Women have had unnecessary
hysterectomies and suffered severe
complications after delivery.

-continued from front page

cerated mothers and their children are
receiving a greater amount of attention
and response. Legal Services for Prisoners with Children in California has focused on several critical areas of concern
to incarcerated parents in the last several years. We have made some improvements in conditions within the
institutions and in the programs which
affect these parents and children. We
have also filed conditions lawsuits on behalf of pregnant women prisoners in
state and county jails. Challenges have
been made to the lack of effective alternatives to imprisonment for mothers
with young children, and we have scrutinized the policies and procedures of
state social services agencies which place
these children in foster care. Some victories have been achieved in these areas,
but much remains to be done.

Prenatal Medical Care for Women
Prisoners
On April 20, 1987, Judge John Davies of the Federal District Court in Los
Angeles approved the final settlement in
Harris v. McCarthy, a lawsuit filed on behalf of pregnant and postpartum state
prisoners in California. A strong and
comprehensive settlement covers all aspects of prenatal and post-natal medical
care. It was based, in part, on prenatal
care standards developed by the American College of Obstetrics and Gynecology, and was carefully reviewed by
respected e>q>erts in the field.
Specifically, the settlement requires
defendants (California Department of
Corrections and the California Institution for Women) to I) allow pregnant
women to receive regular treatment and
monitoring of medical care by a qualified
OB-GYN. (Prior to the filing of the lawsuit, many pregnant women at CIW
never saw an obstetrician while at the
prison until they were brought to an
outside hospital to deliver); 2) create a
Pregnancy Related Health Care Team,

Ellen Barry is the Director of Legal Services for Prisoners With Children, /3/7
18th St, San Francisco, CA 94/07,
4/5/824-/070.
2 WINTER 1987

which will consist of the OB-managing
physician, nurse, midwives, nurse practitioners, a pharmacist, and other necessary personnel and will act to provide
each woman with coordinated health
emergency treatment and high risk protocols; 3) implement detailed emergency
treatment and high risk protocols developed in the course of the settlement
discussions; 4) implement a number of
other changes with respect to the provision of care for high-risk pregnant
women and women with regular pregnancies and 5) report regularly to plaintiffs, their attorneys, and the court
concerning the implementation of the
settlement for a period of 18 months.
Plaintiffs and their attorneys are
very pleased with the results of the settlement, since we feel that, if the Department of Corrections complies with
the terms of the settlement, prisoners at
CIW are far more likely to receive good
prenatal and post-natal medical care.
The lawsuit was filed in September
of 1985 by women prisoners at CIW
who had suffered miscarriages, infant
deaths, hysterectomies or other traumatic pregnancy-related conditions.
Plaintiffs were represented by Legal Services for Prisoners with Children, the
law firm of Heller, Ehrman, White and
McAuliffe in San Francisco, and the
Southern California ACLU.
Plaintiffs alleged that pregnant
women at the prison were being deprived of adequate prenatal and postnatal medical care in violation of their
constitutionally protected right to be
free from cruel and unusual punishment.
The suit was filed as a class action on
behalf of seven named women prisoners,
and the class of pregnant women at the
Southern California prison.
The lawsuit alleged a wide range of
deprivations in the provision of medical
care, including denial of adequate medical care in pregnancy-related emergency
and life-threatening situations, inadequate
care following delivery, inadequate treatment of critically high-risk women, dissemination of prescription drugs to
pregnant women which were contraindicated during pregnancy, and other
serious violations. Plaintiff Annette Harris lost her baby at five months after
gestation after bleeding and cramping for
over two weeks without, plaintiffs alleged, treatment or without being seen
or examined by an OB-GYN. She went
into labor after she had been prescribed
f1agyl; the baby lived two hours. A second plaintiff gained 120 pounds during
her pregnancy, but, it was alleged, she

was not given adequate medical treatment. A third plaintiff not only suffered
a late-term miscarriage after months of
bleeding and cramping, she also reqUired
a complete hysterectomy. Plaintiffs alleged that defendants' failure to provide
them with adequate medical care during
and after their pregnancies resulted in a
number of infant deaths, still-births and
miscarriages, as well as several incidents
where women had to have unnecessary
hysterectomies and suffered severe complications after delivery.
Because of the particularly strong
and comprehensive nature of the settlement, we are optimistic that the lawsuit
will have implications not only for
women prisoners at CIW, but also that
it will lead to improved treatment for
women prisoners in other states and
jurisdictions.

Prenatal Conditions Suit Pending
Against Santa Rita County Jail
In February of 1986, women prisoners at the Santa Rita County Jail in
Alameda County, California, filed suit
against county jail officials, alleging that
they had been given grossly inadequate
prenatal and post-natal medical care in
violation of their constitutional and statutory rights. The lawsuit, Jones v. Dyer,
seeks not only injunctive relief to improve the overall quality of medical care
for pregnant women, but also the creation of a halfway house alternative for
pregnant women and new mothers who
would otherwise be confined to the jail
during their pregnancies or separated
from their newborns at birth.
The plaintiffs are represented by
the law firm of Public Advocates and the
office of Legal Services for Prisoners

J U

THE

OF THE

L

NATIONAL PRISON PROJECT
Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N.W.
Washington, D.C. 20036
(202) 331·0500
The National Prison Project is a tax-exempt foundationfunded project of the ACLU Foundation which seeks to strengthen
and protect the rights of adult and juvenile offenders; to improve
overall conditions in correctional facilities by using existing administrative, legislative and judicial channels; and to develop al-

ternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the
stipulation that the National Prison Project JOURNAL be credited
with the reprint. and that a copy of the reprint be sent to the
editor.
The JOURNAL is scheduled for publication quarterly by the
National Prison Project. Materials and suggestiOns are welcome.
The National Prison Project JOURNAL is designed by James
True. Inc.

with Children in San Francisco. Plaintiffs
have won two motions for contempt
due to defendants' refusal to comply
with discovery requests, and have been
awarded sanctions on both occasions.
The parties are now in active settlement
negotiation.

Alternatives to Incarceration for
Mothers and Children
One of the most critical efforts
identified by Legal Services for Prisoners
with Children was the need to expand
available alternatives to incarceration for
women in prison who had infants or
young children. This concern was based
on several factors: the intolerable overcrowding that currently exists for
women prisoners both in California state
women's prisons and in prisons throughout the nation, the tremendous costeffectiveness of using alternatives to
incarceration, both on financial and
humane levels, and the enormous damage done to both mothers and children
by the separation due to parental incarceration. In California, Section 340 of
the Penal Code allowed for placement of
the primary caretaker of a child under
the age of six years in a halfway house
community facility provided that the parent met certain screening criteria concerning length and type of sentence and
prior ability to appropriately care for
children. The law was originally drafted
in 1978, enacted in 1979, and amended
in 1981. However, between 1981 and
1985 an extremely small number of eligible mothers were placed in the program with their children. Thus, Legal
Services for Prisoners with Children and
the Southern California ACLU filed Rios
A teacher's aide and two children at the Prison
MATCH Children's Center at Pleasanton Federal Correctional Institution.

v. McCarthy, a lawsuit on behalf of pregnant mothers and mothers of young children in California state prisons on June
5, 1985, alleging that the Department of
Corrections was failing to properly implement the Mother-Infant Care Program in violation of California state statutory and constitutional provisions.
Plaintiffs were granted a temporary restraining order placing four pregnant
women in the Mother-Infant Care Program immediately after the birth of their
infants, and three weeks later, defendants agreed to place several other of the
named plaintiffs immediately in the Program with their young children.
Specifically, the lawsuit alleged that
the defendants failed to properly screen
and administer the Program, failed to
properly advise prisoners of the program
in violation of the statutory provisions,
unfairly denied applicants who were, in
fact, eligible for the program, and improperly denied applicants an adequate
right to appeal denials. In addition, the
lawsuit claimed that the program itself
was inadequately funded, and that insufficient resources were being provided for
medical care, counseling and programs
for the children. The Youth Law Center
of San Francisco filed a companion case,
In Re Maria G., making similar allegations
on behalf of the children who might be
placed in the alternative program.
Since the filing of Rios v. McCarthy
four additional halfway houses have been
contracted, licensed and opened
throughout the state of California. The
original halfway house (Brandon House
in San Jose) has been kept at full capacity, or close to capacity, and five additional sites for new houses are being
explored. However, much remains to be
done to ensure that the program is a
functional and effective alternative to in-

A mother at the Children's Center playing with
her child and two others.

carceration. Funding is still not adequate
to maintain a comprehensive program
for mothers and children; additional sites
must be opened in order to accommodate the eligible clients and children;
standards for acceptance must be fairly
and consistently applied; conditions
within the houses must be improved;
and provisions must be agreed upon
concerning adequate procedures for
application processing and appeals.
-continued on next page
Inmate mothers and children on a "Pumpkin
Patch" trip from the Children's Center at
Pleasanton.

Photos this page courtesy of inmate mothers and children at the Prison MATCH Children's Center at Pleasanton-FCI.

WINTER 1987 3

The California Institution for
Women is now at over 250% over
design capacity.

Baby Irwin was born to this Native American
woman while she was incarcerated.
-continued from previous page
One of the factors that makes this
case-and this avenue of litigation-most important is the severe overcrowding that currently exists in California state women's prisons. The California
Institution for Women is now at over
'250% over design capacity; 75 to 80%
of these women are mothers of young
children, and the overwhelming majority
are single mothers serving time for nonviolent and economic-based crimes. The
Mother-Infant Care Program offers a
necessary alternative to the current warehousing within this prison system. The
costs of needless and unnecessary incarceration--both economic and human-are enormous. The Mother-Infant Care
Program and other alternatives to incarceration offer a viable and constructive
solution to the problems of warehousing
low-security prisoners who are mothers
of young children, the failure of corrections departments to provide effective
rehabilitative programs for prisoners,
and unnecessary separation of these
young children from their mothers. Attorneys for plaintiffs in Rios v. McCarthy
are currently in active settlement negotiation with defendants' attorneys and
hope to be able to arrive at a comprehensive agreement that will greatly improve and expand the Program.

Foster Care and Parental Rights
Issues
In a major victory for incarcerated
parents and their children, the Florida
Supreme Court issued a decision in December 1986 reversing a lower court
decision to terminate the parental rights
of an incarcerated father who had kept
substantial contact with his children during the period of his incarceration. In the
Interest of B. w., J. W. and M. W., No. 68,
192 (Fla. Sup. Ct. 12118/86) held that
the incarcerated father had not abandoned his children under the Florida
statute governing the termination of
parental rights, finding that indigency of
incarceration alone would not support a
finding of abandonment.
The decision by the Florida Supreme Court in In the Interest of B.W.,
J. w. and M. W., No. 68, 192 (Fla. Sup.
4 WINTER 1987

Ct. 12118/86) is a highly significant milestone in the advancement of the rights
of incarcerated parents and their children. In a unanimous decision, the Court
overturned the decision of the district
court affirming the decision to terminate
a prisoner's parental rights, stating that a
prisoner's efforts "to assume his parental
duties through communicating with and
supporting his children must be measured against his limited opportunity to
assume these duties while imprisoned."
Even a cursory review of the record
from the lower court indicates that the
father in this case had made substantial
efforts to communicate with both his
children and the Department of Social
Services. The Florida decision will, we
hope, prOVide gUidance to other state
courts and legislatures which are facing
the question of how to ensure contact
and communication between incarcerated parents and their children.

C. James Dulfer of Central Florida
Legal Services, Inc., Daytona Beach, Florida, represented Petitioner, William
Wirsing. Legal Services for Prisoners
with Children submitted an amicus brief
on behalf of Petitioner, as did Florida Institutional Legal Services and the Florida
Criminal Defense Attorneys Association.
Most county jails and state prisons
have significantly inadequate systems of
providing prenatal and post-natal medical
care for pregnant women; most county
jails refuse to allow parents to have contact visitation +lith their children; alternatives to incarceration are in disfavor in
many communities, even though they are
tremendously cost-effective and humane;
and federal and state revisions to foster
care legislation are making it more and
more difficult for incarcerated parents to
regain custody of their children upon release from prison. Thus, the battle continues. However, we have found that
the effort involved is always worth it
every time we are able to allow one
child or infant to maintain that precious
relationship with his or her imprisoned
parent. IiIII

Rhodes v. Chapman Analyzed for
Effect on Prison Overcrowding
Michael B. Mushlin
It has been almost seven years since
the Supreme Court in Rhodes v. Chapman, 452 U.S. 337 (1981), held that
double-ceiling at the Southern Ohio
Correctional Facility was not unconstitutional. In that time the overcrowding of
American prisons has worsened by the
day. As of December 1985, prisons in
the United States held over a half a million citizens, an astounding figure that
represents an increase of over 68% in
the years since Chapman was litigated.
Four out of five state prison systems
now are overcrowded; thirty-four prison
systems operate at levels of over 50%
beyond capacity. Jails, too, are chronically overcrowded. As of June 1984 they
held almost a quarter of a million persons.' In short, Chapman was decided at

In the post-Chapman world,
litigators must do much more than
we early prisoner rights lawyers
needed to do.
a time of crisis in corrections caused by
unprecedented growth of prison
populations.
Chapman has been called "the most
encouraging decision in prisoners' rights
to have emerged from the Supreme
Court in a decade."2 On the other hand,
it has been described as setting "the limits of the eighth amendment lower than
had preViously been thought.") From my
vantage point seven years later, I think
it's a bit of both. But given the prison
overcrowding crisis the negative aspects
of Chapman are particularly troubling.
To see why requires some background
and explanation.

Michael Mushlin is a Professor of Law at
Pace University School of Law. From 1973
to 1981, Professor Mushlin was actively involved in prisoners' rights litigation with
the Legal Aid Society in New York City.
Laura Hurwitz, a second year law student,
assisted in the research and preparation of
this article.

Department of Justice, Jail Inmates 1984 (1986),
reprinted in Ira Robbins, Prisoners and the Law,
Appendix C and D (Rev. 1987).
2Herman, Institutional Litigation in the Post-Chapman
World, 12 N.Y. Rev. of Law and Social Change,

'These statistics are drawn from Bureau of Justice
StatistiCS, U.S. Department of Justice, Prisoners in
1985 (1986) and Bureau of Justice Statistics, U.S.

'Collins, The Defense Perspective on Prison Conditions Cases, 7-5 in Ira Robbins, Prisoners and the
Law, (Rev. 1987).

299, 302 (1983- 84).

...

The Supreme Court's Opinions in
Chapman
In my days as a prisoners' rights litigator before Chapman, we were able to
address prison overcrowding by presenting straightforward evidence to the federal courts about the consequences of
policies that led to the overcrowding. In
many cases we were able to persuade
courts, through testimony of experts in
fields such as penology and psychiatry,
and by the use of minimum standards
from professional organizations together
with the testimony of inmates who experienced the conditions, that populating
a facility significantly beyond its capacity,
was unconstitutional.· These results
were sensible since when more prisoners are placed in an institution than it
was meant to hold, one can almost feel
the place begin to collapse. Essential services, such as medical care, become
strained. Violence starts to rise as tensions mount. Any semblance of privacy
that may have existed is quickly sacrificed to the pressure to accommodate
the added bodies. Whatever hope there
may have been for the preservation of a
modicum of basic human dignity is lost.
The harmful effects of overcrowding on
health and well-being are amply documented. See, e.g., Thornberry & Call,
Constitutional Challenges to Prison Overcrowding: The Scientific Evidence of Harmful Effects, 35 Hast. L. j. 31 3 (1983). An
overcrowded "rison is anything but a
"rose garden."s
Even if the United States Supreme
Court did not encourage our work in
the lower federal courts, it left it largely
undisturbed. That changed in 1981 when
the Supreme Court broke its silence,
and in Chapman addressed the constitutional questions posed by prison overcrowding for the first time. 6
·Pre-Chapman cases outlawing overcrowding include: Leeds v. Watson, 630 F.2d 674 (9th Cir.
1980); Battle v. Anderson, 564 F.2d 388 (10th Cir.
1977); Williams v. Edwards, 547 F.2d 1206 (5th
Cir. 1977); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392 (2nd Cir. 1975); Ramos v. Lamm, 485,f.Supp. 122 (N.D. Col. 1979);
Ambrose v. Malcolm, 414 F.Supp. 485 (S.D.N.Y.
1976); Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala.
1976).
sChief Justice Rehnquist appears to think that the
goal of prisoners' rights litigation is to make prisons into rose gardens. See, Atiyeh v. Capps, 449
U.S. 1312, 1316 (1981) (In Chambers).
61n an earlier case, Bell v. Wolfish. 441 U.S. 520
(1979), the Court upheld double ceiling as practiced at the federal Metropolitan Correctional
Center in New York City. Chapman. however, is a
more significant case since it dealt with overcrowding in a prison rather than a jail, and since
the prison. although new. was built according to
rather traditional design concepts. By contrast,
Wolfish dealt with the rights of pretrial detainees
in an ultra-modem. state-of-the-art jail which featured college dormitory-like rooms rather than
cells.

An overcrowded prison is anything
but a "rose garden."
The Chapman court was deeply
fractured. While the justices determined
by a vote of 8 to I that double-ceiling
inmates at the Ohio Prison did not unconstitutionally overcrowd the facility, it
took three separate opinions to explain
why. In a fourth opinion, justice Marshall
gave his reasons for concluding that a
constitutional violation did exist.
justice Powell wrote the opinion of
the five-member majority. In it, he limited the role for experts and standards
in the judicial determination of constitutionality. Those persons and groups, justice Powell said, might tell us where we
as a society should be going, but they do
not describe enforceable minimum standards. 452 U.S. at 348 n.1 3. justice Powell laced his opinion with additional language unsympathetic to prisoner claims
for humane treatment. The opinion reminded lower courts that the state legislatures have the primary responsibility
for operating state prisons, and they can,
if they wish, make them uncomfortable
places. These discomforts apparently can
include any deprivations other than
those contained in a limited grouping of
items that justice Powell considered
among "life's necessities." 452 U.S. at
347. In addition, "restrictive and even
harsh" prison conditions, in Powell's lexicon, are simply "part of the penalty that
criminal offenders pay for their offenses
against society." Id. Finally, the majority
saw no magic in the rated capacity of an
institution. Since prison populations are
driven upward by a variety of factors,
prisons that house more people than
they are designed to hold are simply facilities built by officials who "guessed incorrectly about future prison population[s]," and no more. 452 U.S. at 349
n.15.
Despite all this, justice Powell's
opinion reaffirmed a role for lower federal courts in assuring that prison overcrowding does not get out of hand.
Federal courts, he said, have a "responsibility to scrutinize claims" of unconstitutional prison conditions. 452 U.S. at 352.
Four cases in which lower courts had
ordered extensive changes, including the
elimination of overcrowding, were cited
with apparent approval. 7
The remaining three opinions collectively express the view of justices
7452 U.S. at 352 (citing Ramos v. Lamm. 639 F.2d
559 (10th Cir. 1980). cert denied, 450 U.S. 1041
(1981); Williams v. Edwards, 547 F.2d 1206 (5th
Cir. 1977); Gates v. Collier. 501 F.2d 1291 (5th Cir.
1974); Pugh v. Locke. 406 F.Supp. 318 (M.D. Ala.
1976) aff'd as modified. 559 F.2d 283 (5th Cir.
1977), rev'd. in part on other grounds. 438 U.S. 781
(1978) (per curium).

Brennan, Blackmun, Marshall and Stevens
that federal courts are a "critical force"
for prison reform. 452 U.S. at 359. As
justice Blackmun put it, federal courts
must be a bastion against policies that
would make imprisonment an "open
door for unconstitutional cruelty or
neglect." 452 U.S. at 369.
Given the seriousness of the overcrowding crises, there are troubling aspects of the Chapman decision. Most disquieting is that the Chapman majority
raised the requirements of proof for a
finding of uncoAStitutional overcrowding.
Proving that many more prisoners are
housed in a prison than it was designed
to hold will no longer require a finding
of unconstitutionality. Nor will proof
that professionally recognized minimum
standards have been violated compel
court-ordered population reductions.
Experts, while still essential, are no
longer enough to carry the day. In the
post-Chapman world, litigators must do
much more than we early prisoner
rights lawyers needed to do. Now they
must prove in vivid details that the actual effect of prison overcrowding is
ruinous. To succeed they must demonstrate that the conditions' actual effect
on inmates falls below the bottom line
of human existence.

Experts, while still essential, are
no longer enough to carry the day.
My quarrel with this stems from my
belief that the approach of many of the
pre-Chapman opinions was not, as the
majority suggests, wrong. Minimum standards do matter; experts do count; design capacities do not descend from the
air. The Chapman majority's depreciation
of these criteria, makes prison overcrowding litigation unnecessarily difficult.
When these holdings are added to the
tone of the Court's majority opinion,
which at its best, provides only a grudging acceptance of federal courts in the
correction of overcrowding in prisons,
an environment is created in which far
more overcrowding than should exist
can be condoned.

The Impact of Chapman on Lower
Court Overcrowding Cases
In the years since Chapman, prisoners' rights litigation has continued. As
one might expect, much of it has focused on overcrowding. I have tried to
figure out how Chapman has influenced
the conduct and the results of that litigation by examining the reported
decisions.
The good news first. The obviously
restrictive approach of the Supreme
Court majority has not stopped many
federal courts from acting when faced
-continued on next page
WINTER 1987

.18_111.11.11_._mi·

5

_

-continued from previous page

with grave claims of overcrowding. In a
host of cases, many brought by the National Prison Project, lower courts have
enjoined overcrowding when it has been
shown to cause deplorable prison conditions. Those courts have focused on the
totality of conditions affected by the
overcrowding. They have looked at the
basic architecture and design of the facility and have calculated the impact made
by the increased numbers upon such
basic components of a living environment as heat, ventilation, lighting, sanitation, and food services. They have also
been concerned with the effect of overcrowding on the level of activities that
can be provided and the ever-present
danger of violence in the institution.
When overcrowding has caused the facility to slip below the "bottom line conditions of basic human existence," Jackson
v. Gardner, 639 F.Supp. 1005, 1010 (ED.
Tenn. 1986), it has been found to be unconstitutional.s The reality of prison life
in America in the 1980s is that many
prisons are so deplorable they are unfit
for human existence, much less advancement, and thus satisfy the test for unconstitutionality. Indeed, in its latest calculation, the National Prison Project
reports that prisons in thirty-six states
are currently under court order to eliminate unconstitutional prison conditions.9
Thus, after Chapman it is fair to say that
federal courts continue to playa crucial-indeed, an indispensable-role in
offering hope for hundreds of thousands
of citizens who are incarcerated under
unnecessarily harsh conditions in prisons
in the United States.
Unfortunately, this is not the full
story. The federal reporters now also
contain decisions in which lower courts
have felt constrained by Chapman to accept a level of overcrowding that in the
pre-Chapman days almost certainly
would have been found unconstitutional.
In Smith v. Fairman, 690. F.2d 122 (7th
Cir. 1983), the Seventh Circuit reversed
Bcody v. Hillard, 199 F.2d 447 (8th Cir. 1986) rehearing ordered. Toussaint v. Yockey, 722 F.2d 1490
(9th Cir. 1984); Wellman v. Faulkner, 715 F.2d 269
(7th Cir. 1983); Ruiz v. Estelle, 679 F.2d 1115 (5th
Cir. 1982); Reece v. Gragg, 650 F.Supp. 1297 (D.
Kan. 1986); Palmigiano v. Garrahy, 639 F.Supp. 244
(D.R.I. I986); Jackson v. Gardner, 639 F.Supp. 1005
(E.D. Tenn. 1986); Albro v. County of Onondaga,
627 F.Supp. 1280 (N.D.N.Y. 1986); Monmouth
County Correaional Inst Inmates v. Lanzano, 595
F.Supp. 1417 (D.N.J. 1984); Fischer v. Winter, 564
F.Supp. 281 (N.D. Cal. 1983); Benjamin v. Malcolm,
564 F.Supp. 668 (S.D.N.Y. 1983); Grubbs v. Bradley,
552 F.Supp. 1052 (M.D. Tenn. 1982); McMurry v.
Phelps, 533 F.Supp. 742 rN.D. La. 1982); Dawson
v. Kendrick, 527 F.Supp. 1252 (S.D.W. Va 1981).
9 ACLU National Prison Project, Status Report: The
Courts and Prisons, (March I, 1987), reprinted in Ira
Robbins, Prisoners and the Law, Appendix B (Rev.
1987).

6 WINTER 1987

Supreme Court Summary
David B. Goldstein
During the 1986-87 Term, the Supreme Court continued its assault on
prisoners' exercise of fundamental constitutional rights. At the same time, the
Court indicated that it is not quite prepared to reduce to empty rhetoric the
oft-stated principle that inmates do not
shed their constitutional rights by virtue
of their incarceration.

David Goldstein was the ACLU's 1986-87
Karpatkin Fellow. He is currently an associate at Rabinowitz, Boudin, Standard,
Krinsky, & Lieberman in New York City.
a lower court that had ordered an end
to overcrowding in a hundred-year-old
facility in which 56% of the prison population were double-celled in cells that
offered no more than 33 square feet per
person. In Dohner v. McCarthy, 635
F.Supp. 408 (C.D. Cal. 1985), a court
held that housing 4,000 people in a
prison designed to accommodate only
2,400 was not unconstitutional. The
court recognized that the conditions
were an "ordeal," but, because of Chapman, refused to act. 635 F.Supp. at 430.
In Delgado v. Cady, 576 F.Supp. 1446,
1448 (ED. Wis. 1983), the court recognized that double-ceiling is "among the
most debasing and most dehumaniZing
aspects of present prison life. It rips
away the sense of privacy--of dignity
which can make bearable many things
which would not otherwise be endured." Nevertheless, even though the
overcrowding in the prison was "highly
offensive to human dignity," the court
refused to act based on Chapman. Id. at
1457.
To be sure, in some of these cases
the conditions were not quite as bad, as
a general matter, as conditions in those
cases in which courts did intervene. Also
in some of the cases prison administrators had made good faith efforts to cope
in a less chaotic way with the effects of
the overcrowding. While conditions may
not be as subhuman as in those in which
courts have responded, the consequences of overcrowding were, nonetheless, demonstrated to be quite serious. Moreover, the good faith attempts
of administrators to cope, while admirable, cannot compensate for conditions
that reduce life to a quest for mere
survival. 1o
The Significance of Chapman

Chapman did not close the courthouse doors to prison overcrowding
IOFor additional cases which fit into these categories and deny relief even though the prison or

In two cases, Turner v. Safley, 107
S.Ct. 2254 (1987), and O'Lone v. Estate
of Shabazz, 107 S.Ct. 2400 (1987), a 5-4
majority rejected prisoners' claims that
their First A':l'lendment free speech and
free exercise rights, respectively, were
violated. In Turner, the Court also found,
unanimously, that a near-ban on inmate
marriages was unconstitutional. In a third
case, Board of Pardons v. Allen, 107 S.Ct.
2415 (1987), the Court, 6-3, found that
Montana's parole statute created a liberty interest in parole protected by the
Due Process clause.
cases. Federal courts have remained
available even after Chapman when there
are lawyers with the skill and resources
to use them to meet the high standard
of proof imposed by the Court. Indeed,
the record achieved by lower federal
courts in improving the lot of those
caught in the f100dtide of overcrowding
in the years following Chapman is both
impressive and important. But, it would
be incorrect to suggest that Chapman
has not had a discouraging effect on the
conduct of overcrowding litigation. It .
has forced some courts to tolerate debilitating levels of overcrowding, and it has
limited others to only those situations in
which the overcrowding caused conditions to deteriorate to a point of near
collapse. We all bear the consequences
of this development. In a real sense, the
Supreme Court in Chapman contributed
to the overcrowding crisis. Had it not
ruled as it did the explosive effects of
overcrowding could have been dealt
with before great damage is done. Now
we must wait. Because this has happened, I, for one, will not praise Rhodes
v. Chapman. I11I'II

jail was overcrowded, see, e.g., Union County Jail
Inmates v. DiBuono, 71 3 F.2d 984 (3rd Cir. 1983)
(It was agreed that the jail was "seriously overcrowded". Id. at 986. Conditions were constitutionally permissible, however, since inmates had
time away from their cell and the basic physical facilities such as plumbing, ventilation and heating
were minimally acceptable); Nelson v. Collins, 659
F.2d 420, 427 (4th Cir. 1981); Miles v. Bell, 621
F.Supp. 51, 62 (D. Conn. 1985) (Although overcrowding made the prison uncomfortable and inconvenient, conditions are held to be constitutional); Lovell v. Brennan, 566 F.Supp. 672 (D. Me.
1983) (Court found conditions to be "unpleasant,
if not harsh." Id. at 687. Conditions were held to
be constitutional, however, because inmates were
provided with adequate food, clothing, medical
care, mental health services, shelter, sanitation,
lighting and ventilation. Id. at 688. Capps v. Atiyeh,
559 F.Supp. 894, 904 (D. Or. 1983).

I

Clearly, Turner was the Term's
most significant, and devastating, prisoners' rights case. The inmates claimed
that the complete ban on inmate-toinmate correspondence (except between
immediate family) to and from their
prison violated their free speech rights.
They also claimed that the prison policy
of authorizing inmates to marry only
in cases of pregnancy or childbirth,
whether or not the partner was another
inmate or an outsider, violated the constitutional right to marry.
Justice O'Connor's opinion for the
Court first embraced the "rational relationship" test-the standard that is least
protective of constitutional rights and
most deferential to government officials-as the uniform standard of review
for all constitutional claims by prisoners.
As framed by the Court, "when a prison
regulation impinges on inmate's constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests."
The Court rejected reliance on Procunier v. Martinez, 416 U.S. 396 (1974),
which had established a heightened standard of review for restrictions on inmate correspondence with outsiders.
Arguments that the standard of review
should depend on whether the restricted activity is presumptively dangerous and that First Amendment rights are
entitled to heightened judicial protection
were also rejected.
Justice O'Connor elaborated four
factors in considering whether a regulation met this deferential standard. This
explication makes it clear that the Court
expects lower federal courts to ignore
all but the most egregious or unwarranted restrictions on constitutional
rights. These factors include:
I) whether the connection between the regulation and the asserted
penological goal is so remote as to be
arbitrary and irrational;
2) whether alternative means of
exercising the right remain open to
prisoners;
3) whether accommodation will
have an impact on other inmates, prison
guards, and prison resources generally;
and
4) whether there are "obvious,
easy alternatives [which] may be evidence that the regulation ... is an 'exaggerated response' to prison concerns."
Accommodations must impose no more
than de minimis costs upon penological
interests, and even costless alternatives
would only be evidence of unreasonableness. This is the only insignificant modification of the rational relationship test
traditionally applied to economic regulation, in which the availability of alternatives is generally irrelevant.
Th~ Court then applied this highly

deferential standard to the two claims,
with inconsistent results. The Court
found that the correspondence restrictions were promulgated primarily for security concerns and that correspondence
between inmates can communicate escape plans, be used to arrange violent
acts, and coordinate prison gangs. Thus,
according to the Court, there was a logical connection between banning inmate
correspondence and maintaining security.
In the most potentially damaging
remarks in the opinion, the Court stated
that the ban "does not deprive prisoners
of all means of expression," but only
bans all communication with a particular
group. The dangers inherent in using
such a generic view of "expression" as a
sufficient alternative to the particular
claimed right is obvious. Finally, the
Court found that alternatives such as examining prisoners' mail would impose
more than a de minimis burden on the
prison system.
The Court then struck down the
marriage restrictions. It rejected the security of avoiding love triangles by positing the alternative of individualized decisionmaking, which the Court considered
a de minimis burden. It then rejected the
rehabilitative concern of protecting
women from dependent relationships
because the regulation "sweeps much
more broadly" than that goal would
warrant, but failed to explain why this
language was not applicable to the correspondence ban.
Justice Stevens' dissent on the correspondence ban, which highlighted the
speculative and unsubstantiated nature of
the government's evidence, only served
to emphasize the extraordinary lengths
to which the majority would go to uphold restrictions on prisoners' rights.
While agreeing with the majority's result
on the marriage claim, although not its
reasoning, Justice Stevens did not miss
the irony of the Court's conservative
bloc protecting the nontextual right to
marry, but not the explicit constitutional
right of free speech.
In Shabazz, lower security inmates
were assigned to outside work details to
relieve overcrowding and for rehabilitative purposes. As a result of a "noreturn" policy, the Moslem prisoners on
these details could not attend Jumu'ah,
the religion's central and only obligatory
and congregational service, which is held
on Friday, the Moslem Sabbath, in the
early afternoon. Ironically, the maximum
security inmates could attend Jumu'ah.
Applying Turner, the Court, per
Chief Justice Rehnquist, not surprisingly
found the outside work detail logically
connected to relieving overcrowding and
the "no-return" policy as reasonably related to the security problem of returning through the prison gate. Less defen-

sible was the Court's acceptance that a
rehabilitation rationale of replicating the
work week could override the inmates'
right to attend their central worship
service, and that the prison overcrowding could be used as a basis to deny fundamental rights.
As in Turner, the Court found the
availability of alternative means of practicing Islam sufficient, even if the inmates
were banned from Jumu'ah. The Court
rejected the obvious alternatives of an
inside Friday work detail because it
would defeat the goal of relieving overcrowding, but also because it could lead
to the creation of "affinity groups,"
which officials testified would inevitably
challenge the prison authorities.
The Court closed with a firm admonition that it would refuse, even under the First Amendment, to substitute
its judgment for that of prison officials.
Justice Brennan's eloquent dissent,
which, like that of Justice Stevens in
Turner, focused on the paucity of the
State's evidence, again emphasized the
degree of deference the Court insists on
paying to the unsubstantiated, speculative testimony of prison officials. The
dissent was particularly troubled by the
implausible "affinity group" claim, which
carries the potential to deny prisoners
an array of associational rights and of
subtle discrimination.
In Board of Pardons v. Allen, the
Court broke no new ground. It reaffirmed a 1979 decision which held that
the presence of a parole system does
not itself give rise to a protected liberty
interest in parole release, but that the
mandatory language of the Nebraska
statute did not create such an interest,
despite the inherently subjective and
predictive nature of parole decisions.
The Montana statute at issue in AlIen likewise used mandatory language to
create a presumption that parole would
be granted when designated findings
were made, even though the required
findings granted parole officials broad
discretion. The court found that the
statute sufficiently cabined this discretion
to create a liberty interest subject to
procedural due process protections. The
Court rejected the State's suggestion
that a liberty interest is created only if
the statute is as explicit in its presumption as the Nebraska law.
Unfortunately, unlike Turner and
Shabazz, Allen is of limited impact since
the wording of parole statutes varies
from state to state, and because the
state legislature can simply change its parole statute to eliminate a protected liberty interest. II

WINTER 1987 7

Death Penalty Law Still
Tolerates Inequities
Katy Baird
Four years after Furman v. Georgia
(1972) invalidated existing capital punishment schemes as arbitrarily applied,
Gregg v. Georgia (1976) upheld statutes
which provided "guided discretion" in
imposing the death penalty. Such statutes separate the guilt and sentencing
prQ,ceedings of capital trials. After conviction for first-degree murder, or capital murder as otherwise defined, evidence is presented in aggravation or
mitigation of sentence. If the jury finds
that one or more statutory "aggravating
circumstance"---e.g. the murder occurred in commission of a felony-applies, they may impose the death penalty. Concurrently with Gregg, Roberts v.
Louisiana and Woodson v. North Carolina
held mandatory death sentences unconstitutional. Jurek v. Texas upheld a unique
system where defendants convicted of
capital murder must be sentenced to
death if the jury answers three questions
affirmatively, including whether the defendant poses a future danger to society.
Furman, Gregg and many subsequent
Supreme Court cases entail the Eighth
Amendment's ban on cruel and unusual
punishment. The evolving case law exhibits a doctrinal tension created by the
cases' polar mandates of "guidance" and
"discretion." The "guidance" promised
by the statutes upheld in Gregg, supposedly rendering death sentences uniform,
predictable and fair, has been eroded by
later cases sanctioning varying degrees of
"discretion." In Zant v. Stephens (1983)
one of several aggravating circumstances
tainted the sentence. Barclay v. Florida
and Wainwright v. Goode (1983) upheld
death sentences where the trial courts
had considered invalid or illegal factors.

Katy Baird is a graduate of Northeastern
University Law School and a former NPP
law intern. This article was written while
she was an intern at the NAACP Legal
Defense Fund.

In Pulley v. Harris (1984), the Court held
that a state-wide proportionality review
of cases where the death penalty had
been imposed was not constitutionally
required.
The Supreme Court's relaxation of
its previous curtailments on capital punishment illustrates the fluctuating Eighth
Amendment doctrine. Although Enmund
v. Florida (1982) forbids a death sentence
for one who "does not kill, attempt to
kill or intend to kill the victim," Cabana
v. Bullock (1985) allows a state trial or
appellate court to determine whether
such intent exists after a jury has sentenced the defendant to death. Enmund
was severely limited this term in Tison v.
Arizona (1987). Tison validates the death
penalty for two boys whose father murdered a family following a prison escape.
Although the boys did not participate in,
anticipate or condone the killings, their
aid in the escape showed a sufficient
"reckless disregard for human life" to
justify a death sentence.
Although a judge may instruct the
jury "not to be swayed by sympathy,
passion, prejudice or public opinion" in
sentencing under California v. Brown
(1987), the Court has refused to allow
restraints on mitigating evidence. Lockett
v. Ohio (1978) held that "any aspect of
the defendant's character or record and
any of the circumstances of the offense
that the defendant proffers as a basis for
a sentence less than death" must be admitted into evidence. Eddings v. Oklahoma (1982) found that a trial court's
refusal to consider the defendant's violent family history in mitigation of sentence was constitutional error. Exclusion
of prison guards' testimony regarding a
death row inmate's adaptability to prison
life was also found unconstitutional in
Skipper v. South Carolina (1986). Recently, Hitchcock v. Dugger (1987) held
portions of Florida's death penalty law
unconstitutional for limiting mitigation to
a statutory list of considerations.

The Court has carved some specific
Eighth Amendment exceptions to the
death penalty. Coker v. Georgia (1977)
held the death penalty disproportionate
and unconstitutional for the rape of an
adult woman where the victim is not
killed. The Court has prohibited execution of the insane as "cruel and unusual"
in Ford v. Wainwright (1986), and heard
arguments last November in Thompson v.
Oklahoma to determine whether the
Eighth Amendment likewise bans the
execution of juveniles.
The thorClugh and exacting advocacy compelled by the threat of a death
sentence has been met, ironically, with
cases allOWing expedited federal court
review (Barefoot v. Estelle, 1983), dismissal of constitutional claims for 'procedural default' (Smith v. Murray, 1986),
and a difficult standard for proving ineffective assistance of counsel (Strickland v.
Washington 1984). The Court has at
times candidly refused to burden the
criminal justice system with constitutional strictures. Lockhart v. McCree
( 1986) allowed potential jurors whose
attitudes toward the death penalty might
influence their sentencing decision to be
removed from the guilt phase of a capital trial, even though conviction-prone
juries result. The alternatives to accepting juries more prone to convict than an
average sampling of citizens were considered too cumbersome to be constitutionally reqUired.
This term death penalty jurisprudence came full circle to countenance the
arbitrary and discriminatory sentencing
outlawed in Furman v. Georgia (1972).
McClesky v. Kemp (1987) rejected proof
of the racially discriminatory application
of Georgia's death penalty scheme. The
Court held that discretion was inherent
in the criminal justice system, and the
defendant had failed to prove discriminatory intent in his individual sentencing.
Again, the Court refused to burden the
system by applying the equal protection
standards of, for example, employment
discrimination suits. In forgiving the
states' failure to gUide the sentencer
past racial bias, the Court has clarified
Gregg v. Georgia's legacy: "guided discretion" in death sentencing tolerates inequity as long as procedural contours
remain. I11III

Drawing by Martim Avillez.

8 WINTER 1987

r

Victim and Offender Participation
Important to Criminal Sentencing Process
Russ Immarigeon

Victims and Sentence Planning

Several years ago, Joel Henderson
and G. Thomas Gitchoff, sociologists
from the San Diego State University,
wrote a series of articles describing their
experiences as private consultants preparing sentencing plans for convicted
criminal offenders. Although their work
focused on finding community-based alternatives to incarceration for their
clients. they found that the quality of
their work was improved when they
asked crime victims for their views on
appropriate punishments for the person(s) who victimized them.
Russ Immarigeon is the Associate Editor of
Criminal Justice Abstracts, and a freelance writer specialiZing in criminal justice

issues.

I
&)

I>

f?;

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Russ Immarigeon, "Surveys Reveal Broad Support
for Alternative Sentencing," NPP JOURNAL, Number 9. Fall 1986. pp.I-4; Nigel Walker and Mike
Hough, eds., Public Attitudes to Sentencing: Surveys
from Five Countries, Brookfield, VT: Gower Publishing Company. November 1988.
"The U.S. Department of Justice is trying to nip
this possibility in the bud. The Bureau of Justice
Statistics recently sponsored a national public opinion survey which pronounced that "Americans
overwhelmingly support incarceration as the most
appropriate punishment for criminals." The findings
from this survey differed dramatically from a
wealth of state, national and international studies.
and preliminary reaction to the study suggests significant methodological and conceptual flaws. A detailed analysis of this study, and its poliCY implications. will appear in the next issue of the
JOURNAL
I

Henderson and Gitchoff made five
generalizations about crime victim participation in alternative sentence planning: victims initially want their victimizer imprisoned in many cases; victims
were uninformed. however. about possible sentencing options available to the
court; probation pre-sentence reports
containing retributive statements from
crime victims resulted when probation
officers offered them no alternative
choices; victims were Willing to abandon
retributive views if given a meaningful alternative; victims were increasingly interested in alternatives to incarceration
for their victimizers as time passed after
their victimization; and. lastly, victim
views on appropriate punishment were
influenced by how and by whom they
were asked for their input.
"We have found," Henderson and
Gitchoff concluded, "that when victims
are interviewed directly after the crime
they are much more prone to desire
harsh retribution than when they are interviewed or re-interviewed several
weeks after the crime has occurred. This
may be due in part to a 'cooling off period when the victim reflects on the circumstances of the offense and may have
received ministerial or familial counseling. We have found that information on
sentencing is crucial to obtaining victim
agreement on alternative sentencing.
We also found that a professional interviewing on behalf of the defendant ap-

"Our legal process does not
encourage accountability on the
part of offenders."
pears to be an important factor influencing the victim's views on sentencing."3
In a later article. Henderson and
Gitchoff reported some statistical evidence supporting their generalizations. In
late 1979, Albert Santiago, their research associate. interviewed 20 felons
serving long-term sentences in a Nevada
prison for non-violent property and drug
offenses. Henderson and Gitchoff interviewed more than I00 victims over a 9year period. Together, they found that
offenders were not given an opportunity
to make restitution, victims were not
given relevant alternative sentencing information. most victims (not young or
well-to-do victims) were initially interested in incarcerating their offenders but
they were less likely to press their option when given alternative sentencing
arrangements were described to them.
Victims were also likely to want harsh
penalties when interviewed shortly after
their victimization but were attracted to
-continued on next page
'Joel Henderson and G. Thomas Gitchoff. "Using
Experts and Victims in the Sentencing Process,"
Criminal Law Review, 17(3): May-June 1981, pp.229231.

WINTER 1987

9

-continued from previous page

alternatives to incarceration when given
information by well-informed probation
officers. 4

Victims v. Offenders
The experiences and findings of
Henderson and Gitchoff are rarely observed in political debate about crime
and punishment in our society. A more
dominant force is the inaccurate perception that offenders' rights and interests
are inherently antagonistic to victims'
rights and interests. George M. Anderson has put this dilemma in historical
context:
"One of the fastest-growing movements in the 1980s has been the victims'
rights movement," he recently observed.
It represents a heightened indignation on
the part of women and men who have
been harmed through violent crime and
feel ill-served by a judicial system seemingly indifferent to their anguish.
"Reacting to this anguish in a concerted manner, members of victims'
rights groups around the country have
successfully pressed for the enactment of
statutes addressing their concerns. Many
jurisdictions have made provisions for
separate waiting areas for victims who
must testify against their assailants in
court. More Significantly, a majority of
states now have victim compensation
funds, which help defray medical and
other costs connected with injuries incurred as a result of crime.
"However beneficial such legislation
may be for victim assistance," Anderson
found, "there exists another underlying
concern that has become a source of
worry to civil libertarians. If statutes
passed during the last few years have
carried the message of 'help the victim,'
aspects of the same legislation have, in
their view, carried a parallel message:
'Punish the offender more.'''s
Neither Victims Nor Offenders
Are Heard
Victims and their advocates have
rightly decried the invisibility imposed
upon them by criminal justice practitioners who are normally invested in other
organizational concerns (arresting the offender, convicting the offender, defending the offender and punishing the offender). Not too surprisingly, offenders
are often routinely overlooked in the
criminal sanctioning process. Offender
contributions are belittled because they
~oel

H. Henderson and G. Thomas Gitchoff. "Victim and Offender Perceptions of Alternatives to
Incarcertion: An Exploratory Study," South African
Journal of Criminal Law and Criminology. 7(1): March
1983, pp.46-50.
sGeorge M. Anderson. "The Victim's Rights Movement: Backlash on the Offenders," The California
Prisoner. 16(4): September 1987. p.6.

10 WINTER 1987

seem to have too much self-interest. 1
remember well a visit to Manhattan's
criminal court several years ago where I
observed the work of a local community
service program. The prosecutor, defense attorney and program liaison all
stood before the sentencing judge who
inqUired about the offender's history of
drug use. Neither the prosecutor nor
the defense attorney knew anything
about the offender's history; the community service program representative,
who had at least briefly interviewed the
offender, was not concerned, one way
or the other, about the offender's drug
use. The judge never received an answer
to his question, and no one seemed
innovative enough to step back several steps to ask the offender himself
as he stood, silently, behind these
practitioners.
With regard to victims, an important question remains what happens
when victim interests differ from prosecutorial or court interests. Anecdotal
evidence exists to show that courts have
listened to victims wanting sentences different than prosecutors have recommended or they would have normally
imposed. The Connecticut Center for
Sentencing Alternatives, for instance,
was recently involved in a case where
a 62-year old man, convicted of manslaughter in the "crime of passion"
shooting death of his wife, was returned
to the custody of his family. "I loved my
sister," the victim's sister told the court,
"but I love (the convicted offender) very
much also. We want him home." The
man was sentenced to a suspended I0year sentence, along with immediate inpatient evaluation and long-term outpatient counseling. 6
More commonly, however, evidence suggests that victim recommendations are overpowered by prosecutorial
arguments for incarceration or other
harsher punishments. Paul Landkroner,
the assistant director of Porter County
PACT, recently recounted that a victim
helped his organization prepare a nonincarcerative sentencing plan for one of
PACT's offender clients. The local prosecutor, however, objected, and the offender was incarcerated by the court.
This sort of thing happens repeatedly.
One must consider, too, what societal
benefits are lost when prosecutors consistently reject well-planned community
service plans, something which happens
regularly for a program operated by the
Pennsylvania Prison Society.

Breaking the Victim-Offender
Logjam
Several years ago, at an annual
"Lynne Tuohy, "Family of Slaying Victim Wins
Mercy for Her Killer." The Hartford Courant, March
27. 1987. pp.AI, A12.

meeting of Victim-offender reconciliation
program (VORP) practitioners, a representative of a victims' rights advocacy
group presented a keynote address
which angered those in attendance who
were looking for a serious discussion of
what victim and offender advocates had
to offer one another. The keynote
speech--an unavbidably moving but overbearing recitation of various victims'
pain--was an unfortunate failure because
VORP practitioners are keenly sensitive
to both victim and offender issues. Unlike most victi"\ or offender advocacy
organizations, tney do not focus on one
group to the exclusion of the other.
They recognize, along lines discussed
by Norwegian criminologist Nils Christie,? that both groups are involved in a
conflict out of which comes certain
needs reqUiring concerned attention.
VORP practitioners try to address the
concerns of both parties; they are organizationally and philosophically opposed
to coercing the needs of one group
against the other.
Several clarifications are necessary,
therefore, to debunk the notion that alternatives to incarceration or other offender-oriented proposals are largely
contrary to victim needs.
Offender-oriented advocates have
long urged greater sensitivity to victim
needs. The Prison Research Education
Action Project (PREAP), for instance,
wrote, in Instead of Prisons, a prison abolition handbook originally published in
1976, that "all physical threats of violence must be dealt with seriously by
both the community and individuals."
PREAP argued, moreover, that a victim
empowerment approach "directed toward true solutions" to rape and other
crimes of violence should "include
changing values and attitudes about girls
and women and creating the kinds of attitudes that provide opportunities for
re-educating and resocializing rapists and
other potential sexual aggressives.,,8
PREAP, now renamed The Safer Society
Program, has, for the past seven years,
continued work on developing a caring
community response to victims and offenders; this work includes a broad
range of publications discussing various
aspects of community-based and residential treatment programs for juveniles and
adult sex offenders. 9
7Nils Christie, "Conflicts of Property," British JournalofCriminology. 17(1): January 1977. pp.I-19;
Nils Christie, Limits to Pain, Oxford, U.K.: Martin
Robinson. 1981.
BFay Honey Knopp. et aI., Instead of Prisons: A
Handbook for Abolitionists. Syracuse, NY: Prison Education Action Project. 1976. p.137.
"The Safer Society Program has issued the following publications: Remedial Intervention in Adolescent Sex Offenses: Nine Program Descriptions
(1982); Retraining Adult Sex Offenders: Methods
and Models (1984); A Preliminary Survey of Ado-

Victim-oriented advocates have also
seen that alternatives can serve the interest of their clients. A recent conversation with John Stein, deputy director
of the National Organization for Victim
Assistance, found articulate support for
alternatives to incarceration that take
seriously the needs of persons victimized
by crime. Moreover, the idea that victims are antagonistic to measures that
benefit offenders, even those offenders
they were victimized by, belittles victims' compassion and sense of social
justice.
Conclusion

In the I960s, victim and offender
interests were more clearly distinct
when victims were almost entirely ignored, and when alternative sentences
for criminal offenders were oriented
more toward rehabilitation than punishment. In the 1980s, however, criminal
sentences, even those prepared by defense attorneys or defense-oriented sentencing specialists, are increasingly punitive or incapacitative. Offenders are now
commonly sentenced to victim-oriented
sanctions like restitution.
In the late I960s and throughout
the 1970s, prisoners gained an unprecedented amount of legal rights through
the concerted efforts of civil rights attorneys, supportive citizen groups, and
prisoners themselves. While individual
rights are still threatened daily in most
penal institutions in the United States,
the U.S. Constitution, with its Bill of
Rights, at least has a foothold in the administration of these institutions as a result of these efforts. Prisoners' rights
victories have been hard-fought and long
overdue, and many more prisoners'
rights victories are still needed, but they
have at least brought us one step closer
to a more democratic system of crime
control and criminal sanctioning.
In recent years, attorneys, citizen
groups and crime victims have created a
rapidly developing victims' rights movement that has significant (although somelescent Sex Offenses in New York: Remedies and
Recommendations (1984); The Youthful Sex Offender: The Rationale and Goals of Early Intervention and Treatment (1985); Report on Nationwide
Survey of Juvenile and Adult Sex-Offender Treatment Programs and Providers (1986); Treating the
Young Male Victim of Sexual Assault: Issues and Intervention Strategies (1986); A Model Residential
Juvenile Sex-Offender Treatment Program: The
Hennepin County Home School (1987); Female
Sexual Offenders: A Summary of Data from 44
Treatment Programs (October 1987); Informational Packet: Female Sexual Abusers (October
1987); and Sexual Offenders Identified as Intellectually Disabled: A Summary of Data from 40
Treatment Providers (November 1987). For information about the cost of these publications. contact The Safer Society Program. Shoreham Depot
Road. Orwell. VT 95760.8021897-7541.

NPP Celebrates 15 Years With
Memories of Past, Hope for Future
Jan Elvin
Over 250 people attended the 15th
Anniversary celebration of the National
Prison Project on October 24, 1987 in
Washington, D.C. A day of workshops
and discussions on the past and future of
prison litigation was capped off with a
dinner, a keynote speech, and the grand
finale--a roast of NPP Executive Director Alvin J. Bronstein. There was much
retelling of "war stories" from the early
years of prison litigation, shared memories, and personal anecdotes. Each one
was a reminder of how far the move-

Jan Elvin is the editor of the JOURNAL.
The NPP staff also contributed to this
article.
times unrecognized) similarities with the
prisoners' rights movement. Prisoners
and crime victims, for instance, are both
seeking a participatory voice in the criminal justice process. Both groups want
recognition; they no longer wish to be
ignored or considered insignificant in a
process in which they are intimately
involved.
Henry Adams once wrote that "democracy is shaking my nerves to pieces."
The role of victim and offender rights in
creating a more democratic system of
criminal justice is far from settled, but
evidence is gradually emerging that the
pieces of a more democratic response to
crime are falling into place. While procedural approaches to providing a full
sense of justice for victims and offenders
are still in the early stages of development, hope exists that victim and offender needs can take a preferential
place in courtrooms across the United
States.
A crucial component of such a shift
in criminal justice practice concerns the
way we think about criminal sanctioning.
Howard Zehr, who has helped architect
a grounded philosophy for emerging reparative sanctions such as victim-offender
reconciliation, writes cogently on this
topic.
"Victims have many needs. They
need to speak their feelings. They need
to receive restitution. They need to experience justice: victims need some kind
of moral statement of their blamelessness, of who is at fault, that this thing
should not have happened to them. They
need a restoration of power because the
offender has taken power away from
them."
Zehr argues that the criminal justice system in this country works neither for victims nor for offenders.

ment had come and how much had been
shared along the way. It was a day to
rediscover how much energy and creativity people still have, and be strengthened by it.
In what Norval Morris, Kreeger
Professor of Law, University of Chicago
Law School, call~d "a uniquely American
event," the Project brought together
prisoners' rights lawyers from around
the country, as well as advocates, academics, judges, criminal justice professionals, corrections professionals, and
former colleagues and friends. Except
for the prisoners, it seemed that everyone was there.
-continued on next page
"Our legal process does not encourage accountability on the part of
offenders. Nowhere in the process are
offenders given the opportunity to understand the implications of what they
have done. Nowhere are they encouraged to question the stereotypes and rationalizations that make it possible for
them to commit their offenses. In fact,
by focussing on purely legal issues, the
criminal process will tend to sidetrack
their attention, causing them to focus on
legal technical definitions of guilt, on the
possibilities for avoiding punishment, and
on the injustices the~ perceive themselves to undergo." I
Zehr suggests that both victims and
offenders need "an experience of empowerment." An equally crucial aspect
of this process is lessening reliance on
incarceration as a response to crime.
Writing about crime victim restitution,
Dan McGillis recently found that "this
goal does not appear to have been attained, and such a failure seems inevitable given the nature of the cases handled
by typical restitution mechanisms. Restitution efforts typically do not focus upon
cases in which incarceration is highly
likely or assured, and thus a relatively
low impact on prison and jail caseloads is
the result."11
What is needed, it seems, is the
merging of three goals- crime victim
restitution, victim and offender reparation, and jail and prison population reduction--into a cohesive and wellcoordinated criminal justice policy. III
IOHoward Zehr. "Retributive Justice. Restorative
Justice." Elkhart, IN: MCC Office of Criminal Justice. 1985.
"Daniel McGillis. Crime Victim Restitution: An Analysis af Approaches. Washington. D.C.: U.S. Dept. of
Justice. December 1986. p.67.

WINTER 1987

II

l

-continued from preViOUS page

Has Al Bronstein just
discovered that he's to
be the focus of the Special Roast scheduled for
the Anniversary's evening events?

One can only guess what
Ira Glasser (c.), Executive Director of the
ACLU, is saying to
Randy Berg of the Florida justice Institute.
john Coleman, former
president of the Edna
McConnell Clark Foundation, presented the
keynote speech at the
Anniversary Dinner.
William Bennett Turner,
lead counsel in Ruiz v.
Estelle, participated in
an afternoon symposium,
discussing the history of
prisoners' rights
litigation.
Erik Andersen, Governor
of Ringe Prison in Denmark, meets with conference guests.
Chan Kendrick, Director
of the ACLU of Virginia,
shares a joke with NPP's
jan Elvin.
NPP attorney Alexa
Freeman (c.) and Steve
Ney (r.), director of the
Maryland Disability Law
Center and former NPP
chief staff counsel, chat
with medical expert Dr.
Lambert King (I.) of St
Vincent's Hospital and
Medical Center.
Former NPP Associate
Director, Ralph Knowles,
(r.), and Randy Berg (I.)
of the Florida justice Institute, were among
those who attended the
Anniversary celebration.
Photos by Elizabeth Rolando.

12

During the morning sessions held at
the Georgetown University Law Center,
Claudia Wright and Elizabeth Alexander
from the Prison Project led workshops
on settlement and compliance issues
along with guest speakers Michael Lewis
and Linda Singer. Lewis and Singer are
professional mediators and are well
known for th,eir work in training lawyers
to negotiate effectively. They have both
also served in many cases as courtappointed special masters or monitors.
The highlight of the settlement workshop was a role--playing exercise in
which the participants were divided into
pairs and presented with a difficult factual situation to resolve by negotiation.
The range of settlement solutions to a
single problem was broad and prompted
a spirited and thought-provoking
discussion.
The compliance workshop focused
on developing new methods to achieve
meaningful long-term reforms after settlement. The presentation of new, experimental ideas sparked debate over
the virtues of traditional consent decrees versus agr~ements which include
the extensive use of experts, monitoring
arrangements, and provisions for voluntary dismissals after compliance is
reached.
Alexa Freeman of the Prison Project and Urvashi Vaid, former NPP attorney, now Public Information Director
with the National Gay and Lesbian Task
Force, led a workshop on the problem
of AIDS in prison. Vaid presented statistics on the number of reported HIV,
ARC and AIDS cases in various city jails,
state prisons and in the federal system
based upon data the National Prison
Project has received from its first survey
of AIDS in prison and preliminary results
from its second survey. The numbers indicate a growing AIDS crisis in the nation's jails and prisons.
Vaid highlighted the central issues
that have emerged. These include problems of AIDS testing in prison (who
should be tested, whether it should be
mandatory, availability of the test for
those who seek it, reliability of test results, use of test results, confidentiality,
cost, and availability and quality of counseling before and after testing); the
housing of prisoners with HIV, ARC
and AIDS (they are often segregated in
conditions comparable to punitive or
lock-down units); the lack of adequate
medical care for prisoners with ARC or
AIDS; and the rights of third parties to
notification of a prisoner's health status
versus the prisoner's right of privacy.
Freeman surveyed the handful of
cases that have been decided dealing
with issues of AIDS in prison. To date,
the courts have upheld prison officials'
decisions to segregate all infected pris-

WINTER 1987

_

oners and to test all prisoners for HIV
(as well as decisions not to test and segregate in cases brought by prisoners
seeking this), deferring to their expertise. However, as the crisis worsens,
these and other issues necessitate continued litigation to protect prisoners
from unconstitutional deprivations of
their rights.
After the presentations, the audience engaged in a lively and useful discussion. Many of those in attendance
were AIDS experts who contributed
enormously to the exchange. At the end
of the workshop all agreed that it was
critical to continue to meet to share information and strategies.
Adjoa Aiyetoro of the NPP and
Claudette Spencer, an attorney with the
Prisoners' Rights Project of the New
York Legal Aid Society, led a workshop
on· race discrimination in the criminal
justice system. Aiyetoro gave an overview of the types of race discrimination
found in prison and discussed the possibilities of mounting legal challenges to
those practices.
Spencer described how to convince
superiors to litigate these issues, and discussed the need to gather as many facts
as possible while incorporating these
facts into an appeal to the morality of
the decision-makers. She also described
the facts in a case involving a prison in
New York which led her office to file a
suit alleging race discrimination. These
facts include racial segregation in housing
and job assignments.
During discussion by the workshop
audience, the question of the dangers of
integration was raised. Some participants
gave examples of conflicts between racial groups when institution housing and
jobs are integrated. Others expressed
the belief that it was unfair to deny prisoners of color "good" jobs if violence
may erupt. The need for responsible
leadership from the administration and
staff of the institution including the development of a plan for integration was
suggested as a solution to this problem.
The history and future of prison litigation were th't! topics for the afternoon's symposium, and a distinguished
group of speakers led us through an
account of the changes that time has
brought. The Honorable Robert R. Merhige Jr., Senior Judge, United States District Court, Eastern District of Virginia,
began the session with a judge's perspective on the changes in prison Iitiga~
tion since the I960s. With particular
reference to Virginia's prisons, he commented on the many positive changes he
has seen after first describing the vile
conditions he encountered there 20
years ago.
William Bennett Turner, partner in
a San Francisco law firm, described the
movement from the early narrow and

single-issue prisoners' rights cases to the
systemic challenges to an entire state
system such as the one he led in Texas.
A final view of history came from Lynn
Walker of the Ford Foundation and former head of the Special Litigation Section, Civil Rights Division, U.S. Department of Justice. She recounted the
influential role that the Justice Department played in the I970s and spoke of
the work leading to passage of the Civil
Rights of Institutionalized Persons Act.
Philip Hirschkop, one of the founders of the NPP, shared his memories of
the early days, as well as his role in the
early stages of the prisoners' rights
movement.
Addressing the more difficult topic
of the future of prison litigation were
Vincent Nathan, partner in a Toledo law
firm and Special Master in several cases,
Allen Breed, President, National Council
on Crime and Delinquency, and Charles
Ogletree, Adjunct Professor, Harvard
Law School. All three stressed the continuing need for prisoners' rights litigation and the pressure for positive change
that it creates. We need to learn how
to end long-standing cases, stated Nathan, so that the pressure for change is
not counterproductive. Nathan has been
the special master in the Texas prison
litigation, Ruiz v. Estelle, which has gone
on for many years. The role that masters
have played in moving the parties away
from an adversarial relationship and into
a partnership for reform was stressed.
Allen Breed closed his remarks by
saying that "Even with citizen and foundation support of civil rights issues, committed attorneys who literally give their
professional lives to the adversarial process of righting wrongs, and courts that
are willing to make findings of fact and
conclusions of law regarding unconstitutional conditions--even with all these
forces--changes in prisons and jails will
not take place without the partnership
of concerned and professional correctional staff. Staff who, in most cases,
given the resources and opportunities,
can and do make conditions of confinement fair, safe and humane.... It is
hoped that conciliation rather than litigation will be the watchword of the
tomorrows."
But it was Charles Ogletree who
reminded us just what it is all about.
Decency-he said-the treatment of
prisoners as fellow human beings, was
the most important result of the movement and must continue.
We all enjoyed remarks by Erik
Andersen, a visitor from Denmark. Andersen is the Governor (Warden) of the
national maximum security prison at
Ringe in Denmark, where criminal justice policy is much more enlightened
than in this country. He spoke eloquently, saying that when prison life is so

tedious, "how can we expect rehabilitation?" Recidivism is a meaningless way to
measure the effectiveness of our criminal
justice policies and practices, Andersen
added, when we know that crime is the
result of larger social problems. His
views were so refreshing that Norval
Morris later called Andersen a "fantasy
Warden, from a make-believe land in
Western Europe."
And, in the end, Norval Morris in
his wonderful and humorous way, reminded us all just how fortunate we are
to have jobs that are meaningful.
In his openihg remarks during the
evening dinner program, AI Bronstein
said that "whatever we few at the Project have accomplished during these 15
years has only been made possible by
the combined cooperation and support
of many, many other people. Praying
only that I do not overlook anyone, I
want to acknowledge that help now:
"First, Herman Schwartz, Phil
Hirschkop and Aryeh Neier who conceived of and put together the Project.
Without them there wouldn't be any
Project;
"The NPP staff over the years, 24
lawyers--consistently the most creative
and hard-working group of professionals
ever gathered under one roof;
"Over the years 44 support staff,
talented and committed and constantly
challenging the lawyers on how to do
things better;
"One hundred and ten interns and
law clerks who brought fresh thought
and new energy to all of us;
"The ACLU staff, the board, and
especially the ACLU affiliates who are,
after all, our eyes and ears out there.
They are what make us a truly national
project, and have been a great source of
help and support;
"Financial support from foundations,
law firms, churches and especially the officers and trustees of the Edna McConnell Clark Foundation, which is a
unique institution in charitable giving in
this country. They make major, longterm commitments, and work side by
side with their grantees to help make
things work;
"The experts who have gUided us
in our litigation, guided us when we
should not be litigating, helped us frame
lawsuits and implement decrees;
"The local counsel, legal services
lawyers, legal aid lawyers, ACLU affiliate
staff and cooperating lawyers, private
practitioners;
"Judges, both liberal and conservative, united in one common view-that
the Constitution applies to all persons;
"Corrections professionals, people
we have suecl-a named defendant in
one of our lawsuits is here tonight. In
growing numbers, there are people who
-continued on next page
WINTER 1987

13

I
"

-continued from previous page

want to run humane and lawful
institutions;
"And finally, our clients, the prisoners. The men and women who have
been willing to step forward, to work
with us, assist us, sometimes to lead and
direct us--without them there would be
no success for the Prison Project."
Ira Glasser, Executive Director of
the ACLU, had time in between debates
over the history of the Brooklyn Dodgers, to give a few remarks and to share
with us a telegram he had received from
Ed Meese. "Congratulations to the criminal lobby on its 15th Anniversary," it
read. Glasser stated, "AI and I are having
an argument over who gets to read him
his Miranda rights if he gets indicted."
Glasser recounted the beginnings of
the Prison Project, when Aryeh Neier
merged Herman Schwartz' and Phil
Hirschkop's projects. "Those people had
very little to go on, but they did have a
vision. What the Prison Project has accomplished to date gives us hope that
what can be accomplished in the future
will conform to the vision of those who
began it."
Keynote speaker John Coleman,
former president of the Clark Foundation, now owns and operates a country
inn in Vermont. He lives in a town with
"no traffic lights, no cells and one pizza
parlor. There are more innkeepers in
the town than all the lawyers and ministers put together." Coleman told us, "If
you ever begin to lose sight of how
much you have done, take the 15th Anniversary issue of the JOURNAL and read
the parts about the doghouse in Alabama. That is all you need. That doghouse in Alabama was in our time. That
doghouse is not there today."
He went on to tell the crowd,
"You have combined head and heart.
That's why I like the Project so much
and could argue for it with such deep
conviction in the foundation. You
brought head and heart together. AI
Bronstein is an outstanding example
of that-a brfl1iant mind and a warm
heart."
"You have still got a long road
ahead," said Coleman. "Whatever it is
that stands in your way, that too will
pass." He quoted Roger Baldwin, founder of the ACLU, who said that one need
only "live long enough to see what
seemed like defeats turn into victories."
After pointing out that "you would
have to be out of your mind to get up
in front of 250 people and make fun of
AI Bronstein," Glasser introduced the
roasters for the evening, Matt Myers,
former chief staff counsel at the Project,
and Urvashi Vaid, former NPP staff attorney. Matt spoke of how, at 5'8", he
wondered why he was always the tallest
14 WINTER 1987

lawyer on the NPP staff. He soon realized that the only attribute that really
mattered was that prospective attorneys
be shorter than AI.
"No one has taught me more about
the art of cross-examination than AI,"
Myers continued. During the Alabama
case a warden from the diagnostic facility was brought in to testify. Myers described Billy Long as a "truly enlightened
individual," who asserted vehemently on
direct examination that the reason there
were so much violence and so many assaults at his facility was that fully "50%
of the prisoners who passed through
were homosexuals."
At that, Bronstein said, "I'll do this
cross-examination." Bronstein stood up,
leaned over to Billy Long, and the following exchange took place:
Bronstein: Mr. Lo~g, how is it that
you know that fully 50% of those folks
are homosexuals?
Long: Well, I asked them.
Bronstein: I assume it was solely
out of prurient interest?
Long: Of course!
Myers could not resist a serious
moment, however, and spoke to the recurring theme of Bronstein's "long-term
commitment." "Over the years,
hundreds of students, dozens of lawyers
have passed through the Project, and
not one of them has not been impacted
by AI, by his spirit, his commitment to
the civil rights movement, and by his
legal skills."
The next roaster, Urvashi Vaid,
claimed that Bronstein's ego is one of
the Prison Project's secret weapons. "It
has a devastating effect on corrections
chiefs. Whenever we reach an impasse in
negotiation we bring in AI. He walks in,
stands there rocking back and forth on
his heels, and growls. Attorney generals
back down, judges address him deferentially, prisoners sign settlement agreements, and corrections officials feel like
he's one of the guys!"
The evening ended with remarks by
Ralph Knowles, former Associate Director of the Project and a friend of AI
Bronstein's for many years. Knowles
said, "I know that AI would not want
me to get up here and simply propose a
toast to AI Bronstein. As he has mentioned, there are many other people
who come into the circle." He mentioned prisoners, experts, Iitigators, masters and monitors, foundations, and the
entire group of prisoners' rights advocates. Finally, to AI, he said,"You have
been in this emotional and stressful, low
payoff business for years. Some of us
come and go. You have remained hopeful throughout and have always maintained enormous sensitivity to the rights
of all people, particularly those who
other people don't have respect for. We

love you. Keep on for another 15 years
and we'll be back for another
party." III

For the Record
• Joining us as a Staff Associate is Olinda
Moyd, previously at the NAACP National Office in Baltimore where she was
a paralegal and coordinator of legal research. At NAACP she worked on
school discrimination, voting rights, employment discrimination and fair housing
cases.
•
A number of staff members have
recently been promoted:
Claudia Wright is now the Associate
Director. She has been with the Project
since 1981 and returned recently after a
year at the Federal Public Defender's
Office in Baltimore. In addition to assisting the Director, she hopes to expand
the Project's funding base by setting up
special projects in the areas of juvenile
and women's facility litigation. She also
hopes to explore institutional reform by
using a combination of litigation and
nonlitigation strategies as is currently
being utilized in our juvenile case in
Hawaii.
Adjoa Aiyetoro is the Director of
Legislative and Community Affairs. In
her 5-1/2 years at the Project she has
shown an interest in involving the community in litigation efforts. Among other
projects, she organized a conference on
the effect of imprisonment on the black
family and community, pursued a race
discrimination claim in the massive Michigan case and has been successful in several non-litigation settlements. In her
new position she hopes to develop a
methodology for involving the community in the process of prison litigation
and thereby influence legislative decisions towards an increased reliance on
alternatives.
Elizabeth Alexander has been named
Chief Staff Counsel. She also joined the
•
Special edition
Commemorative

T ·Shirts-See how
suave and debonaire
you can look in the
National Prison Project's 15th Anniversary Commemorative
t-shirt! Sizes are XL,
L, M and S (children
sizes special order).
The colors remaining
are mostly white and
yellow (L has some
It. blue; S has It. blue
and pink). Get them
while they last, first come, first served!
T-shirts are $6.00 plus $1.75 for handling
($7.75).

Project staff in 1981 and has successfully
challenged conditions of confinement in
Virginia, Alabama, Wisconsin, South Dakota and Michigan. Her new duties will
include coordination of the legal work of
project attorneys and the paralegals as
well as improving the legal research resources available to the staff.
Dan Manville, Staff Associate, has
returned to Michigan to practice law
after being admitted to the bar there;
he was withthe Project for 5 1/2 years.
Lynthia Gibson and Betsy Bernat have
both been promoted to Assistants to
the Director and between them will
handle various financial and administrative duties.
• The PACT Institute of Justice announces that the Annual VORP Gathering will be held June 18-22, 1988 in To-

ronto, Canada. Held annually since 1983,
the VORP Gathering is a conference for
Victim-offender reconciliation and mediation programs and those with an interest
in such programs. The tentative theme
of the 1988 conference is: "The Needs
of Victims and Offenders."
The conference attracts international attention, drawing program directors, staff and volunteer mediators of
victim-offender mediation and reconciliation programs from across U.S. and Canada. Training workshops and resource
exchanges are provided for those who
are interested in starting a local program
or learning more about the VORP
concept.
For more details, contact the
PACT Institute of Justice at P.O. Box
177, Michigan City, IN 46360, 21918723911.

Sourcebook ( 1980). Traces
the history of the prisoners'
rights movement and surveys
');~ the state of the law on various
prison issues (many case cita.~ tions). 24 pages, $2.50 prepaid
, from NPP.

"fa

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

The National Prison
Project JOURNAL.
$20/yr. $21yr. to prisoners.
The Prisoners' Assistance
Directory, the result of a national survey, identifies and describes various organizations
and agencies that provide assistance to prisoners. Lists national, state, and local organizations and sources of
assistance including legal, library, medical, educational,
~ployment and financial aid.
7th Edition, published April
1986. Paperback, $20 prepaid
from NPP.

QTY. COST

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

Fill out and send with check payable to

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

QTY. COST

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

. the NPP Staff:

'tihileitiS·sOlTle'f\lhatdifficlJltJ()r' .
me to •express the •extent of my
gratitude with words regarding the
[NPPJOURNAL, 15th Anniversary
Edition],. please ,know. that..1consider
it a very special blessing and a high
honor to be mentioned among
those who refused to turn a dfaaf
ear to the cry for assistance from
the. many men, women and. children
who are the Rroduct or by-product
ofinhumane 't~eatment which derives from America's State and Fedel1l1 Prison system.
Yours. in. the Struggle Always,
BobbyBCl~le

>

. . / ..{

(Lead Plahi.tiff, Battle v. Anderson)

ated mothers, health care, and
general articles and books. $5
prepaid from NPP.
A Primer For Jail Litiga_ _-'--__ tors is a detailed manual with
practical suggestions for jail litigation. It includes chapters on
legal analysis, the use of expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case citations and correctional standards. Ist edition, February
1984. 180 pages, paperback,
$15 prepaid from NPP.
The Jail Utigation Status
_ _-'----:;;, Report gives a state-by-state
listing of cases involVing jail
conditions in both federal and
state courts. The Report covers unpublished opinions, consent decrees and cases in
progress as well as published
decisions. The Report is the
first nation-wide compilation
of litigation involVing jails. It
will be updated regularly by
the National Jail Project. 1st
Edition, published September
QTY. COST
1985. $15 prepaid from NJP.

NAME

_

ADDRESS

_

CITY, STATE, ZIP

_

WINTER 1987

15

III1IIIIII
The following are major developments in the Prison Project's litigation
program since August I, 1987. Further
details of any of the listed cases may be
obtained by writing the Project.
Abbott v. Meese-This is the national
class action which challenges the mail
and literature policies of the Federal Bureau of Prisons. In july, the U.S. Court
of Appeals rendered its opinion and decided the publications issue in plaintiffs'
favor, stating that the district court had
applied the wrong standard. The Court
affirmed the district court opinion on
the prisoner correspondence issue and
remanded the case so that the proper
standard could be applied by the district
judge.
Bobby M. v. Graham-This case challenges conditions and practices at three
Florida juvenile training schools. In july
the court approved a comprehensive
settlement agreement, settling all issues
in the plaintiffs' favor, including use of
restraints and isolation. The agreement
also incorporated a population reduction
plan, and a monitoring and reporting system which went into effect in july.
Cody v. Hillard-This suit challenges
conditions at the South Dakota State
Penitentiary. In july, the district court
held a six-day compliance hearing on all
issues except overcrowding. We offered
defendants a settlement agreement that
recognizes continuing deficiencies and
establishes an expert panel to address
compliance issues; defendants tentatively
approved the plan.

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

16 WINTER 1987

Epps v. Martin-This case challenges
conditions at North Carolina's Craggy
state prison. We secured a settlement in
August which prOVides for improvements in fire safety, ventilation, heating,
medical and mental health care, and a
reduction of triple-bunking and overall
overcrowding. A hearing was held in late
September for approval of the settlement by the district court.
Inmates of D.C. jail v. jacksonThis case challenges conditions, primarily
overcrowding, at the D.C. jail. In july,
the D.C. City Council passed the Emergency Overcrowding Act, alloWing early
release of approximately 850 prisoners.
The District has also tried to send newly
sentenced prisoners to federal facilities,
a move we oppose.
Inmates of Occoquan v. Barry-This
lawsuit challenges conditions at three
District of Columbia facilities. On july
30, the court rescinded a previous order
for a population cap, requiring instead
that the defendants reduce the population by 100 inmates a month until the
population cap is achieved. The D.C.
City Council approved an Emergency
Overcrowding Act to ease overcrowding within the entire D.C. system (see

Inmates

of D.C. Jail v. Jackson).

Palmigiano v. DePrete-This case
challenges conditions in the Rhode Island
State Prison system. In july, parties
agreed to a new order with respect to
Medium Security and the Intake Center
whereby a panel of experts will evaluate
conditions at these facilities every six

months or whenever the population exceeds certain limits for 30 days. If the facilities are found to be in non-compliance with court-ordered standards,
defendants will have 30 days to remedy
the situation or face the imposition of a
population cap. ~
Phillips v. Bryan-This is a conditions
case at Nevada's maximum security
prison. In October, parties agreed to a
new consent decree, settling all issues
and thereby replacing the 1983 decree.
Shrader v. White-In this case challenging conditions at the Virginia State
Penitentiary in Richmond, the only outstanding issue was prisoner access to
scrap metals and tools which could be
used to make weapons. A settlement
agreement providing for adequate securing of these materials was approved by
the Magistrate on August II, 1987.
U.S. v. Michigan/Knop v. johnson-.
This is a statewide Michigan prison conditions case. In August, the court issued
a highly favorable decision, granting
plaintiffs some relief on every issue under litigation. Relief on racial discrimination issues, however, was either very
narrow or denied, and plaintiffs have
moved for reconsideration on segregation in the dining halls.
Washington v. Tinney-This case
challenges conditions and allegations of
brutality and use of force at two Maryland state prisons. On October 2, the
court approved a stipulated agreement
which covers all the issues in the
case. III

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