we left that sad, sad prison
we were reminded of Primo Levi, speaking of his experiences at Auschwitz in If
This Is Man 'It is not possible to sink
lower than this; no human condition is
more miserable than this, nor could it
be conceivably so. Nothing belongs to
us; they have taken away our clothes,
our shoes, even our hair; if we speak
they will not listen to us, and if they listen, they will not understand.'
AI Bronstein of the ACLU's Na-continued on next page
FALL 1987

....__....."""".. _'-_n_. . .

13

_

NAONAL

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PIIICl

Law Student Intems Recal1

Moments Tbey Won't Porget
Over the years, law student interns
have played an important part at the Prison
Project. Not only have they contributed
hours of hard work, they've also brought humor, enthusiasm and a diversity of personalities that has kept the office lively. Therefore,
as part of our fifteenth anniversary, we tried
to track down as many of these former law
interns as possible to find out what they're
doing now and what they remember about
the time they spent at the Prison Project.
Here are some of their memories:
Dale Drozd, 1977-78
I had never seen people work so hard for an
unpopular cause in which they held a strong
belief. Lawyers like AI Bronstein, Matt Myers,
Ralph Knowles and Ed Koren were my first
mentors and I will always think of them in
that way.
My most memorable experience while
at the NPP was accompanying the lawyers
who went to Alabama for the compliance
and contempt hearings in Pugh v. Locke before Judge Frank Johnson. I was able to tour
some of the Alabama prisons with our experts, see the NPP lawyers cut the state to
shreds, see an entire side to people in Alabama that I never would have believed existed, eat crawdads, see state run liquor
stores for the first time in my life and find
out I hated grits-- all in one very memorable
trip. I will also never forget NPP staffers
Bobbie Messalle and Jimmy Potts who not
only showed great kindness to me but also
taught me a great deal about life and people
during a time when I needed to be taught.
Michele Deitch, 1984
... going to Mecklenburg Prison right after
the riot and takeover there-getting a tour,
talking to officials who had been involved and
inmates who had been beaten, and recognizing in stark form the tension between security needs and some prison reform goals. It
made me realize that the problems faced by
all parties in th; prison context are not easy
ones.
Sandra Levick, 1979-80/80-81
I remember the horror of the New Mexico
Prison riot and the dedication of attorneys
like Ralph Knowles and later Steve Ney in
their representation of those prisoners.
Louis Siegel, 1987
... the fact that so many diverse personalities
can work together as a unit.
Caroline Canning, 1983
My experience at the NPP ... fostered in
me the greatest respect for those individuals
who have the dedication, and are willing to
make the emotional and financial sacrifices
necessary to dedicate their professional lives
to justice and individual rights.

14

FALL 1987

-continued from previous page
tional Prison Project apparently read The
New Red Barn and identified the offending institution (which we had not) as
being in Alabama. He asked me to testify as an expert witness for the inmate
plaintiffs in a suit against the state of Alabama. I agreed.
In August of 1975, in the company
of lawyers for both sides, I again visited
Alabama's prisons, and on the following
day testified before judge Frank M. johnson jr., then Chief judge of the United
States District Court in Montgomery,
Alabama. My testimony was far-ranging.
Among other things, I described to the
court the disciplinary area at Draper, a
prison which I had not previously Visited.

"If we speak they will not listen to
us, and if they listen to us, they
will not understand."
This area, known locally as the
"doghouses," was located some distance
from the main compound. It was surrounded by a locked fence the key to
which was retained within the main
compound. The deputy warden who accompanied us on our tour directed that
the key be made available "on the double because this is important." Nevertheless we waited several minutes before it was available. Inside this remote
compound we found no officer. There
was a series of tiny 4' x 8' cells void of
furnishings, but containing a hole in the
floor, the "oriental toilet." These could
not be flushed from within the cells, and
with no officer present they were only
flushed during the occasional inspections.
Each cell had a solid door except for a
small, very tightly meshed security
screen through which observation was
virtually impossible. My testimony reads:

I thought that these cells, unsupervised
and with no officer present, were unoccupied--a residual from another era.
But when I peered through the tight
mesh screen I saw human beings-naked human beings-two to three to a
cell. I have during my long career experienced just about everything within correctional institutions. I do not consider
myself to be more sensitive than other
people, but it sickened me to know that
such a "doghouse"-their term--existed, and that people in power knew it
existed, and used it And that these cells
in which human being were confined,
and where despair, violence, rape, and
even suicide occurred were not supervised by a staff person within the compound. The miserable persons within
those cells were being punished for such
insignificant offenses as "late for detail,"
and "going through the line twice," and
the like.

... no single opinion or order has
given me greater satisfaction.
Later in the testimony, I was asked why
conditions such as I had described existed. My reply, edited for brevity, was
as follows: As I travel around the country I

am aware of a "we-they" syndrome
which influences policies and practices.
In Wisconsin, Vermont, and Minnesota,
for example there is homogeneity in the
general poRulation. In those states the
prison population resembles the policy
makers who can easily empathize with
the offenders. There but for the grace of
God go I. The prisoner is treated as the
policy maker would want to be treated.
This is also true in much of Europethe Netherlands, Denmark, Sweden for
example. In other places there is great
heterogeneity. The prisoners are different from the policy makers and the
prison administrators. They are a breed
apart It is my opinion that in such
places prisons are overused, and practices which I have described are accepted as penal necessities.

judge johnson did not view the
practices as penal necessities. Indeed be
ordered the "doghouses" torn down
forthwith. Within a week of my testimony Walter Cronkite's evening news
showed inmates with sledges pounding
the brick and mortar of that hideous
place into rubble. Though I have subsequently testified in many prison conditions suits from Puerto Rico to Alaska,
and from New Hampshire to California
no single court opinion or order has
given me greater satisfaction.
The orders of district judges across
the country have helped greatly to define the limits of such practice. But to
this witness nothing has been more
grievously disturbing than that many correctional colleagues-including some
who are much honored in the profession-have either remained silent before
the courts of this land, or have actually
testified that practices such as I have described are acceptable--even penologically necessary. III
To help put an end to such practices, Mr.
Nagel has agreed again and again to appear as an expert witness.

SPECIAL MASTERS

Debate Needed on Role of
Masters in Litigation
Allen Breed
The positive changes in corrections
that have occurred during the past decade can, without question, be attributed
to the leverage exerted by the courts as
litigation, or the threat thereof, has
forced reform. The role of the Special
Master' in performing such tasks as assisting in the formulation of remedial decrees, the negotiating of consent decrees, the finding of facts, the
monitoring of court orders has contributed greatly to the translation of plans
and decrees into the reality of humane,
fair and safe correctional practices.
The use of Special Masters in correctional litigation, however, is a relatively recent application of the traditional exercise of the inherent equity
power of the court. The decision to employ a Master has not been reached
lightly, nor executed carelessly, as the
appointment necessarily reduced the
control of parties and even, to some extent, the court over the course of the
litigation. The Master's powers of investigation and fact finding are wide and his
or her factual findings, unless clearly erroneous, are likely to be controlling.
The decision of some courts to utilize
Masters in correctional litigation began
in the I970s after the almost total failure of defendants to comply with the
remedial orders issued in early prison
and jail cases. Few judges had any understanding of what the roles and responsibilities of Masters should be, and perhaps
even less comprehension of the legal implications involved. One U.S. District
Court Judge responded to the question
of what a Special Master was by replying, "I don't really know, except that he
can't be a committee!"
Individual~ appointed as Special Master, or interested in the concept knew
even less. Fortunately, the initial appointees reached out to each other and
banded into a support group, with an effective information network. It was their

Allen Breed is a criminal justice consultant;
Board Chairman, National Council on
Crime and Delinquency; Special Master,
Mediator in various jail and prison cases;
former Director, National Justice of
Corrections.
'The generic term Special Master is used, although
it is recognized that various titles and roles such as
Monitor, Auditor, Reporter, Compliance Coordinator, Ombudsman, Mediator, etc. are used.

trial and error techniques, the brainstorming, the creative and innovative approaches to uncharted waters, and the
willingness to share ideas that marked
the efforts of those early years. In fact,
it was this 'support group, coordinated
and, to some degree financed, by the
National Institute of Corrections in the
early I980s, which made it possible to
provide training for newly appointed
Special Masters, information regarding
compliance techniques to interested
courts, a training manual for both courts
and Masters, and, of greatest value, a
forum though which "research and development" could take place.
Unfortunately, like all pioneering
movements, the newness wore off; "old
masters" became overly involved in their
practices and lost the need to confer,
techniques and approaches became routinized and comfortable to maintain, limited new blood was admitted to the circle of Masters, and the National Institute
of Corrections shifted its interests and
resources to other priorities. The result
has been that little progress has been
made in recent years in the refining of
roles and procedures of a crucial component in the correctional litigation/compliance process.
The purpose of this short article
then, is to encourage a renaissance of
learning as to the most appropriate use
of Special Masters-a reaching out from
the experiences gained over the past 1012 years, to the potential that hasn't
even been imagined. There are many
ways that this can be done-through
workshops, forums, papers and networking. Of greater importance than the process utilized, however, is the willingness
and leadership of all parties in the correctional litigation arena to break with
traditional patterns and thoughts, and attempt to find more effective ways of using Special Masters.
In the hopes of stimulating a dialogue towards developing an agenda for
change, let me list some personal
concerns:
• Orders of reference are not
clearly describing the Special Master's
role and responsibilities, setting forth
both the authority vested, as well as the
limitations intended.
• Orders of appointment are not
stating the experiences and training required to fulfill whatever roles and responsibilities that the court wishes car-

ried out. The statement of what is
required to carry out the duties would
assist the court in its recruitment and
hiring process.
• Many Special Masters are not
bringing to the assignment experience in
mediation, arbitration, understanding of
management issues, expertise in the substantive areas-of corrections, and a political sense, although these qualities are
necessary to the successful functioning of
the position.
• Should a Special Master utilized
in the pre-decre~tal stages be the same
individual who will later monitor the decree? Are there roles and techniques
used in the negotiating process of developing a remedial plan that alienates the
effectiveness of monitoring and report.,
ing? Can any individual play the numerous roles required of a Special Master,
or should the process be placed in the
hands of a multi-diScipline team?
• The time periods for compliance
with a consent decree are ridiculously
short, creating unrealistic expectations
on the part of the defendants, and frustration on the part of the plaintiffs when
compliance doesn't take place. The Special Master is almost immediately placed
in an unfair controversial role, as progress towards compliance is reported as
being "behind schedule."
• Courts are all too often accepting compliance on the basis of the defendants' having adopted a policy, without delaying the decision in order to
determine whether the policy has been
implemented and maintained.
• Special Masters are being treated
as "another party" rather than as an expert and agent of the court. Unnecessary effort is being required to "prove"
all observations, analyses, interpretations
and opinions.
• Counsel are often continuing the
adversarial process by becoming overly
involved in the compliance process,
being picky on minor issues, demanding
in reviewing all documents, communications and data. Litigation resources are
in too short supply to allocate as much
attention as compliance is currently
receiving.
• Special Masters, through their
interpretations of wording, are "expanding" cases beyond the intent of the
decree.
• Special Masters are overly complicating both the planning and monitoring processes resulting in prohibitively
costly operations.
• Perhaps monitoring should be
left to the parties with a neutral coming
in only when mediation or arbitration
services are required.
Each of these concerns can be argued from different perspectives, and
-continued on next page
FALL 1987

15

NM
P ON

PIIICl

Law Student Interns RecaO

should be. The tragedy is that such debates are not occurring, and new approaches and points of view are not
being developed.
Correctional litigation must be continued if needed reform is to take place.
However, it is imperative that we begin

to ask questions and experiment with
creative answers to how, within the
constraints of the law, we can find the
most effective methods of gaining organizational compliance with constitutional
standards. II1II

Moments Tbey Won't Porget
Art Meneses, 1981
The thing I remember most about my NPP
internship is AI Bronstein portraying a street
person, complete with cigarette butts and 5
or 6 old sweaters, at the Halloween party
Michelle Osborne and I had at our
apartment.
Caroline Smith, 1984-85
... I ... miss the spirit of the people who
are doing private sector public interest work.
It is difficult to be an activist bureaucrat, but
I am trying.
I remember the look on the faces of the
inmates who were being triple- celled in the
Intake Service Center in Rhode Island.
Michele Ann Zavos, 1977-78
... a tour of the Maryland House of Corrections, a prison I came to know very well. An
entourage went through the place to allow
the environmental expert for Bailey v. Mandel to conduct an inspection. It was like visiting the dirtiest, darkest, smelliest zoo you
could imagine. The contrast between seeing
that place and litigating Bailey in a quiet,
clean courtroom stays with me to this day.
Laurie Solomon, 1983
My working with Elizabeth Alexander [is
memorable to me]. I enjoyed her so much;
she was pleasant, encouraging, fun to work
with, and very competent! Obviously, along
with that, goes my enthusiasm for the inmates at Mecklenburg, especially Willie Lloyd
Turner and Joe Giarratano.
Mark Kluger, 1985
My experience at NPP was and continues to
be invaluable. It was my first law related job
and the encouragement and feedback I received from the attorneys has provided me
with confidence that continues to influence
my work.
My favorite story from the summer of
1985 involves an incident with Steve Ney.
The D.C. Circuit ordered the D.C. jail population to be reduced almost immediately. Just
after the order C4,ame down, television news
crews showed up to interview Steve. Like
most days, he was wearing an orange Hawaiian shirt and shorts. He came running to
the library looking a little frantic and asked
to borrow my oxford button-down shirt so
that, as he said, he could look like a lawyer
from the waist up. During the interview he
sat behind his desk wearing a borrowed shirt
and tie, and nobody watching him on TV
ever knew the NPP summer dress code. I
went home early to watch my shirt on the
six o'clock news.
Elizabeth (Liz) Rosenthal, 1984
The thing most memorable about my NPP
internship is the humidity in Washington,
D.C. and also the evil smirk of [a former]
warden at Mecklenburg when Elizabeth Alex-continued on page 18

16

FALL 1987

Lawsuits Fundamental
to Prison Reform
Vincent Nathan
Any suggestion that the time has
come for litigators to abandon the field
of prison and jail reform, apart from
being a reflection of a seemingly persistent desire of humankind to "kill all the
lawyers," is tantamount to a declaration
that legal norms have become irrelevant
to the maintenance of constitutional correctional facilities. It is a suggestion that
thoughtful students of the American correctional scene must reject. This is not
to say, however, that Iitigators and
others should not acknowledge a variety
of important forces that have arisen during the past I0 to I 5 years that are
complementary to litigation efforts to
reform American prisons and jails.
The establishment of the Commission on Accreditation for Corrections
and its progressive standards, long overdue attention to correctional problems
by elected officials in a number of jurisdictions resulting in increased appropriations for correctional agencies, expanding efforts by citizens' groups to affect
the political process as it relates to corrections, and the trend toward professionalism corrections all are phenomena
of signal importance to the improvement
of our jails and prisons. Even the most
vocal critics of institutional reform litigation, however, must acknowledge that
these praiseworthy developments have
derived largely from pressures generated
by lawsuits won against jail and prison
officials. Although lawyers and judges
should welcome progressive and humane
administrators, government officials, and
organized citizens as allies, their presence--even their increasing effectiveness--cannot diminish the role of law,
and thus that of lawyers, in dealing with
issues that are essentially legal in
character.
Steady progress toward ameliorating the worst abuses in our prisons and

Vincent Nathan is a partner in the law
firm of Nathans & Roberts, Toledo, OH;
Special Master in Texas, New Mexico and
Puerto Rico prison cases; former Special
Master, Georgia and Ohio prison and jail
cases.

jails as a result of the combined efforts
of litigators, enlightened public officials,
concerned citizens and dedicated correctional professionals, however, has led
some observers to conclude that continued emphasis upon the adversarial litigation process is no longer a necessary, or
appropriate, means by which to spur further reform. For reasons that I shall discuss briefly, this conclusion ignores several harsh realities that are likely to
confront American correctional institutions for the foreseeable future.
First, prisoners as a class are politically impotent. Their classification as .
slaves in the 13th Amendment to the
United States Constitution, inability to
affect the political process through the
exercise of the vote, and lack of access
to political power reserved primarily for
members of the mainstream strata of
our society guarantee that prisoners by
and large will be unrepresented in the
halls of legislatures and the offices of executive officials. Although concerned citizens' groups and articulate and committed directors of correctional agencies
have attempted, with limited success, to
construct a constituency for prison reform, these efforts have had only a marginal impact on legislators and executives
who must answer to those who elected
them and who are crucial to their reelection. Even as one acknowledges that
there are elected officials who personally
are deeply concerned about the horrendous conditions they know exist in many
American jails and prisons, the majoritarian principle that underlies the concept
of representational government assures
that the needs of prisoners are likely to
be relegated to an extremely low priority by the realities of executive and legislative politics.
.
The only antidote to this effect of
the operation of majoritarian democratic
principles-and how well the founders
of our nation knew this-is the involvement of an independent judicial branch
of government in protecting the constitutional and other legal rights of those
members of society who do not have
access to the mainstream of political

power. Courts, however, can hear and
decide only those issues that are
brought before them. Thus, it is institutional reform litigation that triggers the
essential judicial element of the operation of our constitutional, democratic
system as it relates to the maintenance
of constitutional conditions in prisons
and jails.
Second, one must acknowledge that
prisons and jails in the United States, in
too many cases, fall far short of standards dictated by federal constitutional
principles and state law. Dilapidated
physical structures, shockingly inadequate
environmental conditions, rampant staff
brutality, unchecked inmate violence,
substandard medical, dental and psychiatric care--to name only a few-are conditions that, although no longer virtually
universal, continue to affect the lives of
prisoners in more than isolated instances. Although those who have labored in courtrooms, cellblocks and legislative committee rooms can take pride
in the accomplishments of the past two
decades, it is far too early to declare
that the war on inhumane and illegal
conditions of confinement has been won.
Finally, such progress as has been
made in the effort to bring the rule of
law into American correctional institutions is seriously threatened by the
seemingly intractable problem of increasing crowding of prisons and jails. The figures are all too familiar: some 550,000
men and women are held in state and
federal prisons; the nation's jail population numbers approximately 250,000;
between 1970 and 1979, the prison population increased by 39%, the largest increase since the federal government began compiling prison population
statistics. A similar increase in the national prison population was experienced
during the first six years of the current
decade. Although between 1979 and
1984 the opening of I38 new state prisons and the renovation of existing prisons added nearly 5.4 million square feet
of housing spaGe, an increase of 29%, inmate population increased 45% over the
same period, resulting in an I I% decrease in the average square feet of
housing space per inmate. I
Like the figures themselves, the
causes of crowding are well known. Unfortunately, the fear of victimization is all
too real in American cities and towns?
Bureau of Justice Statistics Special Report, Population Density in State Prisons (December 1986).
2Criminal victimizations in the United States approximated 34.9 million in 1985 for persons age
12 and older. Although this reflects a decrease of
approximately 2% from the criminal victimization
rate in 1984, and a heartening 16% reduction from
the 41.5 victimizations recorded in 1981, one can
hardly describe the fear of crime in America as un1

Reactions by state executives and legislators to the public's demand to "get
tough" with prisoners has resulted in
statutory mandatory sentences, minimum
sentences, the elimination of good time
earned for constructive pr!son behavior,
and the abolition of parole outside the
context of intelligent sentencing reform.
These developments predictably produced ever-increasing numbers of prisoners, with little corresponding attention to the need to expand facilities,
services and staff to accommodate that
increased population. The relative inelasticity between rates of incarceration and
crime rates, although virtually irrefutable, has played no discernible role, at the
national or state level of government, in
the development of criminal justice and
other social policies designed to address
the public's legitimate concerns about
criminality.
As a result, courts in more than
two-thirds of our states are overseeing
litigation relating to crowding and the
effects of crowded conditions upon prisoners. Similar litigation affects a large
number of major urban jails in America.
Moreover, conditions of economic retrenchment being felt in many cities and
states have tied the hands even of prison
administrators, elected executive officers
and legislators who otherwise might
avail themselves of negotiated or other
voluntary forms of resolution of problems they recognize and wish to correct.
Thus, in many instances, litigation offers
the only avenue for all concerned in the
effort to bring about constructive
change mandated by constitutional and
other legal principles.
The underlying assumptions-as
well as the realities--of majoritarian,
representational government, the persistence of unconstitutional conditions,
and the very real threat that long-sought
and hard-earned progress will be eroded
by the rising tide of commitments combine to establish the vital need for continued emphasis upon litigation as a principal element of institutional reform
efforts. Increased correctional professionalism, Widespread efforts to achieve
compliance with accreditation standards,
enhanced public awareness of the true
state of affairs in American prisons and
jails and the effects this increased awareness has had on the political process are
salutary developments. For the foreseeable future, however, they must be
viewed as being complementary to the
fundamental responsibility of lawyers and
judges to uphold and defend the Constitution as it applies to the inhabitants of
America's prisons and jails. III
justified. Bureau of Justice Statistics Bulletin, Criminal Victimization 1985 (October 1986).

According to Bureau of Justice
Statistics, in 1986 criminal victimizations reached the lowest
level in the 13-year history of
the National Crime Survey.
From the year before, the number of violent crimes (rape, assault, and robbery fell by a total of 5.5 0 0. Rape, however,
increased by 10.9%. But the BJS
survey found 'that the proportion of women who said they
had been raped, and reported
the crime to police, declined by
20.4%. The peak year for crime
was 1981.
In 1985, the average cost of
housing a resident for one year
in a public juvenile facility was
$25,200 nationally.
Nineteen states reported
18,617 early releases in 1985 because of overcrowding. Nineteen states said that 10,143 prisoners were backed up in local
jails because their prisons had
no room.
The number of federal prisoners could double to 83,000 in
the next five years and may
nearly quadruple in 15 years, according to the U.S. Sentencing
Commission. "Natural growth"
in convictions and recent anticrime laws will account for
most of the increase, with the
commission's own guidelines
boosting it further. Federal prisons presently hold 43,000 prisoners, and operate at 53% over
capacity.
Southern states experienced the most significant reduction in prison space per inmate during the period from
1979 through 1984, from 75
square feet to just under 60
square feet.

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UNAt
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Law Student Interns Recal1

Moments Tbey Won't Porget
ander, Maggie Wood Hassan and 1were sitting in his office in early July, 1984. 1look
back on all the staff and every day I spent
there with great nostalgia.
Stephen Martin Kohn, 1983
My internship at the NPP introduced me to
some important aspects of public interest law
and prisoner rights law.
Kenny Riaf, 1984
My experience at the NPP was the difference, the thing that bridged the gap between
theory and practice.
The most memorable incident of my internship was when I asked a prisoner what
he wanted to do when he got out. He said,
"Become a mercenary in Central America-it pays a thousand dollars a year." I told him
it didn't sound like much money for all the
risk involved, just a thousand dollars a year.
He said, "Nay, nay, my friend-a thousand
dollars an ear."
Max W. Beck, 1980
NPP showed me that lawyers could work
together in a humane workplace.
The things I remember most are reading
Jack Abbott's correspondence and meeting
Ed Koren.
Norm Townsend, 1975
More than anything, my internship at the
NPP reaffirmed my commitment to criminal
defense practice to (hopefully) avoid my
clients going to the hell-holes NPP deals
with.
I ... enjoyed getting to help AI prepare
to argue a case before the Supremes, and
then watch the argument. All in all, I loved
the whole experience working at NPP.
Larry Allen Nathans, 1980
My NPP internship was motivating in that I
had an opportunity to work with many fine
lawyers. My most memorable experience was
spending approximately 32 straight hours at
the Project working on a last minute brief
for Steve Ney...
Margaret Wood Hassan, 1984
I came away from the experience [at the
NPP] with a much deeper appreciation for
both the daily struggle that constitutes an inmate's life and the need for full time advocates for prisoners. I gained a very strong
sense of the incredible efforts necessary to
make even very small changes in the prison
system. I have continued to use my experience at the NPP as an advocate for individual
inmates (during a co-op through Northeastern University) and in helping my current
colleagues who are representing inmates. I
have a feeling that I may be using my experience some more, as I now live in the state
with the most crowded prisons in the country [Massachusetts].

18

Prison Reform Vi
Joseph Giarratano
Dostoevski once stated that "the
degree of civilization in a society can be
judged by entering its prisons." In our
age of advanced technology our prisons
still remain an accurate measure of our
humanity. That our prisons have become
more humane since Dostoevski's day
goes without saying. But to say that our
prisons are, for the most part, humane is
a falsehood that we must all face. Thanks
to a small handful of committed individuals, who dedicate their time and energy
to prison reform, the prison where I
have spent the past eight years is a much
better place than it once was. Trekking
through the intricacies of prisoners'
rights litigation in the judicial arena, the
political labyrinths, and other shocking
horror stories has been a trying, though
enlightening experience.
Our country professes to be not
only the stanchion of democracy, but
also a paradigm of justice and a humane
society. Juxtapose that ideal with our
penal system and compare for yourselves. Approximately three years ago a
federal judge stated, "I thought the dark
ages in Virginia's penal sytem were over
15 years ago. Apparently I was wrong."
The judge was talking about a place
where guard violence against prisoners
was rampant; a place where mentally ill
prisoners were chained to steel bunks
under strip cell conditions; a place
where prisoners were forced to live in
their own excrement; a place where
prisoners were denied proper medical
care; a place where prisoners were
locked down under long-term isolation
for minor rule infractions (or just on the
whim of a guard); a place where prisoners were subjected to body cavity
searches for no apparent reason other
than harassment; a place where visitors
were harassed and intimidated to discourage visiting their family members; a
place where visiting attorneys were harassed and denied access to their clients.
All of this, and much more, was done
under the guise of "behavior modification." To list all of the indignities and
deprivations would take several pagesall of them a matter of record. The

Joe Giarratano, a Death Row prisoner in
Virginia, is a named plaintiff in Brown v.
Murray, the NPP lawsuit He also filed,
and won, Giarratano v. Bass, a legal access case, and filed Giarratano v. Murray,
a right to counsel case (see NPP JOURNAL, Summer 1987) now pending in the
4th Circuit Court of Appeals. Mr. Giarratano has also assisted other Death Row inmates in dozens of legal matters.

judge was ref~rring to Mecklenburg
Correctional Center (MCC), a place not
unique for its horror stories. None of
this is meant to imply that the prisoners
were blameless angels. We were all,
guard and prisoner alike, caught in a vicious cycle of violence.
Through the efforts of the Prison
Project and a small group of others,
change came--it came slowly-but it
came. Negotiations were often heated,
all manner of highjinks were employed
to discourage their efforts, the judicial
process was slow and the litigation extensive. Resolutions were reached and
agreements made: all broken again and
again. MCC is a much more humane and
safe prison than it was eight years ago,
but even now it falls far short of the .
ideal I mentioned above. The efforts of
those few dedicated people continue to
this very day.
Bleeding heart liberals advocating
rights for the criminal element? Incarcerated law breakers? Those seeking to
turn prisons into hotels? When confronted with that mind-set I can only
shake my head. For a country that
oftens condemns human rights violations
in other countries, that attitude is more
than ludicrous-it's hypocritical.
So many seem to forget that the
incarcerated individual was removed
from society and placed in prison as punishment: that person was not sent to
prison to be punished. Punishment
serves a legitimate purpose--punishment's ultimate goal is correction/rehabilitation of the offender. Our society
has a vested interest in how its prisons
are managed. The majority of prisoners
will, one day, be released back into society. Punishment of the offender is legitimate, but no more than is rehabilitation.
That our prisons are not conducive to
rehabilitation is a clear indication of society's refusal to accept responsibility for
its institutions. Humane prison conditions should be everyone's concern--yet
prison reform activists are generally ridiculed for their work in this area. That
such organizations serve a legitimate societal interest should be clear to all of
us. They see that whether the prisoner
is rehabilitated or not, eventually his or
her sentence will expire, and that person will be released back into society.

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We are qUick to blame the courts,
the politicians, and so-called bleeding
hearts for the problems within our institutions. As a whole we have passed our
mass responsibility on to them: we pass
the buck and then ridicule them. Quick
to condemn and even qUicker to deny
our responsibility. These prison reform
activists aren't taking the prisoners' side,
they aren't trying to turn prisons into
hotels, they don't say that a lawbreaker
should not be punished, and I haven't
met a single one who believes that prisoners should be molly-coddled. They are

taking society's side, they see no logic in
a prison system where the person
comes out worse off than she or he
went in, and their aim is to see that our
prisons are conducive to the goal of rehabilitation. Through their chosen
profession they seek to uphold the bulwark that binds our society together:
the United States Constitution. A task
whose common thread is human beings,
some good, some not so good, be they
guards or prisoners, judges or politicians,
and the public at large: whether we
choose to be responsible or not. II

The Class Representative:
A Personal Experience
Roger G. Flittie
I am a prisoner at the South Dakota State Penitentiary in Sioux Falls,
South Dakota, and I am the named plaintiff in a prison conditions class action
case that is being represented by the
ACLU National Prison Project and two
local attorneysl.
When I first came to the prison in
late 1977 it was my first prison experience. I did not like what I saw. The
prison was fast becoming overcrowded,
cell halls were poorly ventilated, numerous fire safety violations existed, an antiquated locking system for the cells was
in use, the kitchen facility lacked standard health and sanitation practices, food
storage areas were pest- and rodentinfested, medical, dental and psychological care for the inmates was severely under par, and the prison law library
lacked trained clerks to assist inmates
with their legal problems. These are but
a few of the more serious conditions
that existed here, and it had been going
on for a long time.
For two years I was an inmate law
clerk appointed by the Warden, until I
was fired after a severe riot in late
/981. I believe to this day my firing was
in retaliation for my law work on behalf
of other inmates.
While I was working in the law library I became very interested in civil
rights law. That study led me to join
Roger G. Flittie is the national award winning editor of The Messenger, SDSP inmate magazine; a six-year member of the
National Lawyers Guild; SDSP chapter coordinator of the NLG Jailhouse Lawyer
Project; National Coordinator of the Thunderbird Prison Alliance, a project of the
Committee to Safeguard Prisoner's Rights,
Inc. headquartered in Huntsville, Texas.
'Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984).
a(f'd.• 700 F.2d 447 (8th Cir. 1986), reh. granted on
different issue. 804 F.2d 440 (8th Cir. 1986), reh.
granted to 8th Cir. en bane, Jan. 12, 1987.

with another inmate in May 1980 to file
a class action prison conditions suits in
the federal district court under 42 U.S.C
§1983. We basically claimed that the totality of conditions at the Penitentiary
violated the Eighth Amendment ban on
cruel and unusual punishment at the 100
year old prison.
At that point in time I was a cocky
jailhouse lawyer with only two years of
experience and thought I knew everything. I quickly found out how little I
really knew, and immediately got a taste
of what was in store for an inmate who
dared to buck the system. For the next
seven years as the case dragged on in
the courts I experienced various forms
of retaliation by prison officials, threats,
harassment, cell shakedowns, denied visits, denied parole three times, denied
any outside the walls activities even
though throughout all this time I maintained a model prison record. I would
not do anything different if I had it all to
do over again. I could have just done my
time like a lot of other inmates do without creating any waves. But I did not
and I am glad I became involved in the
class suit despite the hardships I have endured because of it.
Initially in the class case we were
appointed a local attorney who had little
experience in prison litigation, little assistance with the case, no funds for litigation expenses, and could not obtain
the experts we would need if we were
going to succeed in proving our case at
trial. We worked long and hard with the
local attorney trying to put together a
case and met with him many times to
discuss strategy. At times we all felt it
was nearly hopeless. It was us few
against the power and resources of the
state.
What we need was help, lots of it,
and fast. The case had dragged on slowly
during the discovery stages and it
seemed we would never get to trial, but

it came on all too soon and we found
ourselves facing trial in June 1983. Prison
officials were actually coming up to us
and mocking us, saying we had no case,
there was nothing wrong with this
prison. I was, for the second time, desperate for help.
I found it out of sheer luck, again in
the law books. By chance I ran onto a
case in one of the Federal Reporters on
a women's prison suit. Just below the
caption of the case I read "Claudia
Wright, ACLU National Prison Project
for the plaintiffs." Now there had to be
help there, I said to myself. So I quickly
wrote a letter to the ACLU in Washington literally pleading with them to come
and join our case. It was within weeks of
the trial, but I had to try, and with little
hope, I mailed the letter, telling no one.
Five days later I was called to get
some legal mail. It was from Elizabeth
Alexander, an ACLU attorney with the
National Prison Project. She said she'd
be here the following Monday with an
expert to tour the prison and decide if
the ACLU would get involved with the
case. The rest is history in the law
books.
The ACLU came to South Dakota
in full force. We got the trial continued
to July 1983 to give them time to bring
in other experts in areas of environmental conditions, health and sanitation,
medical and psychological care and general prison standards. All these experts
came from across the country, took a
good look at our prison and pronounced
it in serious trouble in nearly every area
we had claimed wrong in our lawsuit.
They appeared at trial and testified,
along with several inmates, and in early
1984 the district court judge declared
the conditions at the South Dakota State
Penitentiary unconstitutional. One of the
biggest wins for us was the court's finding that overcrowding was a serious
problem at the prison and combined
with the totality of conditions of confinement the court ordered a ban on
double-ceiling at the prison.
The case did not stop when I was
released in February 1984. I found myself back at the prison for the second
-continued on next page

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19

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Law Student Interns Recal1

Moments They Won't Forget
Jody Hart Levine, 1985
The thing most memorable about my NPP
internship? Great people! Hard working but
also party animals!
Delbert Bauldock, Jr., 1985
My experience at the NPP influenced me
greatly by giving me many examples of the
dedication and personal sacrifice needed (AI,
Adjoa, Dan, everyone) to become effective
advocates in the public interest.
John Fitzpatrick, 1986
I was impressed by the large-scale systemic
changes that the litigation of the NPP
brought about in various prison systems. The
length of many NPP-induced consent decrees--many of which have been ongoing for
years-is a tribute to the NPP's comprehensive approach.
Howard Friedman, 1975-76
My first job after graduating law school was
as a staff attorney for the Prisoners Rights
Project in Boston and I continue to practice
civil rights law; working at NPP helped me
on my way. Over the years, I have been able
to get excellent advice and assistance from
AI Bronstein whenever I need it.
I still recall my first trip to Patuxent (Institution) when I saw a large door marked
"Receiving" and realized they were not receiving packages or mail, but people.
Marvin Hamilton, III, 1986
Working at NPP did two things: it confirmed
my vocation to work with prisoners, and it
spoiled me. NPP has the best Eighth Amendment litigators in the country. It is a high
profile office with prestige, pride, and clout.
The things I remember most about my
NPP internship are living with my landlord,
Dan Manville; the 1812 Overture at Wolftrap; morning runs through the zoo; learning
to juggle at II p.m. in the law clerk's office;
packing 15 million boxes for the Michigan
trial: twice; Beryl's laugh; AI's war stories;
Friday afternoon parties; the Royal Wedding;
settling Jerry M.; tile Lorton riot and subsequent media blitz ("Who wants to be on
'Nightline'?); and historic Alexandria.
Ira Burnim, 1976
I greatly enjoyed the summer. It was my first
exposure to a public interest law organization. The most memorable part of my internship were the people in the office. I really
enjoyed being around them.
SallyAnne Campbell, 1985
I'm still doing prison work (and everybody
here in California asks in awe, "What's it like
to work for AI?").
I remember Adjoa Aiyetoro, Steve Ney,
Nkechi Taifa and others reenacting a court
scene with salt and pepper shakers and other
table utensils at an outdoor cafe . .. and being
asked to quiet down. And finally, I remember

-continued on page 22
20

.=

time in December 1985, and shortly
after I returned I again joined the case.
The original inmate who had joined with
me in 1980 got outside the walls in late
1985 so I have taken on the case as the
sole class representative since that time.
About this same time it became obvious to us that the prison was not complying with the previous orders of the
court. While there had been major improvements in some areas of the prison,
other things seemed to be going downhill rather than up.
The ACLU attorney, working with
our local attorney decided it was time
to go back to the district court with
complaints of noncompliance. In our initial pleadings we alleged that the medical, dental and psychological services
were still being operated under minimum accepted standards. Many inmates
were still not being treated for obvious
conditions. There were still problems in
the kitchen with sanitation and pest infestations, and there were serious industrial shop safety concerns. Also, the population at the prison was steadily
climbing and double-ceiling continued
despite the court's earlier order.
We had hearings before the court
in July 1987, our experts again appeared
to testify along with several inmates, and
at the time of this writing we are awaiting an opinion from the court. We expect it will again be favorable.
As a class representative, I have
spent hundreds of hours working on this
case over the last seven years, perhaps
thousands. It has been a long and difficult
road for all of us. I did not do it all myself, I had help from many, many inmates
who came to me with their stories
about what was happening to them.
Without the help and support of the inmate population here I could not have
accomplished what I have. It has taken
years for me to gain the faith and trust
of the other inmates.
Here that is easier than at most
prisons, as we have had an inside the
walls population maximum of only 615
men. With those numbers I have gotten
to know most of them. But be it a large
prison or a small one, you will find very
shortly that you need a significant portion of the population behind you if you
bring a class case.
That has been perhaps the single
biggest struggle I have faced in my experience with this case. And the prison
staff seems to do their utmost to make
things difficult for you. They will spread
rumors about the population that you
are going to get them to lose privileges
they already have because you are suing.
They will say you are just suing to bring
attention to yourself, they mock you and
say you do not have a case and try to
get the other inmates against you.

That's serious, and you've got to be
able to handle it, take the heat from the
staff and the inmates. One of the best
ways I've found to do that is to let
everyone, especially inmates, know what
you are doing. I've made a lot of copies
of our pleadings, especially earlier on in
the case of the complaint, to let inmates
know what' we were claiming and that
we had a sound legal basis for our
claims.
I've spent a lot of hours talking to
inmates who ~ad valid, serious complaints and were afraid to do anything
about it because they did not want to
be denied parole or trusty status for
speaking out. You have the convince the
men that you can get their complaints
before the court and in the end you can
win something that will help everyone.
You'll spend a lot oftime talking to
and helping a lot of inmates you personally do not like. But you will have to do
it because when you signed your name
on that line on the complaint and said
you wanted to be a class representative
you were making a commitment that
you would fairly and adequately represent every single member of the class.
That's a legal obligation you take on, and
you could get your complaint dismissed
if you don't.
Being a class representative in a
prison case is the most difficult and
time-consuming tasks I have ever taken
on in my whole life. I had no idea what I
was getting into when I started out.
In the final analysis, being a class
representative is not for everyone. I'm
sure there are good ones and bad ones,
but for all it is just plan hard work and
no rest. You can expect the case and all
that goes with it to go on for years.
The rewards however are personal
and intimate to you and you alone. I feel
great pride looking back at what we've
accomplished in seven years of litigation.
I've been the spotlight many times and I
like that, I'm not a shy person. I set out
seven years ago to do something good
for my fellow man and myself because I
was here and did not like what I saw
and the way I was being treated. I've
been very fortunate, we won the case,
so in a sense this is a success story. It's
not over yet, a lot of things are still
wrong, I still see inmates suffering emotionally and physically every day, but it's
improving, it is way better than it was in
1977. And I firmly believe it would not
be better if we hadn't done what we
did, and I'm happy about that.
We could not have accomplished
this without the fine, dedicated people
at the ACLU. To them we all owe a
debt of gratitude we can never repay.
But those of us who are like this, we
know if you don't fight, you'll never
win. III

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The Reform of Federal
Sentencing and Parole Laws
Dennis Curtis
The National Prison Project's work
is profoundly influenced by sentencing
and parole policies. In 1984, Congress
enacted the Sentence Reform Act of
1984, which, when implemented, will
work almost a complete metamorphosis
in federal sentencing practices and procedures. The Act-not yet effectivecreated a Sentencing Commission to
draft guidelines for sentencing and abolished parole. By examining the federal
sentencing and parole system as it has
existed over the past fifteen years, one
can understand both the pressures for
change and what problems will crop up
in the wake of "sentencing reform."
While my familiarity with the federal
system and the magnitude of the changes
there have led me to write about that
system, many state systems have undergone similar changes during the same
period.
For several decades prior to the
I960s, the federal sentencing system was
relatively stable. Congress defined federal crimes and set penalties for violation of federal laws. Typically, Congress
gave judges wide latitude in choosing
whether to impose the penalty of imprisonment and, if so, the maximum
length of such incarceration. In addition,
the sentencing judge determined the
amount of time (typically one third of
the sentence) to be served prior to parole eligibility. A judge's discretion in
sentencing was, practically speaking,
unlimited.
Once a prisoner was sentenced,
there were two ways to affect the time
served by the prisoner. First, a defendant could ask the sentencing judge for a
reduction of sentence, and once again,
the judge had essentially free rein. Second, for those defendants who were
sentenced to pr"lson, the United States
Parole Board played a key role, for the
Board determined the actual time to be
served by a prisoner. Up until the early
seventies, the Parole Board's operations
were shrouded in mystery; the Board
provided no information on why it decided to release or to retain prisoners.
Prisoners did not know how to affect
the decision, although the rhetoric of rehabilitation (which surrounded both sentencing and parole) led prisoners to argue to the Board that, while in prison,
they had demonstrated progress to-

Dennis E. Curtis is Professor of Law at the
University of Southern California Law
Center.

wards reform. To the extent one could
divine the Parole Board's "policy," it
seemed that the Board looked for signs
that a prisoner had "turned around,"
that the "magic moment" for parole had
come because the prisoner was now a
good bet for success on the street and
continued incarceration would be harmful to his or her morale.
The new federal parole system, begun informally in the early 1970s, was
turned into law with the enactment of
the Parole Commission Reorganization
Act of 1976. But parole gUidelines could
never respond completely to the disparity inherent in the federal sentencing
system, for judges still controlled the parameters in which the (now) Parole
"Commission" worked. Two identically
situated defendants could still be given
vastly different amounts of time to
serve. Once again, reformers (myself included) clamored for more restrictions
upon sentencing discretion, for eliminating disparity "up front" by creating
guidelines for judges to use. Sentencing
guidelines would, it was thought, require
judges to focus upon the most appropriate aims of sentencing, punishment and
incapacitation. Further, reformers argued
for the abolition of parole, for "truth in
sentencing," so that the sentence announced and the sentence served would
be roughly comparable.
By the late 1970s, several states
had adopted gUideline and determinate
sentencing systems. After several attempts, Congress followed suit in 1984.
This reform, in turn, coincides with the
preeminent prison problem of the
1980s: overcrowding. The federal prisons now hold some 50,000 prisoners,
nearly two-thirds more than their rated
capacity of about 30,000. Many state facilities are even worse off. Determinate
sentencing has been one of the causes of
overcrowding: the new federal system
will exacerbate the problem. What we,
the reformers, did not understand sufficiently were the political pressures for
incarceration. "Truth in sentencing"
means longer sentences. Legislators and
the committees and commissions they
appoint work within the public eye; no
one wants to seem "soft on crime."
With relatively long sentences as the
baseline, new guidelines work to increase the time to be served-and
hence add to the population of prisons.
Students of the criminal justice system have known for a long time that actors at different segments of the system

do not have much communication or coordination with each other. Congress
passes laws to increase penalties for certain crimes but does not do a "prison
impact" analysis. Wardens of prisons typically accept all who are sent to them-without thinking either of refusing to
participate in overcrowding or of developing systems tp inform the judiciary of
the problems caused by the sentences
imposed. No lobby effectively communicates the problems of overcrowding; no
one has yet fully accepted the notion
that society should not develop plans to
incarcerate more prisoners than it is
willing to house in constitutionally acceptable conditions.
By the early I970s, the discretionary components of sentencing and parole
(like the discretionary components of
other administrative systems) began to
give both academic reformers and the
system's participants cause for concern.
An impression of Widespread disparity in
sentencing emerged: similarly situated
offenders who seemed to commit similar
crimes were sentenced to serve widely
different periods of incarceration. The
criticism ripened into a series of interrelated complaints: that there were no
standards to guide the sentencing decision, that there were no procedures to
explain or to inform the public and the
prisoners about the reasons for and
length of incarceration, and that there
was unnecessary tension within prisons
populated by prisoners who, when they
began their sentences, had no idea how
long they would actually be incarcerated.
The emergence of these concerns
coincided with the decline of rehabilitation as a sentencing goal. Studies seemed
to demonstrate that nothing workedthat recidivism rates for those who had
taken part in prison "treatment" programs were the same as for prisoners
who had simply "done their time."
Moreover, rehabilitation as a goal was
seen to encourage gameplaying by inmates, attempting to convince their
keepersltreaters that they had been
"cured." Sentiment built for a different
model of sentencing and of parole, one
designed to eliminate disparities and respond to the "real" needs of prisoners.
It was at this juncture that the
United States Parole Board worked a
truly revolutionary change in its own
procedures. Voluntarily, the Board decided to curb its own discretion, to eschew rehabilitation as a goal, to publish
its decision-making criteria, and to base
its decisions about parole release principally on two factors: the seriousness of a
crime and an actuarially-determined
measure of the risk of recidivism for
each individual. The Board assessed
crimes to determine relative seriousness.
-continued on next page
FALL 1987 21

......
,

NAlIIM
Pft150N
PllLlCI

Law Student Interns Recal1

Moments They Won't Porget
Mary McClymont returning from Hawaii and
talking more about seeing Tom Selleck than
the settlement.
Heidi Reavis, 1984
Prisons are ghettos behind bars. My experience at the NPP is one of a long series
of efforts to make an impact on this
problem.
Notable memories include getting that
phone call about "rat tartar" being served to
one of our clients at the D.C. Jail.
Bonnie Barnes, 1985
I remember interviewing Mecklenburg Death
Row prisoners and also discovering that our
calls to Mecklenburg prisoners were subjected to wiretap.... Jack Abbott's First
Amendment Appeal as well as letters, letters,
letters containing cries for help, yells of outrage and dead cockroaches.
'Serena Stier, 1979
My experience at the Prison Project contributed to my belief that even extremely wellmeaning and hard-working people cannot improve the conditions in our society when
1;hese conditions are addressed in a piecemeal fashion. I remember the general esprit
de corps of the Prison Project, contributed
to by its location in a wonderful run-down
building [the Dupont Circle Building] which
was full of other good souls trying their best.

What we have learned from guideline sentencing is not only that guidelines
mean long sentences and overcrowded
prisons. We have also learned that no
one-and most certainly not the authors
of the gUidelines-have any theory about
how much time is appropriate for a
given offender to serve. Sentencing
judges, lawyers, criminologists, all can
describe a crime as serious, agree that
punishment and incapacitation is required, and yet vary widely in the actual
amount of time to be served. Congress
delegated the'decision about how much
time to the Sentencing Commission, a
group of five men and two women,
none of whom has articulated any theory
about how the numbers--the months
and years to be served-were arrived
at.

In the absence of theory, practical
limitations ought at least to inform our
decisions. We are sending more people
to prison than we are Willing to house;
we must institute some mechanism to
insure that the prisons do not become
more inhumane than they already are.
An institution (perhaps we might call it
something other than a "parole board")
is needed to monitor the occupancy
level of prisons and to develop eqUitable
.
release plans to prevent
overcrowding. IIlIIII

Prisoners' Lawyers
Face Critical Issues
Elizabeth Alexander

-continued from previous page

For the recidivism measure, the Board
used such factors as previous criminal record, age at the commission of a first offense, history of drug dependency, and
the like. Based upon these two factors,
the Board drafted "guidelines," which
consisted of a matrix with which its
hearing offices were to determine parole
release dates. Use of the gUidelines was
designed to i!,ccomplish two goals: reduction of disparity stemming from the
time of sentence and increased fairness
in parole decision-making. Further, because the information needed to make
decisions about seriousness of crime and
risk of recidivism were all known at the
time of sentencing, it became possible to
predict (Virtually at the time of sentencing) when a prisoner would be released
on parole. Early prediction was seen as a
desirable by-product of the reform: prisoners who knew upon entry of their release dates would, it was thought, be
less tense, less manipulative.
If legislators and sentencing commissions create harsh sentences but do
not prOVide adequate space in which to
serve them, what response is appropri-

2_2_FA_LL_19_8_7

ate? Without parole boards to act as
safety valves, the only alternatives are
legislative "roll backs," or good time increases, typically wholesale reductions of
sentences done only when the seams are
bursting. Legislative rollbacks have disproportionate effects; those with
shorter sentences receive greater proportionate reductions than do those
with longer sentences. Increases in good
time mock the concept of "truth in
sentencing."
Although once an advocate of parole abolition, I now find that the determinate sentencing experience has led me
towards supporting some form of parole. A vision of a sentencing system
keyed to fairness and equity, with a free
flow of information among the component actors, with research to seek effective patterns of sentencing and to insure
that occupancy never exceeds capacity,
seems unattainable in light of the current
"war on crime." Sadly, the United States
Sentencing Commission acknowledges
that the guidelines it has recently proposed will increase prison populations by
10% (a conservative estimate, in my
View) over the next 10 years and that
other Congressional measures will further increase the population; yet the
Commission seems willing to live with
that result.

......;.

For the past few years there has
been a growing recognition that there is
a crisis in prison overcrowding. Between
1974 and 1985, the total number of
prisoners nationally rose from 200,000
to over 500,000, an increase of over
150%. This increase, which shows no
signs of abating, is occurring in the face
of a declining crime rate and a decline in
the population at the ages of highest risk
of incarceration. Whether this increase
owes more to political trends, to demands for more punitive sanctions for
crime, to demographic factors, to the
country's economic trouble, or to
changes in the mental health system nationally, no one denies that a crisis in rising populations exists.
This mammoth increase in prison
populations has not yet been accompanied by a corresponding increase in
prison capacity. Predictably, prison conditions that were already deplorable
have in many prisons deteriorated

Elizabeth Alexander is a senior staff attorney with the National Prison Project

gravely. This has presented both a danger and an opportunity for the ACLU
and other prisoner rights groups. The
danger is that we will be manipulated
into a solution for particular state or local prison crises that will result in an attempt to build a cell for every potential
inmate. We at the Project have long believed that building cells usually means
more bodies in prison, rather than better conditions; the exhaustive study
commissioned by the National Institute
of Justice, American Prisons and Jails, confirms that:
As a matter of history, this study

has found that state prison populations
were more likely to increase in years
immediately following construction than
at any other time, and that the increases in the numbers of inmates
closely approximate the changes in
capacity.
Id. . at Vol. I, 138.
The opportunity, on the other
hand, is to create an alliance with the
budget-minded and argue that the solution must be alternatives to incarcera-

J

IQ_m.....Dm!1lllmn...
m••._ _. . . . . . .

tion, in part because the public is not
willing to pay the mammoth costs associated with running constitutional prisons
at current population levels.
Ironically, it is the conservatives
who have expressed a willingness to
foot the bill at the same time that positive social programs are systematically
gutted. Disregarding the literature on
the impact of building new prisons, the
Attorney General's Task Force on Violent Crime has endorsed proposals that
could lead to major increases in state
prison capacity. But the prospects for
such conservative expenditures are extremely uncertain. Neither the federal
government nor the states are in a position to take on mammoth spending
initiatives.
Just as the obvious solution for the
ACLU and other prison activists is to
seek population reductions, the obvious
solution for conservatives is to allow for
substantial population increases at minimum cost by allowing conditions in prisons to deteriorate. The major barrier to
the conservative solution is the federal
courts. For approximately the last 25
years, the courts have abandoned the
hands-off doctrine and intervened in increasingly sophisticated ways to enforce
minimum constitutional standards in prisons and jails.
But at least since 1976, the principal role of the Supreme Court has been
to halt the doctrinal expansion of prison
law. Our response, along with that of
other prison litigators, has been the development of increasingly sophisticated
litigation tools mimicking the use of
techniques from other fields of complex
litigation, such as mammoth discovery,
extensive use of experts, and requests
for appointment of special masters.
Among the first consequences of this approach,.was a move away from the types
of due process and first amendment
cases that were used earlier as a means
to get a foot in the prison door. In part,
this shift resulted from disillusionment as
a result of bad Supreme Court decisions. 1 In part, ti'bwever, it represented a
commitment of concentrated litigation
resources to factual demonstration of
the evil of existing prison conditions.
The ability of prison litigators to
'Hudson v. Palmer, 468 U.S. 517 (1984) and Block

v. Rutherford, 468 U.S. 576 (1984) narrowed prisoner due process rights and virtually eliminated
any privacy rights for prisoners. Meachum v. Fano,
427 U.S. 215 (1976) and Montanye v. Haymes, 427
U.S. 236 (1976) also limited prisoner due process
rights; Jones v. North Carolina Prisoners' Union, Inc.,
433 U.S. 119 (1977) signalled a similar pull-back in
the first amendment area In O'Lone v. Estate of
Shabazz-U.S.-the Supreme Court limited religious freedom for prisoners by holding that all that
was necessary to justify restriction was a rational
connection to legitimate governmental interests.

put together the sort of resources necessary to undertake this type of litigation was serendipitously facilitated by
the passage of the 1976 Civil Rights Attorney's Fees Award Act. Under the
statute, successful plaintiffs can shift to
the defendants their attorneys fees,
which in practice means virtually the entire cost of the case.
The virtue of this approach to litigation is that it is very difficult for conservatives to confront. Even in the Supreme Court's most reactionary
opinions, the Court claims to reaffirm
the principle that conditions of confinement in the nation's prisons are subject
to review under the Eighth Amendment's prohibition against cruel and unusual punishment. See Whitley v. Albers,
U.S., 106 S.Ct. 1078 (1986), discussed
infra at n.4.
Thus, the problem for conservatives
is how to articulate a rationale for rejecting such challenges. It would be difficult to state baldly that the Constitution
does not protect prisoners once harm is
shown; the more successful strategy
would be to attack our ability to make a
showing of harm.
In a sense, what conservatives have
needed is a substantive equivalent of
Jones v. North Carolina Prisoners' Union,
Inc., supra, n.l. In that first amendment
case, Justice Rehnquist for the Court had
held that the burden was on the plaintiffs to disprove the predictions of correctional officials that recognizing prisoner first amendment claims will lead to
impairment of security. In Jones, Justice
Rehnquist made deference to prison administrators a virtual principle of
decision.
The more serious problem for conservatives, however, has been to translate the doctrinal thrust of Jones into a
mechanism for precluding factual showings by litigants like the ACLU that have
the resources to undertake complex factual cases.
It is interesting to recall, then, that
the first true totality of conditions case
taken by the Supreme Court came from
a modern federal facility. As a new facility, it was completely atypical of the sort
of institution in which totality suits are
ordinarily brought. Moreover, the Supreme Court tends, with some reason,
to think of federal facilities as generally
benefitting from more enlightened administration than most state or local institutions? Thus, in Bell v. Wolfish, 441
U.S. 520 (1979), the Supreme Court
was setting standards for all totality of
conditions cases in an institution that did
not reflect the physical reality of the
overwhelming majority of jails. Similarly,
2See, e.g., Procunier v. Martinez, 416 U.S. 396,414415, n.14 (1974).

the Court, in Bell, in a decision written
by then Justice Rehnquist, endorsed an
artificial distinction between constitutional minimum standards and actual
practice. When, for example, Justice
Rehnquist for the Court upheld visual
body cavity searches, he did so while explicitly ignoring the' District Court's finding that the sea,rches had been conducted in an abusive manner and that
such abuses were predictable. United
States ex reI Wolfish v. Levi, 439 F.Supp.
114 (S.D.N.Y. 1977). While in Justice
Rehnquist's discus!ion of double-ceiling
in Wolfish, he stressed the atypical
amenities present in the facility, in the
case of body cavity strip searches, he ignored the actual record made by plaintiffs in order to uphold the defendants'
policies.
Although the Wolfish Court had
found double-ceiling constitutionally permissible under the unusual circumstances
of the case, the burgeoning prison populations continued to lead to additional
court orders enjoining double-ceiling.
Again, when the Supreme Court next
considered another double-ceiling case,
it granted certiorari in an unusual case.
The prison at Lucasville, Ohio, is one of
a handful of maximum security prisons
around the country constructed in the
1970s. Most ofthe trial court's factual
findings were favorable to the defendants and the judge's ultimate decision
enjoining double-ceiling was heavily
linked to generalized expert testimony
regarding the negative impact of
overcrowding.
When the Supreme Court did hand
down its decision in Rhodes v. Chapman,
U.S., 101 S.Ct. 2392 (1981), we felt that
the decision was not as damaging to the
cause of prison law as expected. Although the Court had somewhat retrenched regarding overcrowding, the
Court endorsed specific decisions of
lower courts that had granted relief in
totality cases. 3 While the Court reversed
the lower court decision, it did so by focussing on the lower court's failure to
find specific harms at the prison resulting
from the overcrowding and by rejecting
the lower court's reliance on generalized expert opinion.
The Court's opinion in Rhodes
clearly did several things. By limiting the
use of expert witnesses, the Court was
able to continue to articulate a concern
for minimum constitutional standards in
prisons while making it more difficult for
-continued on page 25
'Among the cases cited by the majority and concurring opinions were several Prison Project cases,
including Ramos v. Lamm, 639 F.2d 559 (10th Cir.
1980), Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala
1976), and Duran v. Apodaca, No. 17-72I-C (N.M.
1980).

FALL 1987

23

..

NIl DNA!

•_ _1....-

P N
PROICl

Status Report: State Prisons and The Courts
Compiled from the National Prison Project Status Report as of October 1987.

STATE

FACILITIES

TYPE OF ORDER

ISSUES

Alabama
Alaska
Arizona

Entire Prison System
Entire Prison System
State Penitentiary
Special Maximum Security
Entire Prison System
San Quentin Prison

Court Order
Consent Decree
Consent Decree
Consent Decree
Court Order
Court Order
Court Order
Court Order
Court Order
Court Order

Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Segregation.Overcrowding and Conditions
Segregation.Overcrowding and Conditions
Segregation-Overcrowding and Conditions
Segregation-Overcrowding and Conditions

Court Order
Court Order
Consent Decree

Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Conditions
Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Conditions
Overcrowding and Conditions
Restraint Cells
Overcrowding
Overcrowding
Overcrowding
Overcrowding and Conditions
Conditions
Overcrowding and Conditions
Conditions and Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Facility Kept Open

Arkansas
Califomia

Colorado
Connecticut

Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Mississippi
Missouri
Nevada
New Hampshire
New Mexico
New York
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah

Vermont
Virginia

Washington

Folsom Prison
Soledad Prison
Deuel Prison
Medical Facility'
Institution for Women
Men's Colony
Maximum Security Penitentiary
Hartford Correctional Center
Somers Correctional Center
Montville Correctional Center
Niantic Women's Facility
Correctional Center
Entire Prison System
State Prison·Reidsville
Oahu Community Correctional Center
Women's Prison
Men's Correctional Institution
Menard Correctional Center
Pontiac Correctional Center
State Reformatory at Pendleton
State Prison at MIChigan City
State Penitentiary
State Penitentiary
State Penitentiary

~~;~e~~~~;t~~t7tution

for Women
State Penitentiary
State Prison
State Penitentiary
House of Correction
Reception, Diagnostic and Classification Center
Correctional Institution at Walpole
Huron Valley Women's Facility
Entire Men's Prison System
State Prison of Southern Michigan
Entire Prison System
State Penitentiary
State Prison
New Addition to State Prison
State Prison
State Penitentiary
Long Island Correctional Facility
I3 Facilities in South Piedmont Area
Craggy
Correctional Center for Women
Southern Ohio Correctional Facility
Orient Correctional Institution
Ohio State Reformatory
State Penitentiary
Entire Prison System
State Penitentiary
Correctional Institution at Muncy (Women's)
""Correctional Institution at Graterford
Entire Prison System
Entire Prison System
State Penitentiary
Entire Prison System
Entire Prison System
State Prison
Vermont Prison
Powhatan Correctional Center
Mecklenburg Correctional Center
State Penitentiary
State Reformatory
State Penitentiary

West Virginia
~~~~~\f:n~~ectional Center
Wisconsin
Waupun Correctional Institution
Wyoming
State Penitentiary
District of Columbia Entire lail System
Severa Facilities at Lorton
Puerto Rico
Virgin Islands

24

Commonwealth Penitentiary
Entire Prison System
Golden Grove Correctional Facility

Court Order
Court Order
Consent Decree
Court Order
Court Order
Consent Decree
Court Order
Court Order
Court Order
Court Order
Court Order
Court Order
Consent Decree
Consent Decree
Consent Decree
Court Order
Court Order
Court Order
Consent Decree
Consent Decree
Consent Decree
Court Order
Court Order
Consent Decree
Court Order
Court Order
Consent Decree
Court Order
Court Order
Consent Decree
Court Order
Consent Decree
Court Order
Consent Decree
Consent Decree
Court Order
Court Order
Court Order
Court Order
Consent Decree
Court Order
Court Order
Court Order
Consent Decree .
Prison Closed
Consent Decree
Consent Decree
Consent Decree
Court Order
Court Order
Court Order
Court Order
Consent Decree
Court Order
Consent Decree
Court Order
Court Order
Court Order
Court Order

Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding ad Conditions
Conditions and Overcrowding
Overcrowding and Conditions .
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Conditions
Conditions
Protection from Harm
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions
Overcrowding and Conditions

OTHER

Stay pending appeal
Court relinquished jurisdiction

Utigation pending
Utigation pending
Utigation pending
Prison ordered closed
Utigation pending
Utigation pending

Court ruling for prison officials reversed and remanded in part

Facility kept open to ease overcrowding and unconstitutional
conditions at other facilities
Utigation pending
Utigation pending

Court decision to relinquish jurisdiction on appeal
On remand court held no 8th Amendment violations
Utigation pending
Utigation pending

Rehearing en bane argued 1/87

Dismissal of complaint affirmed on appeal
Utigation pending
State case
Court relinqUished jurisdiction in 1983

FALL 1987
.:lIIIIfllil'1I!If1ll!!.-lIlI1III1III

••

-continued from page 23

plaintiffs to show that constitutional
standards had been violated. In short,
Rhodes was a partial substantive equivalent in the law for the procedural burden placed upon plaintiffs in Jones, supra.
In essence, the Court raised the ante in
prison litigation by requiring proof directly related to harm from overcrowding at the particular institution in
question.
But Rhodes also raised as many
questions as it answered. First, one can
view with a certain amount of skepticism the Court's characterization of Lucasville as an essentially benign institution. The plaintiffs below had attempted
unsuccessfully to broaden the case from
a simple overcrowding suit to raise
other totality of conditions claims. Had
they been able to do it, it is possible
that the judge's ultimate findings would
have presented the institution in a different manner. Justice Marshall's dissent argues that the majority had misread some
of the trial court's findings to make
them appear more favorable to the defendants. 101 S.Ct. 2412, n.6. Moreover,
one cannot keep from believing that the
evidence of harm in Lucasville was there
but that for some reason, possibly because of overconfident reliance on the
generalized expert testimony, the plaintiffs did not present it.
Still, Rhodes continues to present
critical issues to prison Iitigators. Rhodes
left unresolved numerous evidentiary
questions. To what extent had the
Court created special standards for the
receipt of expert testimony that do not
apply in other areas of the law? Where
there is a scientific body of evidence
about, for example, the public health effects of overcrowding of a quality that
would be accepted in other contexts,
must each plaintiff in an overcrowding
case nonetheless prove that the predicted impact on communicable diseases
and stress-related diseases has in fact occurred at the institution in question,
possibly with an appropriately controlled
study? Will the-Supreme Court ultimately require proof that serious injury
has occurred to identifiable individuals
rather than proof that conditions make
the probability of serious harm
overwhelming?
Since Rhodes, the Supreme Court
has not taken any other prison overcrowding cases:' Beyond the specific
questions raised by Rhodes, however,
'Whit/ey v. Albers, 106 S.Ct. 1078, supra, is the
only major Supreme Court post-Rhodes Eighth
Amendment conditions of confinement case. In

Whitley, in a doctrinally confused opinion, the
Court exempted virtually all instances of official
use of force during prison disturbances from federal court review.

We at the Project have long
believed that building cells usually
means more bodies in prison,
rather than better conditions.
is the implicit hostility the Court expressed toward prison litigation in general. Just as we suspect that there really
was evidence of concrete harm in Lucasville, the general importance of Rhodes
is that cases can be lost because the
plaintiffs lack the resources to find and
prove the harm. In short, it is likely that
cases will succeed or fail not on the
basis of how unconstitutional the conditions are, but on the basis of how
resourceful the lawyers and experts are.
The National Prison Project's annual Status Report lists the status of overcrowding and other totality of conditions litigation in every state and the District of
Columbia (see Table, p.24).
Without the promise of attorneys
fees or dependable funding, very few organizations can underwrite the costs of
contemporary conditions of confinement
prison litigation. In Pugh v. Locke, 406
F.Supp. 318 (M.D.AIa. 1976), the case in
which the concept of totality of conditions litigation was developed, the entire
liability trial cost apprOXimately four
thousand dollars. In contrast, the Department of Justice, in its last major
prison case before the Reagan era, reportedly spent over a million dollars in
litigation costs in Ruiz v. Estelle, 503
F.Supp. 1265 (S.D.Texas 1980).
In short, the major impact of recent
Supreme Court cases, and Rhodes in particular, has been to increase the necessity for resource-intensive litigation. To
the extent that plaintiffs do have the resources available, ironically Rhodes increases the risks to defendants by increasing the expenses that may
ultimately be shifted to the defendants.
This puts some pressure on defendants
in some circumstances to negotiate with
plaintiffs rather than litigate. Because of
the federal courts' increasing conservativism, the Prison Project has attempted
to concentrate more thought into strategies to persuade defendants to settle
before trial, as well as more innovative
settlement and compliance mechanisms.
There is a harsh message for the
plaintiffs involved in prison litigation
here. The major result of cases like
Rhodes and Whitley is that totality of
conditions cases, including in particular
overcrowding cases, are virtually impossible to win and generally should not be
attempted without substantial financial
resources and experienced counsel.
There may be situations in which a particular Department of Corrections invites a lawsuit in order to have a

weapon to force the legislature to fund
the elimination of unconstitutional conditions. But invitations to engage in such
litigation should be viewed with considerable suspicion because the resulting
consent decree could serve as legal protection for any unconstitutional conditions not remedied. Nor should a plaintiffs lawyer b~ manipulated into helping
the Department of Corrections obtain
funding for new prisons. Finally, since
often the most extensive part of the litigation involves enforcing the order, the
plaintiffs' lawye.-.must have the financial
resources and litigation skills to pursue
compliance with the consent decree.
A far disproportionate percentage
of the successful prison plaintiffs are represented by repeat players such as the
Prison Project, the NAACP Legal Defense Fund, the Southern Prisoners' Defense Committee, and the New York
Legal Aid Prisoners' Rights Office,
among others.s
Because, then, the few relatively
well-financed and staffed prisoners' rights
offices necessarily play such an important
role in prison litigation, it is particularly
disheartening to recognize that the ability of such offices to continue undertaking complex litigation requiring substantial financial resources is under direct
attack. On the one hand, in every session of Congress bills are introduced to
cut back on the Attorney's Fees Act.
Since 1976, the Project and other
groups litigating on behalf of prisoners
have come to count on attorneys fees to
provide a significant portion of each
group's total budget. Without the shifting of the expenses of litigation made
possible under the Act, it is very questionable whether these groups can continue to finance resource-intensive
litigation.
This is not to say we should reduce
our commitment to prison litigation.
The continuing dreadful conditions demand, instead, an even greater level of
commitment. Unless the ACLU, and our
allies, can continue to prOVide the necessary litigation resources, the crisis in
prison litigation will match the crisis in
the prisons. I11III
5Until a few years ago, 1would have listed the Department of Justice Special Litigation Unit, but the
Special Litigation Unit under William Bradford
Reynolds' leadership no longer plays a significant
positive role in prison litigation. For example, recently the Department of Justice failed to support
a contempt order regarding overcrowding against
the State of Michigan in one of its own cases. See,
Alexander, "U.S. v. Michigan: An Update from the
Battlefield," NPP JOURNAL, No. 12, Summer 1987.
The contempt order was entered at the urging of
the amicus curiae, including the Prison Project and
the Michigan ACLU affiliate. Obviously, too, the
cuts in the Legal Services Corporation budget have
eliminated potential plaintiffs' attorneys.

FALL 1987

25

1

to contribute to Attica
Brothers Defense Fund.

15 Years of

Barefoot v. Richardson.
Disciplinary due process in
federal prison.

1975

1976

*Pugh v. Locke, james v.
Wallace. Alabama. Challenge

Haymes v. Montanye. New

to totality of conditions in
statewide prison suit.
Black v. Saxbe. West Vir1974
ginia. Challenge to practices
York. Due process in jail disListed below are all of the
Pell v. Procunier. California. at federal prison for women.
ciplinary hearings in all county Right of press access to indi- Aikens v. Lash. Indiana.
cases filed by the National
Prison Project, indicating the jails.
vidual prisoners.
Challenge to censorship of litstate in which they were filed
Sero v. Preiser. New York. erature for state prisoners.
and the issues involved. Those
Statewide challenge to treat- Marion County jail Incases preceded by an asterisk 1973
ment of youthful offenders.
mates v. fads. Indiana. Chal(*) are still in active litigation. Coxe v. Turley. Kentucky.
lenge to conditions in county
Berenguer v. Froehlke.
Challenge to non-lawyer
Kansas. Challenge to practices jail.
judges having the power to
and lack of due process for
*Inmates of D.C. jail v.
1972
hear juvenile cases which rejackson. District of Colu~­
military prisoners.
Scruggs v. Gaffney. Kansas. sult in incarceration in county Doe v. Virginia. Virginia.
bia. Challenge to totality of
Disciplinary due process in
jails.
Challenge to behavior modifi- conditions at large urban jail.
O'Neal v. Oswald. New
cation programs funded by
state prison.
McCray v. Burrell. MaryWallace v. Kern. New
York. Challenge to state pris- LEAA in state prisons.
land. Challenge to requireYork. Procedural and substan- oner transfer to behavior
ment that prisoner must exCarr v. Thompson. New
tive rights of pre-trial detain- modification program without York. Challenge to restrichaust administrative remedies
ees in Brooklyn House of
due process hearin~.
before filing civil rights action.
tions on employment of exPeterson v. SLA. New York. offenders.
Grunderstrom v. TDC.
.
Detention.
Novak v. McCune. Virginia. Challenge to restrictions on
Starnes v. McGuire. DisTexas. Challenge to state
Challenge by federal prisoners employment of ex-offenders.
trict of Columbia. To enforce prison regulation prohibiting
Roberts v. Virginia Board
right of federal prisoners
prisoners from providing legal
to lack of due process afof Parole. Virginia. State
forded by U.S. Board of
assistance to other prisoners.
throughout the country to
prisoner's challenge to lack of sue Federal Bureau of Prisons Grosso v. Lally. Maryland.
Parole.
due process in parole hearing. in D.C. federal court.
Carter v. McGinnis. New
Challenge to lack of equal
Arey v. Oliver. Virginia.
York. Disciplinary due proBailey v. Mandel. Maryland. programming for state's
State prisoner challenge to
Challenge to use of state pris- women prisoners.
cess in state prison.
censorship of mail and
Corley v. Amico. New
oners for non-therapeutic
publications.
York. Due process in parole
medical experiments.
Clonce v. Richardson. Mis- National Prison Project v.
revocation hearings.
souri. Challenge to experiParman v. District of CoSigler. District of Columbia.
lumbia. District of Columbia. . mental behavior modification To require U.S. Board of Paprogram in federal prison.
Prisoners' right to marry.
role to be subject to FreeLacey v. Gaver. Ohio. Chal- Stinnie v. Gregory. Virginia. dom of Information Act.
Statewide jail. regulations and
lenge to officer brutality in
Taylor v. Manson. Connectconditions.
state prison.
icut. Challenge to use of elecRobbins v. Kleindienst. Dis- MacMillan v. Carlson. Dis- tric shock therapy to treat
trict of Columbia. Right of
trict of Columbia. Federal
state prisoners.
author to interview federal
prisoners' right to due proGarnes v. Taylor. District of
prisoner for planned book.
cess hearing before punitive
Columbia. Challenge to conAdams v. Carlson. Illinois.
transfer.
ditions of confinement and
*Abbott v. Richardson. Dis- Challenge to lack of disciplipractices for dealing with
nary due process, conditions
trict of Columbia. National
women prisoners.
of segregation and interferclass action on behalf of fedWolff v. McDonnell. Neeral prisoners challenging cor- ence with attorney-client acbraska. Due process in state
respondence and publications cess at federal prison.
prison disciplinary hearings
Butler v. Preiser. New
censorship.
(amicus).
Wilkinson v. Skinner. New York. Right ofstate prisoners

Litigation History

The Limits of Parity in Prison
Judith Resnik
The fifteenth anniversary of the National Prisoll' Project is an appropriate
time to mark the progress-most of it
during the last 15 years-that women
prisoners have made in turning our attention to the problems they face. In
cases around the country, in lawsuits
filed in Connecticut, New York, Pennsylvania, Washington, D.C., Virginia,
West Virginia, North and South Carolina, Louisiana, Florida, Kentucky, Georgia, Michigan, Idaho, North Dakota, New
Mexico, California, and Hawaii, women
offenders and their advocates are challenging prison systems that do not pro-

Judith Resnik is Professor of Law at the
University of Southern California Law
Center.
26

FALL 1987

vide for women. In an impressive series
of cases, courts have articulated a right
of "parity of treatment," that women be
given roughly comparable rights of access to educational, rehabilitational, and
vocational programs, to legal and medical services, as those provided to men
prisoners.
But the fifteenth anniversary of the
Prison Project is not only an occasion
upon which to note that women--invisible members of the prisons I5 years
ago--have made strides towards visibility. It is also an occasion upon which to
comment on the limits of "parity of
treatment," of using men as the yardstick by which to measure what services
ought and must be provided to women.
A bit of history is needed. In the

York. Challenge to state prisoner's punitive transfer for
engaging in constitutionally
protected conduct.

*Palmigiano v. Garrahy.
Rhode Island. Challenge to
totality of conditions in statewide prison suit.
*Grubbs v. Bailey. Tennessee. Challenge to totality of
conditions in statewide prison
suit.
Thompson v. Bond. Missouri. Challenge to state statute which proclaims that state
prisoners are civilly dead and
have no right to sue, contract, etc.
Liles v. Ward. New York.
Challenge to behavior modification program for women
prisoners in state prison.
Gee v. Mandel. Maryland.
Challenge to state's "defective delinquent" statute under
which prisoners could be held
in state prison indefinitely.
Dodge v. Herschler. Wyoming. Challenge to state practice of confining women in
out of state prisons.

middle of the 19th century, reformers
who were concerned about the violence
and difficulties of prison life sought to insulate women prisoners by creating distinct institutions, ostensibly "for"
women. The relatively small number of
women prisoners were placed either in
isolated institutions (often euphemistically called "farms") or were segregated
in separate wings of men's facilities. In
almost every state, all women were
lumped together--classified exclusively
on the basis of their sex-and confined
in the "women's prison."
Some hundred years later, a new
wave of reformers, whose concerns
were shaped by the women's movement, looked at "women's prisons."
What they saw were woefully impoverished conditions. In 1979 and 1980, the
Comptroller General of the United
States issued two reports, "Female Offenders: Who Are They and What are
the Problems Confronting Themr" and

Bustos v. Herschler. Wyomingo Challenge to conditions
and practices at state prison.

Challenge to restrictions on
employment of ex-offenders.
Ramos v. Lamm. Colorado.
Challenge to totality of conditions in statewide prison case.

rights action (amicus).
Jones v. Diamond. Mississippi. Challenge to conditions
and practices in local jails
(amicus).
Tucker v. Halifax County.
1977
Laaman v. He/gemoe. New
Virginia Damage action on
Hampshire. Challenge to to1979
behalf of family of young pris*Arias v. Wainwright. Flor- oner who committed suicide
tality of conditions in state
prison.
in unattended county jail.
ida To require State ComHarris v. Cardwell. Arizona missioner of Corrections to
Rhodes v. Chapman. Ohio.
Challenge to totality of condi- promulgate and enforce mini- Challenge to overcrowding in
new state prison (amicus).
tions in state prison.
mum standards for local jails.
Tucker v. Hutto. Virginia
McKnight v. Virginia. Vir*Duran v. Apodaca. New
Medical malpractice by state
Mexico. Challenge to totality ginia Damage action on beprison doctors and officials
of conditions in statewide
half of prisoner who suffered
resulted in largest damage
prison case.
serious injuries because of
award ever won by state
Terry D. v. Rader.Oklamedical and psychiatric neghoma Right to treatment and lect in state prison.
prisoner.
Kepner v. Grzegorek. Vir- to least restrictive alternative
ginia Damage action on befor all juveniles in the state.
half of youthful federal pris1981
National Prison Project v.
oner who was assaulted while Carlson. District of ColumRuiz v. Estelle. Texas. Apin protective custody.
bia To require Federal Bupropriateness and authority of
Stewart v. Rhodes. Ohio.
reau of Prisons to make pub- trial judge to appoint Special
Master in statewide prison
Challenge to totality of condi- lic an index of all final
tions in state prison.
dispositions of administrative
conditions case (amicus).
*Shrader v. White. Virginia
grievances.
Challenge to totality of condiJacobs v. Britten. Alabama
1978
Challenge to conditions and
tions at state prison.
DiMarzo v. Cahill. Massapractices for state death row Canterino v. Wilson. Kenchusetts. To require state
prisoners.
tucky. Challenge to conditions
Commissioner of Corrections Picariello v. Carlson. Penn- and practices at state womto promulgate minimum stan- sylvania Damage action on
en's prison.
dards for local jails.
behalf of group of federal
*Brown v. Murray. Virginia.
Greenholtz v. Inmates of
prisoners who were brutalChallenge to various practices
ized by prison officials.
and guard brutality at state
Nebraska. Nebraska Due
process in state parole hearFreeman v. Georgia. Geor- super-maximum security
ings (amicus).
gia Challenge to the involun- prison.
Bell v. Wolfish. New York. tary drugging and transfers to Doe v. Buford. District of
Challenge to overcrowding
mental units without a hearColumbia. Damage action on
and various practices in feding at state women's prison.
behalf of 12 year old placed in
eral pre-trial facility (amicUS). Maiorca v. Lamb. Nevada
a jail cell with older prisoner
National Prison Project v. Lack of medical care in
with history of assaultive
Federal Bureau of Prisons. county jail.
behavior.
District of Columbia To require Federal Bureau of Pris1980
ons to comply with Adminis- Lovell v. Brennan. Maine.
1982
trative Procedures Act.
Challenge to totality of condi- *Witke v. Crowl. Idaho.
Cordero v. Levi. District of
Challenge to conditions and
tions at state prison.
practices at state women's
Columbia Challenge to puni- Jenkins v. Brewer. New
tive conditions of confinement York. Challenge to requireprison.
of 5 Puerto Rican Nationalist ment that state prisoners
*Bobby M. v. Graham.
'prisoners.
Florida Statewide challenge
must exhaust administrative
Rogers v. Brady. Mississippi. remedies before filing civil
to conditions and practices at

"Women in Prison: Inequitable Treatment Requires Action." The reports articulated the emerging themes: "With
few exceptions, neither jails nor prisons
... today do more than warehouse ...
female inmates; physical plant, staffing
services, and p!;ograms are ... sadly inadequate." "Women in correctional institutions do not have access to the
same types of facilities, job training, jobs
in prison industries, and other services as
[do] men prisoners."
Lawsuits became one vehicle for
the expression of inadequacy of treatment in prisons "for" women. Two class
actions, Glover v. Johnson, 478 F.Supp.
1075 (ED. Mich. 1979), and Canterino v.
Wilson, 546 F.Supp. 174 (W.D. Kentucky
1982), provide examples of the disparate
treatment of women and of courts' responses to the inequalities. In Glover,
women demonstrated that they were
permitted fewer job-training opportunities than were men. Women were of-

state juvenile training schools.

Series of damage actions on
behalf of detainees who were
sin. Challenge to totality of
sexually assaulted in large
conditions at state prison.
county jail.
Clark v. District of Colum- *Garza v. Heckler. Texas.
bia. District of Columbia
Challenge to amendments to
Challenge to conditions and
Social Security Act which expractices at behavioral adjust- elude incarcerated felons from
old age benefits.
ment unit of state facility for
youthful offenders.
*Spear v. Ariyoshi. Hawaii.
*Shapley v. O'Callaghan.
Challenge to totality of condiNevada Challenge to totality tions in state men's and womof conditions at state prison. ' en's prison.

*De/gado v. Cody. Wiscon-

1983

*Ne/son v. Leeke. South

1985

*Jerry M. v. District of CoCarolina Challenge to totality /fImbia. District of Columbia

of conditions in statewide
prison suit.
Union County Jail Inmates
v. Buono. New jersey. Challenge to conditions at large
county jail (amicus).
Akers v.Landon. Virginia
Challenge to state prison policy automatically denying
mothers access to newborn
babies.
*Flittie v. Solem. South Dakota Challenge to totality of
conditions at state prison.

1984
*U.S. v. Michigan. Michigan. Intervened in totality of
conditions case brought by
U.S. Department of justice
against state prison system
(amicus).
*Black v. Ricketts. Arizona
Challenge to practices and
policies in large segregation
unit of state prison.
*Knop v. Johnson. Michigan.
Challenge to totality of conditions case in statewide prison
suit (in conjunction with U.S.
v. Michigan).
Mohler, et al. v Prince
Georges County. Maryland.

fered work in only five minimally remunerative areas (such as food services)
while men had access to some 20 vocational programs. Men printed a newspaper; women made personal calendars.
Men learned welding; women did small
handicrafts-again for personal use. Men
apprenticed as machinists, tool-and-die
makers and electricians and were permitted to practice those trades in prison
industries. There were no apprentice
programs for women, no industries in
their prison. Based upon the constitutional right of equal protection, the federal district court concluded that "significant discrimination against the female
prison population" existed.
In Canterino, women at the Kentucky Correctional Institution for
Women challenged the behavior control
system to which all women, but none of
the men, who entered the prison system
were subjected. As women entered the
prison system, they were all strictly lim-

Challenge to conditions and
practices at District's juvenile
facilities.
Whitley v. Albers. Pennsylvania Challenge to deadly
force standard in state prison
emergency (amicus).

*Washington v. Tinney.
Maryland. Challenge to totality of conditions in state
prison.
*Johnson v. Galley. Maryland. Challenge to totality of
conditions in state prison.

1986.

Re: Petition to the United
Nation's Commission on
Human Rights. United Nations. Complaint on behalf of
Cuban refugees detained in
Federal penitentiary.
*Epps v. Martin. North
Carolina. Challenge to totality
of conditions at state prison.

*/nmates of Occoquan v.
Barry. District of Columbia.
Challenge to totality of conditions at 3 District prisons.
O'Lone v. Shabazz. New
jersey. Right of Muslim prisoners to attend congregate
religious services (amicus).

This table was compiled by Julia Cade.

ited in their access to visits, recreation,
and services. Prison officials limited
newly-admitted women (regardless of
the nature of their crimes) to only one
five-minute telephone call per month.
They forbade newly-admitted women to
place pictures of their children on the
walls of their cells. These women had no
access to the yard, while men---even
those in maximum security facilitieshad use of the yard on a regular basis.
The trial judge concluded: "women
[prisoners] are restricted in the exercise
of normal priVileges [bedtime hours,
dress, access to visits, phone calls] ...
while men [prisoners] are not." In Kentucky, as in Michigan, federal courts
found violations of United States constitutional guarantees and ordered comparable treatment.
The problems of comparative disadvantage for women are not limited to
Michigan and Kentucky. In almost every
-continued on next page
FALL 1987

27

I_

PIIl51
PIILICl

female prisoners come from the Northeast, the Great Lakes, and Southern California, all of the women in the federal
system are placed in one of five facilities:
Alderson, West Virginia; Lexington,
Kentucky; Fort Worth, Texas; Morgantown, West Virginia; and Pleasanton,
California. Most federal women prisIn 1976 the Prison
oners are, thus, inevitably far away from
Project published The
the communities in which they had lived,
Prisoners' Self-Help Litiand their visitors--<hildren, family,
gation Manual, a practifriends, lawyers-if they come at all,
cal book which enabled
must travel at great expense. The probprisoners to redress
lems faced by women in the federal
their legal grievances
on their own. The
prison system have also given rise to a
lawsuit, Butler v. Meese, Civ. No. 84book was written by
2604, now pending before the United
James L. Potts, an exprisoner who had done a lot of legal
States District Court for the District of
work while in federal prison, and was
Columbia.
While recent United States Suedited by Alvin J. Bronstein, NPP Director. With the assistance of foundation
preme Court decisions have signalled
grants, the Prison Project was able to
substantial retreat from the concern for
prisoners evidenced by that Court in the
distribute 20,000 copies of the book to
prisoners around the country before it
1970s, the doctrinal development of parwent out of print.
ity of treatment seems relatively secure.
The first Prisoners' Assistance DirecAlthough the Court is likely to defer to
tory was published in 1977 by the Prison
prison officials' claims on security, many
Project. It is a compendium of organizaof the gross disparities between women
tions and people, listed by individual
and men are difficult to justify on secustate, who provide assistance to prisrity grounds. For example, if men can
oners and ex-offenders. The Directory
learn trades and work in prison indushas been updated periodically and the
tries, why not women? Further, not all
seventh edition was published in 1986.
of the litigation is based on federal conIn 1984 the NPP published A Primer
stitutional guarantees: in some instances,
for Jail Litigators which provides a steplawsuits founded in state constitutional
by-step guide to litigating cases involving
provisions and statutes have helped to
local jails.
provide better treatment for women
In the fall of 1984, the NPP began
prisoners.
publication of its quarterly JOURNAL. It
But even if parity of treatment can
contains articles about prison litigation,
survive the indifference (or hostility) of
legal and substantive issues confronting
some members of the United States Supreme Court to prisoners' rights, parity
people in the field as well as a series of
topics such as AIDS in prison, superof treatment does not solve all of the ismaximum security prisons, alternatives
sues faced by women prisoners. A first
to incarceration, women in prison, capiproblem is one common to all equal
tal punishment, and privatization of
protection claims: the claim is based
prisons.
upon comparison between two groups.
Equality can be achieved either by bringing one group up to the other or by re-continued from previous page
ducing the benefits of the group that
jurisdiction in which women are housed,
was "better off." In the prison context,
disparities-'Sometimes seemingly endless this ratchet aspect of equal protection is
disparities-exist. Data from the federal
particularly painful. No one claims that
prison system demonstrate the problems men prisoners have it "good" in prison:
on a national scale. The United States
all the arguments are about degrees of
Bureau of Prisons operates more than
deprivation. A second difficulty with par40 facilities for convicted prisoners.
ity is that the concept is tied to reMore than 12 are "camps," the least re- ·sources. As overcrowding increases and
strictive settings available to federal pris- interest in rehabilitation diminishes,
oners. No women are housed in camps,
many vocational and educational prodespite the fact that the Bureau has esti- grams are reduced. If programs provided
mated that a large percentage of women by men set the standard and those promeet the eligibility requirements for asgrams are ended because of budget cuts,
signments to camps, and despite the fact parity is achieved by providing nothing
that many women's advocates have refor women or men.
peatedly pointed out the absence of
Moreover, the problems of parity
camps for women. Moreover, although
are not limited to the ratchet effect and
population studies by the Bureau have
scarce resources. A third difficulty is that
indicated that the preponderance of its
parity assumes that what is provided to
28

FALL 1987

men is sufficient to set the standard for
what ought to be provided to women.
Here--as in other areas in which feminists have raised concern-the male
model may be a useful way to begin a
conversation. "Treat us like them" helps
to obtain attention to the failure to
treat women fairly. But equal treatment
need not be translated into treatment
"like them"-like men. Women have'
some needs that differ from those of
men. In one of the opinions issued in the
Canterino case, the trial judge noted this
problem in the context of legal services.
The judge concluded that, because of
women's history of not using law libraries, the right of access to courts for
women demanded different services than
those provided for men prisoners. Another easy example is health; medical
care based on the needs of men fail to
provide adequate care for women. Further, unlike men prisoners, the majority
of women who enter prison are responsible for children. While cultural developments may someday bring us to a
world in which women and men share
equally in parenting, today women are
primarily responsible for children. Parity
of treatment does not help those who
are mothers and prisoners.
Claims of equal treatment have special poignancy in this culture. We should
celebrate the information developed
over the past 15 years about women in
prison and the strides made in articulating legal protection for women prisoners. As in any other area of litigation
or statutory regulation, we must acknowledge, with impatience, the slowness and the limited implementation of
the principles developed. And we must
also remember that equal treatment
should not, simplistically, be translated to
mean: fair treatment of prisoners is the
treatment accorded, historically, to
men. III

Medical Care: Past and Future
Nancy Dubler
The label "prison doc" has historically
and accurately been a term of opprobrium. For decades the detritus of the
medical profession with few exceptions
practiced on persons despised by society
and condemned by that society to punishment. Whereas it is difficult to measure and evaluate the emotional and psychological pain of imprisonment, it is
relatively easy to assess the physical signs
of unaddressed trauma and the results of
neglected medical needs. When the
"hands-off' doctrine fell, lack of adequate medical care was one of the first
areas of prison life to receive scrutiny.
The reasons for this examination
were many. First, instances of inexcusable care were so shocking: a terribly sick
inmate found dead with a dry intravenous line, eaten by maggots; surgery
performed by inmates; a ten hour drive
to reach emergency care. Second, because the deprivations of care were so
clear, the distance from any decent and
justifiable standard of medical practice
was readily apparent. Third, although access to health care has never been a legal right in this country, health care has
long been recognized as a good distinguishable from those commodities and
services which are exclusively subject to
and regulated by a free market economy-in sum, health care is different.
Legal Developments

In the early I970s a range of cases
in the federal courts began to expose
the terrible medical neglect amounting
to the abuse of prisoners. The struggle
in these cases centered not on proof of
mistreatment but concerned the development of a legal standard which could
permit federal courts to differentiate between constitutionally prohibited deprivations of care and charges of medical
negligence which are clearly reserved to
the jurisdictiori' of the state courts. Early
cases suggested therefore that if "some"
care had been provided it would preclude the finding of constitutional inadequacy-a very minimal standard; other
cases suggested that "reasonable" care
was necessary to acquit institutional responsibility. Almost all of these cases
harkened back to the Eighth Amendment. It was argued that to put persons
in prison, where they could neither gain
access to nor provide for their own
care, and not to provide that care, had

Nancy Dubler is the Director of the Division of Legal and Ethical Issues in Health
Care at Montefiore Medical Center, Bronx,
NY.

in the past and must in the future, result
in precisely the kind of pain, suffering,
anguish and humiliation which the Eighth
Amendment was designed to prohibit.
The deprivation of medical care, it was
argued, produced precisely the cruel and
unusl,Jal punishment precluded by the
Constitution.
It is interesting to note, in an era in
which the "intent" of the framers of the
Constitution has suddenly become important and relevant to legal interpretation, that the jurisprudence of the Eighth
Amendment had developed according to
converse principles. Cases had held explicitly that the Eighth Amendment does
not apply only to those instances of
cruel and unusual punishment in existence in the late Eighteenth Century but
that the aegis of the amendment changes
with contemporary standards of decency
and dignity. Thus the amendment may
prohibit punishments which seem disproportionate and excessive and those
which offend a more recently developed
moral norm. Whereas the provision of
medical care was of scant import in the
I780s when physicians could diagnose
and comfort but could rarely intervene
without extraordinary pain and distress,
it was a most different matter in the
I970s when medicine could often bring
alleviation of suffering, disease, and the
accompanying pain. The provision of
medical care could not have been argued
to be morally mandatory when its benefits were so uncertain, but in an age of
successful medical technologies and interventions, the radical disjuntion of
practice within and outside of the walls
was clearly unacceptable.
In 1976, in the case of Estelle v.
Gamble, 97 S. Ct. 285, 290, 429 U.S. 97,
104-105(1976) the Supreme Court in
recognition of the specialness of medicine and in light of the jurisprudence of
the Eighth Amendment held that:
Deliberate indifference to the serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth
Amendment This is true whether the indifference is manifested by prison doctors in their response to the prisoner's
needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with
treatment once prescribed.
This standard, criticized by many at
the time as insufficiently protective, has
proved over the last decade to be remarkably flexible as an instrument for
bringing direct change in the quantity
and quality of prison and jail health ser-

vices. For example, one Federal Circuit
held that a finding of "deliberate indifference" was not dependent on intent to
harm but could be proved by a showing
of systemic deficiencies, e.g. a set of infirmary cells for sick women, locked at
the end of a locked corridor beyond
which a nurse sat, with no method for
communicating between the cell and the
nurse. Todaro v. Ward, 565 F.2d 48 (2d
Cir. 1977). Other cases addressed more
broadly the complex issues of constitutionally adequate access to care in a
locked community fashioning protections
for mental health care, dental care, special care for women and children, and
staffing issues. Thus the various Federal
circuits have continued to redefine the
contours of the "deliberate indifference"
standard.
Emerging Health Standards

At the same time however other
forces were at work helping to change
the practice of the "prison doc." In
1972 the AMA had established a small
project designed at first to survey the
medical care in the nation's jails. The
findings were shocking. Out of over
1,500 rural and urban jails who answered
the survey questionnaire less than 50%
had any regular sick call, and 6% had no .
medical service available, not even a first
aid kit. Despite the fact that jail inmates
have particular problems, i.e, they are
likely to have experienced recent traumatic injury, and are subject to high
rates of drug and alcohol withdrawal,
most jails had no medical screening on
premises and no arrangements to permit
prompt and effective medical intervention in an emergency.
The AMA survey led in the next
few years to the establishment of a project to use the questionnaire results and
subsequent field surveys to draft a set of
minimum standards for health care in
jails. Not surprisingly as this was a physician-centered project, the role of the
physician was central to the organization, management and supervision of the
jail health service. These standards were
published in 1978.
In 1976, the American Public
Health Association published the very
first set of National Standards on Health
Services in Correctional Institutions. This
was a ground-breaking enterprise which
garnered the little experience then available in correctional health care (mainly
the perceptions of a few physicians who
had become involved in care in San Francisco, New York, and Boston), combined
this with the extensive knowledge about
public health principles and environmental requirements, and set standards
which were justified by sound public
health and medical principles.
-continued on next page
FALL 1987

29

..

NAT.

P N

PRJECl

WHERE ARE THEY

-continued from previous page

Now?

Norm Townsend, 1975. Deputy Stote Public Defender, Steamboat Springs, CO.
Howard Friedman, 1975-76. Partner, Avery &
Friedman, a small litigation firm in Boston, MA focusing on police misconduct litigation, criminal defense,
personal injury actions and civil rights cases on behalf
of prisoners.
Ira Burnim, 1976. Legal Director, Children's Defense Fund, Washington, D.C.
Michele Ann Zavos, 1977-78. Dolkart & Zavos,
Washington, D.c.. Practice in areas of employment,
sexual harassment, real estate, probate, military,
small business and domestic relations.
Dale Drozd, 1978. Partner, Blackman & Drozd,
in Sacramento, CA. which limits its practice to the
defense of criminal cases at the trial and appellate
levels in both the State and Federal Courts.
Rick Seligman, 1979. Sole practitioner in Washington, D.C., handling civil rights litigation.
Serena Stier, 1979. Adjunct Professor at the College of Law and School of Social Work at the University of Iowa. Ms. Stier was a psychologist before attending law school and has been able to put her
psychology and law to use by developing a program
in family mediation; she also teaches a general survey
course on alternative dispute resolution.
Alexandra Cury, 1979. Criminal defense attorney, Alternate Defense Counsel, Los Angeles, CA.
Sandra Levick, 1979-801/980-81. Sole practitioner in Washington, D.C. Represents defendants in
criminal trial and appellate matters and plaintiffs in
police misconduct and civil rights litigation.
Larry Allen Nathans, 1980. Assistant Federal
Public Defender, District of Maryland.
Max W. Beck, 1980. Assistant District Attorney,
Middlesex County, MA.
Art Meneses, 1981. Senior associate with Parkinson, Wolf, Lazar & Leo in Los Angeles, CA.; insurance litigation.
Leslie Hiebert, 1982. Supervising Attorney,
Alaska Public Defender Agency in Kotzebue, AK.
Rob Friedman, 1982. Attorney, West Palm
Beach Public Defender, West Palm Beach, FL, handling felony trials.
Santha Sonenberg, 1982. Public Defender, District of Columbia Public Defender Service.
Kirk Abbott, 1982. Public Defender, New
Hampshire Public Defender.
Urvashi Vaid, 1982. Public Information Director,
National Gay and Lesbian Task Force, Washington,
D.C.
Barbara White, 1982. Public Defender, West
Palm Beach Public Defender, West Palm Beach, FL
Caroline Canning, 1983. Bankruptcy and insolvency law at Buchalter, Nemer, Fields & Younger, Los
Angeles, CA.
Laurie Solomon, 1983. Attorney, Environmental
Protection Agency Preparedness Staff (to prepare for
and prevent chemical spills).
johnathan Zucker, 1983. Sole practitioner in
Washington, D.C., specializing in criminal defense.
Stephen Martin Kohn, 1983. Clinical Director,
Government Accountability Project, Washington, D.C.
Rhonda Upkin, 1983. Attorney, Maryland Legal
Aid Bureau.
Donna Gomien, 1983. Visiting scholar at the
Norwegian Human Rights Institute in Oslo, Norway.
Elizabeth (Liz) Rosenthal, 1984. Attorney, New
jersey Department of Personnel.
Unda Goldstein, 1984. Litigation associate, Kramer, Levin, Nessen, Kamin & Frankel, New York City.
Cynthia jackson-Garrett, 1984. National Director, Law Students Civil Rights Research Council in
New York City.

30

It!
~'j

JtL,-",---

FALL 1987

The original AMA jail project
evolved into the National Commission
on Correctional Health Care, an umbrella organization with 29 sponsoring
and participating national member organizations which continues to publish revised and improved standards for heath
care in jails and prisons and has an expanded jail and prison accreditation process. The American Public Health Association Standards were revised in 1986;
they again pursue larger public health
and environmental goals, while attempting to stipulate clear ethical guidelines
for correctional health purposes.
In the decade since Estelle v. Gamble, a sense of professionalism has
emerged among correctional health care
providers. The ACHSA, the American
Correctional Health Care Association
was founded in the early I980s and the
Journal of Prison and Jail Health began at
the same time. The National Commission emerged some few years later.
Nonetheless the major gains in service
delivery capability are the result of litigation. Despite a growing cadre of dedicated physicians, nurses and physician extenders, state legislatures and county
governments almost never appropriate
funds adequate to the task of caring for
a population which is overwhelmingly
poor, minority, medically underserved,
and medically neglected. The incarcerated population is characterized by a
high degree of unattended chronic medical conditions and a health status far less
robust than that of a comparable age
matched non-imprisoned cohort.

Private Health Care Providers
One interesting development in the
last years has been the emergence of
private for-profit correctional health
care providers. These companies market
their services as a complete package designed to prOVide the full range of service from the initial health screening
through consultation. They also promise
to prOVide constitutionally adequate care
which will discourage or defeat legal
challenge. Estimates vary, but most indicate a $800 million market. unquestionably attractive to an entrepreneurial
mentality.
Nonetheless it remains difficult in
most areas to attract well-qualified medical staff. The setting and the subordinate
position of medicine in a correctional institution are too alien to the usual assumptions and surroundings of medical
practice. Salaries and working conditions
are at odds with the images of quality
medical care: civil service salaries are not
competitive, and professional isolation
looms large.

The Future of Correctional Health
Care: AIDS
The future of correctional health
care will be only more complex given
the growing AIDS epidemic and the demographic characteristics of many incarcerated populations. AIDS is a disease
spread by sexual contact, blood products
and the sharing of dirty needles. It was
first diagnosed in the male homosexual
community and shortly thereafter in the
intravenous drug abusing population and
among transf'lsion recipients. It is now
clear that it may be spread by heterosexual contact. AIDS is now invariably
fatal. There are no precise statistics but
experts assume that in many incarcerated populations well over the majority
have IV drug experience and that a large
proportion of these persons will test
positive for the AIDS virus. No one yet
knows how many of those who are seropositive will convert to AIDS. This disease however will define the future of
correctional health services.
There is as yet no treatment which
can cure AIDS and no vaccine which can
protect the uninfected from disease.
AIDS patients are feared by caregivers.
Although the major routes of disease
transmission are characterized by inti- .
mate behaviors, there is documented
evidence of a minute chance of spread
to health workers who have not taken
proper precautions in handling blood and
other body fluids. A previously undesirable and stigmatized population may now
be seen as dangerous to health and
other care and custody providers, despite the fact that proper precautions
are a barrier to the casual spread of
infection.
The stage is also set for new constitutional challenges. Even though no
cure exists for AIDS, certain drugs have
been proved effective in controlling the
recurrence of the opportunistic infections which AIDS permits and thus in
extending life. These drugs are expensive and many non-incarcerated persons
are having difficulty obtaining them.
There is no question, however, that they
are effective treatment for many persons
with AIDS. Will the non-provision of
these drugs demonstrate "deliberate indifference" to a prisoner's health needs?
It is hard to imagine that this will not be
so.
It is also a growing suspicion that
infection with the HIV virus produces
many more subtle health status changes
before full blown AIDS appears. Medications may prove effective in the future
for many HIV infected persons who have
not yet developed AIDS. A vast number
of these persons are incarcerated. What
will be their right to treatment? At
what cost? Will the voting public and
legislators permit greater access to life

extending treatment in prison than without? Will infected persons seek convictions in order to receive medical care
and treatment? Will systems attempt to
parole inmates in order to survive financially? Will providers be willing to serve
this population? Will correctional systems segregate sero-positives and what

will be the result of that segregation?
Will institutions screen for HIV infection, and how will that information be
used, abused, guarded or shared? These
are the imponderables which will define
the future of health care in correctional
institutions. II

Media Treat Crimes As Isolated,
Random Events
Ben H. Bagdikian
There is an amnesiac cycle in prison
policies in which little or nothing seems
to be remembered about the past, a loss
of memory for which the news media
share responsibility.
The media do not play the primary
role. The dubious distinction goes to political leadership that too often governs
these matters as though there were
nothing to learn from the past and behaves as though modern criminal justice
began with the last grisly crime reported
by the media.
Mister Dooley said that the Supreme Court follows the election returns. So do presidents, governors and
legislators. When it comes to criminal
justice policies, the election returns are
heavily influenced by the pattern of
headlines and televised news of crime. A
distressing percentage of news items
treat crimes and prison problems as isolated, random events with neither underlying cause nor discernible remedy
beyond endless incarceration.

..

The amnesiac pattern goes like this:
crime becomes a heated public issue, the
safest political approach is to press for
longer sentences, prisons become overcrowded, there are violent prison rebellions, new prisons must be built to handle the longer sentences, and politicians
get elected by promising precisely that.
Once in office, politicians discover that

Ben H. Bagdikian is Dean of the Graduate
School ofJournalism at the University of
California, Berkeley. He is the former assistant managing editor for national news
at the Washington Post; among the books
he has written about prisons are The
Shame ofthe Prisons (1972) and Caged
(/976).

Among all categories of news,
crime ~ one of the cheapes~
easiest to gather, and safest to
publish.
the promised rate of imprisonment will
bankrupt the government, so in the
time-honored ritual the impasse is finessed by appointing a commission. In
due course, the commission reports that
crime has certain underlying causes that
must be dealt with in any honest analysis
of criminality and that hard imprisonment is a highly limited remedy. Furthermore, a range of alternatives that have

been adopted in the past that are both
less expensive and more effective. Some
of these alternatives are adopted with
quietude- the voters may remember
election promises of harshness-but because these alternatives are less dramatic
than electrocution and solitary confinement, and because they, like everything
else, are never I00% effective, a parolee
or diversionary defendant commits a
crime, the news media headline the fact
and the amnesiac cycle begins again.
In a society blessed by schools, universities, libraries, archives and other institutions of social recall, the subject of
what to do about crime and imprisonment seems to escape the ability to remember what has been learned many
times over. Among the causes for this
amnesia is the behavior of the news
media
The news is not totally irrational or
simple-minded about crime and punishment. Periodically, there are articles suggesting alternatives to widespread imprisonment, occasional televised

depictions of prison cruelties, and isolated reports on the more unproductive
consequences of conventional jails and
prisons.
Nevertheless, there are conventions
in news that contribute substantially to
the cycle of cruel and unproductive public policies in criminal justice.
One of these conventions is the
generations-old practice of the over-reporting of crime and doing it without
context. Crime and its causes are important public matters. In periods of increased crime it ~s important to report
some individual crimes, some because
they may have pragmatic importance to
certain communities or locales, and
some because they have obvious public
impact, like assassinations and other
crimes against significant public figures,
or because they may reflect systemic
problems in police and other criminal
justice practices.
I believe that most reporting of
crime in American newspapers and
other media have a less respectable set
of reasons.

Crime is dramatic and violent, so it
is a reliable attention-getter. It meets a
largely unthinking convention in too
much news that exaggerates all violence.
Among all categories of news,
crime is one of the cheapest, easiest to
gather, and safest to publish. It is gathered by the police, made available in a
central place, and unless handled with
gross incompetence is libel-free even
though it deals with intimate and damaging events in personal lives. I have been
a police reporter and an editor, so I
speak as past sinner and confessor: if
news organizations had to track down
the commission of each crime, gather
the details with their own paid reporters, and verify the events sufficiently to
avoid law suits, I can guarantee that the
incidence of reported crime in the
American news media would plummet.
Furthermore, crime is almost always presented as a series of individual
acts and in such a way that the phenomenon of crime seems to have no discernible cause beyond random evil. A phenomenon in society that seems to have
no known causes is especially frightening.
Throughout history, mysterious plagues
have always produced hysteria and selfdestructive reactions. Crime without a
-continued on next page
FALL 1987

31

b
¥44

-continued from previous page

WHERE

ARE

THEY

Now?

Margaret Wood Hassan, 1984. Litigation associate at Palmer & Dodge, Boston, MA, specializing in
education law.
Heidi Reavis, 1984. Ms. Reavis is spending her
first year of law practice outside of the U.S., at five
different law firms in Rotterdam, Sydney, Taipei,
Stockholm and Paris.
Rose Musonye, 1986. Sole praaitioner, immigration law. Independent contraaor, Arnold & Porter,
Washington, D.C.
Michele Deitch, 1984. Having finished a clerkship for Hon. R. Lanier Anderson, 11/ of the Eleventh
Circuit, Ms. Deitch is now working for Vince Nathan,
Special Master of the Texas prison system, in
Houston.
SallyAnne Campbell, 1985. Fellowship, Public
Advocates, Inc. in San Francisco, focusing on AIDS
prisoners at CMF-Vacaville.
Reva Brown, 1985. Associate, property law firm,
Washington, D.C.
Mark Kluger, 1985. Attorney, Clapp & Eisenberg, Newark, New Jersey.
Jody Hart Levine, 1985. Worked most recently
as legislative assistant for National Committee
Against Repressive Legislation.
Bonnie Barnes, 1985. Attorney at Sessions, Keiner & Dumont, a small law office in Middlebury, VT,
which handles the public defender work for the
county.
Caroline Smith, 1984-85. Legislative counsel,
Massachusetts Division of Insurance.
Marvin Hamilton 11/, 1986. Judicial clerkship
with the Criminal Court of Appeals, Anchorage, AK.
John Fitzpatrick, 1986. Law clerk for Justices
Clifforn and Scolnik of the Maine Supreme Judicial
Court.
Dan Huck, 1986. Assistant Attorney General,
Antitrust D,ivision, West Virginia. Also helping to draft
national antitrust policy under Charles G. Brown, Attorney General of West Virginia and Chairman of the
Antitrust Division of NAGG (Nat'/. Association of At- .
torneys General).
Delbert Bauldock, Jr., 1986. Staff attorney, New
Jersey Department of the Public Advocate, Mental
Health Division.
Michelle Lanchester, 1986. Ms. Lanchester is a
private attorney in a general praaice firm in
Maryland.
Felipe Restrepo, 1986-87. Public Defender in
Philadelphia, PA
Laurie Whitaker, 1987. Attorney, U.S. Patent
Office.
Louis Siegel, 1287. Civil rights praaice and
prison monitorship with Nathans & Roberts, Toledo,
OH.
George Brooks, 1979. Law clerk/legal assistant
at Beckett, Cromwell & Meyers in Bethesda, MD.
Awaiting a decision on his admission to the Bar from
the Distria of Columbia follOWing a June hearing before the Court of Appeals. The Distria is debating
what standard to apply to the admission of former
prisoners.
Cary LaCheen, 1987. Cary is now in her third
year at New York University Law School.
Mary Rowland, 1987. Mary is a third year law
student at the University of Chicago Law School.
Robert Wilkins, 1987. Robert is now a second
year student at Harvard University Law School.
Elizabeth Rolando, 1987. Elizabeth is now in her
third year at Harvard University Law School.
Gerry Glynn, 1987. Gerry Glynn, a second year
law student at American University, will be interning
at the NPP through May, 1988.

32

FALL 1987

context of known epidemiology has the
same effect as the medieval black
plague-it creates mystical incantations,
hysterical search for scapegoats (in this
case, secular humanism, lack of patriotism, modern education, liberal social
programs, race, chromosomes, etc.).
The sources of individual crimes
cannot be easily analyzed, certainly not
in the news. But the sources of crime as
a social phenomenon are not mysterious.
There are clear factors of age, of educational, economic, and familial deprivation
in the case of most offenders. Culturally
there are the factors of the place in our
society of violence, materialism, extreme
individualism, and the veneration of
weapons.
Crimes by parolees or probationers
typically are treated without context.
When a parolee is arrested, it is treated
as a definitive demonstration of the failure of the policy of ever releasing a prisoner. It could be treated just as reasonably as a demonstration of the failure of
imprisonment.
Neither in simple politics of crime
nor in the news is there much emphasis
on these underlying causes of the incidence of crime. These have been identified with irrefutable, statistical reliability,
but news treatment lacks memory of
these, and this contributes to the political exploitation and hysteria.
All of these factors are intensified
by the current political atmosphere in
the country. Mister Dooley said that the
Supreme Court reads the election returns. So do editors and publishers. In a
period of Rambo and accompanying political machismo, of social insensitivity,
and contempt for public institutions, the
news establishment more than ever fears
being labeled bleeding hearts and
"reformers."
It is a discouraging picture, but
there may be long-term hope. Journalists

are increasingly well educated and sophisticated, though when it comes to
crime there are only feeble attempts to
place individual crimes in a reasonable
social context. But related problems of
distorted values in the news have
changed over time with serious discussions with top journalistic leaders, and
with positive results that are often overlooked, even by the media themselves.
For example, it was not so long ago
(if a generation ago is considered not
"long" as refQl'"ms go) that news in the
United States routinely reported names
of juveniles in crime, names of rape victims (unless of middle class social status),
fictionalized and otherwise committed
unfair and cruel practices in dealing with
crime and criminals that would be unthinkable today even in the most unthinking publications. It was a favorite
device for the police to force a suspect
to pose as though committing the crime,
with the resulting photograph published
as a recreation and the suspect, if he had
any record whatever, described as having a "long criminal record" and be referred to in the news routinely as a
"hoodlum." Reports from prisons were
even more the creations of prison administrators than they are today.
A generation ago the Reardon
Commission of judicial and editorial leaders articulated problems of unfairness
and inaccuracies in conventions of pretrial publicity. It has had a profound effect, though one enhanced by libel and
invasion of privacy civil suits. It is not unrealistic to hope that a truly influential
similar group, not politicized by partisan
and ideological membership, could do
the same for news treatment of prison
issues. The time probably is ripe, since
the country seems to be in that part of
the amnesiac cycle in which it is realizing
that it cannot afford the kind of imprisonment that was a standard political
boast ten years ago. III

Exploring the Connections
Between Feminism and Justice
M. Kay Harris
Periodically. if we are lucky. we receive "a whack on the side of the
head.'" something that stimulates a new
way of thinking and opens mental locks.
Reviewing Graeme Newman's book. just
and Painful: a Case for the Corporal Punishment of Criminals. 2 served to jolt my
thinking about the punishment system.
Newman argues that punishment should
be made more painful and that its painful
nature should be made more evident.
Although he thinks harsh imprisonment
should be retained to punish true criminals. Newman advocates corporal punishment, primarily in the form of electric
shocks. as the standard non-custodial
disposition. 3•
Although the entire book is jarring.
I was particularly struck by Newman's
brief section on the justification for punishment. Newman describes punishment
as a "need." a need to settle a score
that is deeply imbedded in the meaning
of justice. As I read the examples he
gave. it struck me that Newman's model
of justice is a "macho" model. It is a
view of justice drawn from the barroom,
the old west cowboy movie. and the
lynch mob. If someone threatens or injures you. you "call him out." you "make
him pay." you run him out of town,
shoot him, or string him up from the
nearest tree. But Newman's view is not
the only view. Reading just and Painful
pushed me to begin thinking about what
a vision of justice based on feminist values might look like.

What is Feminism?
Feminism should be seen not
merely as a prescription for granting
rights to women. but as a far broader vision. Feminism is about much more than
equal rights in the legal sense. since current legal definitions of equality tend to
elevate form over substance and to be
too restricted in focus. Feminists are
M. Kay Harris is the former Washington
director of the National Council on Crime
and Delinquency. She is an associate professor of Criminal justice at Temple University in Philadelphia.
'I am borrowing this term from Roger von Oech,
A Whack on the Side of the Head: How to Unlock
Your Mind for Innovation, 1983.
"Graeme, Newman, Just and Painful: A Case for the
Corporal Punishment of Criminals, 1983.
'For a more complete summary of Newman's proposals, see my review of his book in Journal of
Criminal Law and Criminology, v. 785, no. 3, Fall
1984, at 1030-1035.

concerned not simply with equal opportunities or equal entitlements within existing social structures. but with creating
a different set of structures and relations
that are not only nonsexist but also are
nonracist and economically just.
Feminism offers. and is. a consciousness. a way of looking at the world. a
set of values. beliefs. and experiences.
Among the key tenets that lie at the
core of feminist morality are that all
people have equal value as human beings.
that harmony and felicity are more important than power and possession. and
that the personal is political.
Feminist insistence on equality in
sexual. racial. economic. and all other
types of relations stem from recognition
that all humans are equally tied to the
human condition. equally deserving of
respect for their personhood. and
equally worthy of survival and of access
to those things that make life worth living. This is not to argue that all people
are identical. Indeed. feminism places
great emphasis on the value of difference
and diversity. Different people should
receive not identical treatment. but
identical consideration. Feminists believe
that it is possible to appreciate difference and individuality while also appreciating fundamental commonality.
In the feminist view. felicity and
harmony are regarded as the highest values. Viewing all people as part of a network on whose continuation we all depend. feminists stress the themes of
caring. sharing, nurturing. and loving.
Recognition of shared humanity and of
the sanctity and vulnerability of human
life nourish a commitment to actively resist war. rape. and other life-destructive
forces and to refuse to cooperate with
injustice and with institutions that perpetuate racial prejudice. sexist privilege.
and unfair distribution of wealth. resources. and opportunity.
Feminists believe that the political is
the personal. This means that core values must be lived and acted upon in
both public and private arenas. not simply regarded as abstract principles to be
honored only when it seems convenient
to do so. Thus. feminists reject the tendency to offer one set of values to gUide
interactions in the private and personal
realms and another set of values to govern interactions in the public worlds of
politics and power. Rather. feminists believe that empathy and compassion and
the loving. healing. person-oriented values that now are seen as having value

mainly in the private. personal realms
must come to be valued as highly as the
skills and behaviors that advance people
to the rank of lieutenant colonel. corporate president, or college professor.
Feminists believe that it is impossible to realize humane goals and create
humane structures in a society that values power above all else. 4 Where the
central goal is power. power conceived
as power-over...,-power-over people. institutions. nature. things•...,-people and
things are not viewed as ends in themselves. but as ins\ruments for the furtherance of power.
Where power is seen as paramount. hierarchical institutions and
structures are established both to clarify
power rankings and to maintain them.
The resulting stratifications create levels
of superiority and inferiority. which
carry differential status. legitimacy. and
access to resources and other benefits.
Such division and exclusions engender
resentment and revolt in various forms,
which then are used to justify greater
control.

The Criminal Justice Dilemma
The criminal justice system prOVides
a clear look at the values against which
feminists have been fighting. Here. there'
is no attempt to disgUise the fact that
the goal and purpose of the system is
power/control. Although the stated goal
is control of crime and criminals. the
true function of the criminal justice system is social control generally. Law is an
embodiment of power arrangements; it
specifies a set of norms to be followed-an order-and also provides the
basis for securing that order: coercive
force. Coercive force is seen as the ultimate and the most effective mechanism
for social defense. And once the order
to be protected and preserved is in
place. there is little concern with
whether the social system to be defended is just or serves human ends.
We are caught in a truly vicious circle. Existing structures, institutions. and
values create the problems that we then
turn around and ask them to solve. or
rather control. using the very same
structures. forms. and values. which in
turn lead to more problems and greater
demand for control. We all want to be
protected from those who would violate
our houses. our persons. and our general
welfare and safety. but the protections
we are offered tend to reinforce the divisions and distorted relations in society
and exacerbate the conditions that create much of the need for such
protections.
-continued on next page
4Marilyn French. Beyond Power: On Women, Men
and Morals. 1985.
FALL 1987

33

Here is a listing of
NPP Staff, past
and present:
Alvin J. Bronstein*
Adjoa A. Aiyetoro*
Edward I. Koren*
Jan Elvin*
Alexa P. Freeman*
Jere Krakoff*
Victoria Inman*
Lynthia Gibson*
Lorna Tucker
Beryl Jones*
Julia Cade*
Betsy Bernat*
Melvin Gibbons*
Elizabeth Alexander*
Claudia Wright*
Mark Lopez*
Mary McClymont
Urvashi Vaid
Steven Ney
Nkechi Taifa-Caldwell
Daniel E. Manville
Sharon Goretsky
Salaama Wadud
Ursula Brown
Ralph Knowles
Matthew Myers
Dwight Duran
Jim Gaylord
Shawn Moore
Audrey Hair
Peggy Weisenberg
Arpiar Saunders
Nancy Crisman

Janice Lothers
Michael Millemann
Irving Joyner
Caryl Pines
Norma Wigutoff
William Patterson Nix
Lois E. Adams
Alaire B. Reiffel
Thomas S. Howard
Julie Bronstein
Lanier Ramer
Sarah Bronstein
Sharon K. Coleman
Isaac Lewis White
Carol Hinds Horwitz
Bonnie Milstein
Rudolph Clemons
Margaret O'Reilly
Julie Huff
Constance Potter
Esau Prentiss
Jill Raymond
Jimmy Potts
Roberta Messalle
Janet Edmonds
Rosa Greene
Deborah Zak Mettger
Carole Brooks
Marjorie Hawkins
Ron Phillips
Nan Aron
Louis Holloway
Reita Pendry
Jane (Parker) Whittington
Mary Giesen
*present staff

M. Bennett, 1978.
James Williamson, 1978.
J. Comack, 1978.
Wendy Conway, 1978.
David Saevitz, 1978.
Ann Marcus, 1977.
Mary Elcano, 1977.
Tamica (Mikki) Graves, 1986. Dale Saunders, 1977.
Katie Baird, 1985.
L Elstein, 1977.
Ted Janger, 1985.
Carole Deitchman, 1977.
Kym Cooper, 1985.
J. Neuman, 1977.
Michelle Varrichio, 1984."
S. Resnick, 1977.
Jim Emineth, 1984.
Janis Levant, 1977.
Maura Browne, 1983.
S. Forman, 1977.
Wayne Drummond, 1983.
S. Page, 1977.
Kathleen Bowman, 1983.
S. Eastman, 1977.
Sarah Chambers, 1983.
S. Hughes, 1977.
Stephanie Brown, 1982.
Roxanne Grossman, 1975.
Sukari Hardnett, 1982.
Stephen Bricker, 1975.
Greg McGillivary, 1981.
Thomas Foltz, 1975.
Kelly Banach, 1981.
Charles Barrett, 1975.
Michelle Osborne, 1981.
Richard Lennon, 1975.
George Strafer, 1980.
Melanie Poster, 1975.
Jocelyn Jones, 1980.
Kenneth Ross, 1975.
M. Watson, 1980.
George E. Tuttle, 1974.
Julia Bingham, 1980.
Kathleen Mack, 1974.
M. Bookman, 1980.
Michael Gordon Magnus, 1974.
Elizabeth Selleck, 1980.
Irene Holzer Mields, 1974.
Richard Arvedon, 1979.
Jules Charles Horwitz, 1974.
Dan Gold, 1979.
Susan Sherer, 1971
Kathy Grasso, 1979.
Janet Zoglin, 1973.
Carol A. Joffee, 1978.
Barbara Joan Becker, 1973.
Gloria Gelman, 1978.
Andrew Lawrence lipps, 1973.
listed below are former
NPP law interns who
either did not respond to
our surveyor whom we
were unable to locate.

Clearly, the standard approach in
recent years has been to seek more
control-more prisons, more time in
confinement for more people, more surveillance and restriction of those not
confined. But as we acquiesce in accepting continuing escalation of such controls, we reduce correspondingly our efforts and prospects for the kind of safety
that cannot be achieved through force
and control.
It is important to bear in mind that
penal sanctions, like crimes, are intended
harms. "The violence, punishing acts of
state ... are of the same genre as the
violent acts of individuals. In each instance these acts reflect an attempt to
monopolize human interaction, to control another person as if he or she were
a commodity."s Those who set themselves up as beyond reproach define
"the criminal" as less than fully human.
Without such objectification, the routine
practice of calculated pain infliction, degradation, domination. banishment, and
even execution could not be tolerated.
The same dilemma arises whenever
we touch issues related to self-defense,
whether in an immediate personal sense
(as when confronted by a would-be rapist or other attacker), in a penal policy
sense (as when deciding how to deal
with known assaulters), or in even
broader terms (as when confronted by
powers and structures that seem bound
to destroy us). How can we respond to
people who inflict injury and hardship on
others without employing the same
script and the same means that they do?
How can we respond to immediate
needs for safety without elevating the
need for protection over the need to
recreate the morality. relations, and conception of justice in our society?
Emerging Guides for the Future
Although recognition of the values
central to a feminist orientation does
not automatically yield a specific formula
for better responding to and thinking
about crime and other conflict, feminist
values suggest some general guides for
beginning to address what criminal justice ought to look like in the future and
for how we should proceed in the
short-term. A key standard to help in
making choices is to ask: what kinds of
behavior and responses will achieve the
goal of the greatest possible harmony?
Thus, the task is not to discover how to
eradicate crime, but to discover how to
behave as befits our values and desire
for harmony.
A feminist orientation demands
greater recognition of the role and re5Dennis Sullivan, The Mask of Love: Corrections in
America-Toward a Mutual Aid Alternative, 1980 at
6.

34

FALL 1987

sponsibility of society, not just the individual, in development of conflict. This
suggests that individuals, groups, and societies need to accept greater responsibility for preventing and reducing those
conditions, values, and structures that
produce and support violence and strife.
Removing the idea of power from its
central position is key here, and requires
continually challenging actions, practices,
and assumptions that glorify power, control, and domination, as well as developing more felicit,pus alternatives.
Acceptance of human equality and
the interdependence of all people requires rejection of several common current tendencies. We need to struggle
against the tendency toward objectification. of talking and thinking about
"crime" and "criminals" as if they were
distinct entities in themselves. We need
to reject the idea that those who cause
injury or harm to others should suffer
severance of the common bonds of respect and concern that bind members of
a community. We should relinquish the
notion that it is acceptable to try to
"get rid" of another person, whether
through execution, banishment, or caging away with other persons about
whom we do not care. We should no .
longer pretend that conflicts can be resolved by the pounding of a gavel or the
locking of a cell door.
Commitment to the principle of
equality means striving for interactions
that are participatory. democratic, cooperative, and inclusive, characteristics that
are incompatible with hierarchy, stratification, and centralized decision-making.
Thus, rules, which often are substituted
for sensitive, respectful engagement of
persons in cooperative problem-solving,
should not be regarded as sacrosanct.
And because people learn from the nature of the processes in which they participate, as well as from the objectives of
those processes, we should give greater
attention to what the process teaches
and how it is experienced.
It may be difficult to imagine how
some conflicts could be resolved amicably. Especially while we are in the process of transition, we have to contend
with all of the effects that our present
structures, values. and stratifications have
had on people. Thus, much as I would
like, I do not think we will soon reach a
stage in which we can expect never to
feel the need to resort to exercising
control over another person. But I do
think we can greatly reduce our current
reliance on repressive measures and that
we should aim to move continually in
the direction of imposing fewer coercive
restraints on other people.
While we are in the transition process, and where we continue to feel that
it is necessary to exercise power-over

other people, we should honor more
completely certain familiar principles that
are often stated but seldom fully realized. Resort to restriction of liberty,
whether of movement, of association, or
of other personal choices, should be
clearly recognized as an evil. Whenever
it is argued that it is a necessary evil,
there should be a strong, non-routine
burden of establishing such necessity.
And where it is accepted that some restriction is demonstrably necessary,
every effort should be made to utilize
the least drastic means that will satisfy
the need established. Thus, we should
approach restriction and control of
others with trepidation, restraint, caution, and care.
In addition, we should recognize
that the more we restrict an individual's
chances and choices, the greater is the
responsibility we assume for protecting
that person and preserving his or her
personhood. We should no longer accept the routine deprivations of privacy,
healthful surroundings, contacts, and opportunities to exercise choice and preference that we have come to treat as
standard concomitants of restriction of
liberty. Such deprivations are not only
unnecessary but also offensive to our
values and destructive to all involved.
These principles make it apparent
that we should abandon imprisonment,
at least in anything like the way we have
come to accept the meaning of that
word. There is no excuse for not only
continuing to utilize the dungeons of the
past, but also replicating the assumptions, ideology, and values that created
them in their newer, shinier, more
"modern" brethren now being constructed on astonishing scale.
How should we deal with people
who demonstrate that they cannot live
peacefully among us, at least for a time~
Although the answers to that question
are not entirely clear, feminist values
would suggest that we should move toward conceiving restriction of liberty as
having less to do with buildings, structures, and wailS and more to do with
human contacts and relations. Few if any
creatures are dangerous to all other
creatures at all times, especially not to
those with whom they are directly and
closely connected on an ongoing basis. A
range of compassionate, constructive,
and caring arrangements need to be created. And we should not allow the most
difficult cases to stand in the way of
more rapidly evolving better approaches
for the rest.
It may be tempting to conclude
that no efforts in the directions I suggest
will be worthwhile, that nothing can be
done until everything can be done, that
no one can confront crime humanely until everyone is willing to do so. But glor-

ification of control and the power ethic
have failed to serve human happiness.
That course has yielded only division, alienation, enmity, bitterness, and despair.
To have a harmonious society, we must
act in ways designed to increase harmony, not to further fragment, repress,
and control. We should try to act as we
believe would be the best way to act-

not just in the future, but in the
present. I11III
For further elaboration, see M. Kay Harris,
"Moving Into the New Mil/enium," in The
Prison journal, v. LXVII, No. 2 (Fall/Winter 1987), [forthcoming]. This is a special
issue in recognition of the two hundredth
anniversary of the· Pennsylvania Prison Society on "The Future of Corrections."

Another Day, Another
Dead Roach in the Mail
Why, when we gripe about the office cockroaches, AI merely waves us aside.
"I put those roaches there," he claims. "A measure of sympathy for our clients."

Betsy Bernat
When I was little, I wanted to be
something glamorous when I grew up.
Like a stewardess. Or a queen. Last
week, I typed an entire brief about toilets-numbers of, access to, hours of
use. A queen~ Ha! I work at the National Prison Project.
I remember interviewing for this
job. Most prospective employers ask
about office skills and career goals. AI
Bronstein asked me how I felt about the
death penalty. Was that a hint of things
to come~
You bet. I understand he asked
other applicants if they had any relatives
in prison, and if they did, his eyes lit up
encouragingly.
Let me tell you about this place. It's
not your average law firm. I know; I've
been here four years. For starters, the
attorneys are a breed apart. Brilliant,
yes, but definitely a breed apart.
Who else goes to Hawaii and
spends their time visiting the state
prison~ We've had attorneys come back
from Hawaii with no tan at all and it
wasn't because it rained the whole time
they were there.
And for all the times our lawyers
have gone to Santa Fe, they have never
once visited a pueblo or gone on the
Roadrunner Tour Tram. They've been
on tours, sure, but only through the
New Mexico State Penitentiary with a
couple of experts and local counsel in
tow.
What a way to make a living. It
makes you wonder, who are these people who have voluntarily entered such a
gruesome field~ They could make a lot
of money and never have to eat a meal
in South Hill, Virginia again. What in the
world motivates them~

Betsy Bernat has worked at the National
Prison Project for four and a half years as
a secretary, an editorial assistant on the
JOU RNAL and more recently as one of
Mr. Bronstein's assistants.

Is it the hallway art in the NPP ofBlown-up photos of grungy showers we have known~ Or is it the mail we
receive~ Ready-made exhibits like dead
mice and burnt toast?
Are they simply fanatics~ When
they play Monopoly, are they glad to be
sent to jail~
I shouldn't knock it; you can really
learn a lot here. Take sanitation standards. I've typed enough expert reports
to know the dangers of mold, grime and
mildew. I'm ready to file a lawsuit
against our office kitchen. The inside of
the toaster oven alone could bring in
enough attorneys' fees to last me at
least a couple of months.
I've also learned where all the prisons are. If there's ever a game show
called 'Name That Slammer', I'd clean
up. "P.O. Box 51, Comstock, NY" the
host would say, giving the clue. I'd
smack my buzzer: "Great Meadow Correctional Facility, New York"! I've
learned how to make a diet loaf, thanks
to several of our behavior modification
cases. When I make it at home, I simply
put a loaf pan on the floor, tilt my refrigerator until all of its contents have
spilled into it and then I bake it 'til it's
hard as a rock.
I remember last year we got a call
from a woman who wanted to recite
what she called a "litany of horrors"
about a county jail. The phrase struck a
chord. A litany of horrors~ I could recite
a few myself. Like I said, you learn a lot
on this job. Sometimes I wish I didn't
know as much as I do.
I know exactly what motivates
these lawyers. I see the answer to that
question every day, in every prisoner
letter and every call from every mother
concerned about her son. If the Prison
Project lawyers are a breed apart, and
uncommonly committed, maybe it's because they feel that they don't have any
other choice. I11III
fice~

FALL 1987

3S

Current Prison Project staff Ist row from left: Elizabeth Alexander, Claudia Wright, Lorna Tucker, Beryl Jones; 2nd row: Lynthia Gibson, Sharon
Goretsky, AI Bronstein, Betsy Bernat, Jan Elvin, Julia Cade, Melvin Gibbons; 3rd row: Jere Krakoff, Ed Koren, Louis Seige/*, Seth Nthai*. */aw clerks

National

~rison

Project

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

36

FALL 1987

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