-continued from front page

claims addressed to inadequate mental
health and medical care have been
raised. 3 Forces driving this evolution include: I) an increased population of female offenders, taxing existing medical
service delivery systems and resulting in
gross delays in medical care, care by inadequately and/or improperly trained
people, and failure to provide care except in emergencies; 2) an increased
awareness of women's special health
needs, generally, and of the compromised health status of female offenders;4
3) a heightened sense of political empowerment among the female offender
population, resulting in their demands
for a change in the medical status quo;
and 4) most recently, the AIDS epidemic
which is claiming as its victims female IV
drug users at alarming rates, many of
whom are imprisoned at one time or
another.
This article will examine four aspects of this new litigative focus: the
types of medical care issues currently
being addressed in litigation; the applicable legal standards; a review of several

Shelley Geballe is supervising attorney at
Yale Legal Services and a staff attorney
with the Connecticut Civil Liberties Union.
Martha Stone is the legal director of the
Connecticut Civil Liberties Union.
'The authors gratefully acknowledge Yale law students Stephanie Cotsirilos and Kate Silverman for
their assistance in background research.
2£g. Glover v. Johnson, 478 F.Supp. 1075 (ED.
Mich. 1979), 510 F.Supp. 1019 (ED. Mich. 1981),
cert denied 106 S.Ct. 3334, slip op. April 21, 1987;
Bukhari v. Hutto, 487 F.Supp. 1162, 1171 (E.D. Va.
1980) (characterizing equal protection challenges
to sex-based disparity in prison conditions as "a
relatively new phenomenon ... which has subjected to review some traditional notions of the
purpose and resulting benefits of the confinement
. of women prisoners" and acknowledging that
"[bloth de jure and de facto sex-based disparity has
existed within the criminal justice system from arrest and sentencing procedures to incarceration
and classification within the prisons").
'These claims may be joined in a single lawsuit
with sex discrimination and other claims, e.g. Canterino v. Wilson,"S46 F.Supp. 174 (W.D. Ky. 1982),
562 F.Supp. 106 (W.D. Ky. 1983), Order (W.D.
Ky. Aug. 26, 1983), Memorandum Opinion (W.D.
Ky. Aug. 23, 1984), 644 F.Supp. 738 (W.D. Ky.
1986); West v. Manson, No. N83-366 (D.Conn.
filed May 9, 1983, two year Agreement of Settlement, June 14, 1984; Consent Judgment on mental
health issues, June I, 1987), or may be raised in
separate litigation. For analysis of the advantages of
each approach, see Section IV, infra.
'For example, at the Connecticut Correctional Institution at Niantic (CClN), Connecticut's sole
women's correctional facility which serves both
sentenced and pretrial women, approximately 70%
of the women report a history of recent substance
abuse, many have a history of psychiatric care, and
96% are of childbearing age. See generally Resnik
and Shaw, Prisoners of Their Sex: Health Problems of
Incarcerated Women in Prisoners' Rights Sourcebook.

2 SPRING 1988

of the cases which have moved to judgment to analyze the type of relief currently being afforded; litigation strategy
and some suggestions for new directions.

The Issues
Mental Health Care. Common
to many women's jails and prisons is an
inadequate or even nonexistent system
of providing mental health care to
inmates.

Correctional officers administered
psychotropic medications.
Typical of patterns observed
throughout the country was the situation in Connecticut prior to West v.
Manson, supra note 3. Mentally ill female
offenders were sent to Connecticut's
sole correctional facility for pretrial and
sentenced women; they were not admitted to a specialized facility operated
by the state Department of Mental
Health (restricted to male offenders).
Virtually no mental health care was provided to these women. Rather, they
were housed together with women in
segregation or placed in the basement of
one of the housing units-'The Dungeon"-where they were left unattended, often restrained and clothed
only in a paper gown, and locked up for
as many as 23 hours each day. Only four
hours of psychiatric coverage was provided each week for the entire institution. Correctional officers administered
psychotropic medications, which were
frequently prescribed without first performing the requisite tests and phYSical
examinations and which were poorly
monitored once prescribed. Hard restraints (Iegirons, helmets, handcuffs)
were used to restrain women unable to
control their behavior. A severe shortage of staff competent to treat mentally
ill women resulted in excessive reliance
on the use of seclusion in "suicide"
rooms and/or the use of restraints. Seclusion and restraints were often initiated without a physician's order and
maintained without periodic psychiatric
reassessments or nursing care to meet
the women's basic medical needs. Psychiatric records were scanty, rendering
continuity of care impossible, and records were kept together with institutional and medical records, eliminating
confidentiality. Inmates with less severe
mental health problems also were denied adequate care; psychotropic medications were often the sole "treatment"
rendered, even for minor sleep
disturbances.
This pattern of virtual total neglect
of the mental health needs of women
inmates is, unfortunately, not unique
to Connecticut. Similar facts have
prompted litigation on this issue in other

states, including California,s Kentucky,6
Pennsylvania,? Idaho,S New Mexico,9 and
Hawaii. 10
5Wright v. McCarthy, No. OCV 33880 (Cal. Super.
Ct., San Bernardino Cty., filed August 29, 1984)
(California Institution for Women (CIW): doubleceiling of mentally ill inmates, failure to segregate
mentally ill inmates from protective custody inmates, failure to screen incoming inmates for mental health problems, failure to provide and maintain
statutorily-required operational plan for mental
health programs, inadequate mental health staff,
delays in or denials of care, sex-based disparity between care at CIW and care prOVided to male
inmates).
~
·Canterino v. Wilson, supra note 3 (Kentucky Correctionallnstitution for Women: patchwork of
"outside," very part-time professionals providing
mental health care to a female population with
higher levels of stress than their male counterparts, care provided only to those with acute
problems, 33-50% of population taking psychotropiC medications because of "stress, anxiety, tension and sleep disturbances").
7Beehler v. Jeffes, No. CW-83-1 024 (M.D. Pa., filed
July 25, 1983) (State Correctional Institution at
Muncy: inadequate treatment of women suffering
from psychiatric or psychological problems, inappropriate or excessive levels of medication); Inmates of Allegheny County Jail v. Wecht, 565 F.Supp.
1278, 1285 (W.D. Pa. 1983) (Allegheny County
Jail: use of restraints on women with mental health
problems, seclusion of suicidal and violent women
in glass faced cell where they were restrained, partially or totally stripped, to mattressless metal
cot).
·Witke v. Crowl, c.A. No. 82-3078 (D. Ida., filed
Sept. 9, 1982, Stipulated Settlement Agreement
Jan. 22, 1985) (North Idaho Correctional Institution Women's Section: no psychiatric services except through outside appointments and appointments made only in emergencies, no access to
psychological testing or counselling).
'Klatt v. King, Civ. No. 80-871-JB (D. N.M., Consent Order 1983) (Radium Spring Correctional facility for Women: mental health care provided by

THE

OF THE

L

NATIONAL PRISON PROJECT
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ternatives to incarceration.
The reprinting of JOURNAL materiaJ is encouraged with the
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True. Inc.

Reproductive Health Care. Litigation typically has focused on the delivery of two types of reproductive health
care: I) the medical care provided to
prisoners who are pregnant or who have
just given birth, and 2) abortion services.
Because of the increased incidence of
medical conditions in the inmate population which pose special risk to pregnant
women, (i.e., hepatitis, drug addiction,
AIDS), and because these conditions
often are exacerbated by the nutritionally deficient diet and stress of prison,
the relief sought in the former is comprehensive obstetrical care that can
successfully manage the "high risk" pregnancies so prevalent in inmate populations. '1 Relief in the latter seeks abortion counselling services and the
elimination of barriers to abortion
services.
Prenatal and Postpartum Care.
Inadequate prenatal and postpartum
medical care at the California Institute of
Women (CIW) caused the named plaintiffs in Harris v. McCarthy, No. 85-6002
(C.D. Cal., filed Sept. II, 1985) (Settlement Agreement April 1987) to suffer
e
particularly egregious losses, including
miscarriages, unnecessary hystereetor5'
mies, and the birth of a disabled child.
::E
Harris specifically challenged ClW's fail- ~
ure to: provide on-site OB-GYN care, ~
regular and timely prenatal and postpar- ~
tum medical exams, adequate medical
<l:
records, appropriate responses to preg---------------nancy complications, high-risk pregnanIncarceration at the Santa Rita
cies, and medical emergencies; prescribe
Rehabilitation Center [was
and provide appropriate drugs; comply
with the medical orders issued by the
characterized] as "a potential
community hospital which CIW had
death sentence to her unborn
charged with providing care; and failure
child and . . . dangerous to the
to provide adequate nutrition, prenatal
vitamins and counselling, and the safe
woman."
transport of pregnant and postpartum
women.
jail's failure to provide a staff obstetriSimilar issues were raised in a seccian or gynecologist and failure to have
ond California case which characterized
a physician screen new admissions
incarceration of a pregnant woman at
(thereby allowing pregnancies and pregthe Santa Rita Rehabilitation Center as
nancy-related complications to go unde"a potential death sentence to her untected), delayed or denied prenatal and
born child and . . . dangerous to the
postnatal medical examinations, inadewoman." Jones v. Dyer, supra note 11. 12
quate diet, failure to manage properly
Specifically challenged in Jones are the
high-risk pregnancies and pregnancy
complications, overcrowded housing, use
only two staff psychologists, one of whom "disof shackles while transporting pregnant
trusted" by inmates because of breaches of
women, and inappropriate medication of
confidentiality).
pregnant women.
•oSpear v. Ariyoshi, Civ. No. 84-1104 (D. Hawaii,
West v. Manson also challenges the
Consent Decree June 12, 1985) (Hawaii Women's
prenatal care provided to Connecticut's
Correctional Facility).
"Far broader relief is urged in Jones v. Dyer, (Cal.
female offenders, specifically the inadeSuper. Ct. Alameda Cty., filed February 25, 1986),
quacies in diet, pregnancy monitoring
which seeks an injunction barring any woman in a
and prenatal education, the housing of
state of advanced pregnancy from being incarcerpregnant inmates in rooms without toiated in a county jail.
lets and sinks, and barbaric restraint poli12The infant mortality rate at the Santa Rita Jail is
cies (including the use of legirons on a
. at least 50 times the state average, according to
woman while she was giving birth). See
Ellen Barry of Legal Services for Prisoners with
also Archer v. Dutcher, 733 F.2d 14 (2nd
Children, San Francisco, CA (co-counsel for
Cir. 1984).
plaintiffs).

Abortion Services. Barriers to
abortion services have been challenged
in three cases. A county requirement
that a court must order an inmate's release for an off-grounds abortion, the
county's failure to pay for off-grounds
abortions (whether elective or medically
necessary), and its failure to provide onsite abortion services for those inmates
for whom security concerns precluded
release were challenged successfully in

Monmouth County Correctional Institution
Inmates v. Lanzaro, 834 F.2d 326 (3rd
Cir. 1987). Monmouth enjoined the
county policy which required pregnant
inmates who seek to terminate a pregnancy to obtain a court ordered release
in order to get the abortion. It also required the county to provide transportion to an appropriate medical facility
for inmates seeking abortion and reqUired the county to assume responsibility for insuring the availability of funding
for all inmate abortions, even if elective,
and, if alternative means of funding are
nonexistent, the county itself must assume the "full cost. Reproductive Health
Services v. Webster, 655 F.Supp. 1300
(W.D. Mo. 1987) (final judgment on
consent June 23, 1987), 3 invalidated
13Lanzaro and Webster also challenged the correctional facilities' failure to provide abortion counselling to inmates.

SPRING 1988

3

-

--._~----

state statutory restrictions on the use of
public funds and employees for abortions
insofar as they could bar off-grounds
abortion services for inmates who relied
upon escorts and transportation by
prison employees. Finally, a fee of
$5,000 imposed by the state on inmates
at CIW for abortions performed past
twelve weeks gestation is being challenged in Scrape v. McCarthy, No. OCV36620 (Cal. Super. Ct., San Bernadino
Cty., filed Oct. 1985), a temporary restraining order ordering an abortion at
state expense having been granted for
the named plaintiff in October 1985.
Substance Abuse Care. Though
many women enter the correctional system with substance abuse problems, to
date there has been little focus on this
medical need. The areas of general concern are two-fold: I) medical management of women detoxifying from drugs
and/or alcohol when first incarcerated
and the unique problems of detoxifying
pregnant women; and 2) counselling and
treatment prOVided to assist substance
abusing inmates in eliminating their
dependencies.
Commonly, women withdraw from
drug and/or alcohol addictions without
direct medical supervision and outside of
the medical unit. Persons other than
physicians are allowed to "diagnose" the
type and extent of addiction and to administer palliative medications. Pregnant
inmates addicted to heroin or methadone may be detoxified during the first
and third trimesters despite grave risk
to the fetus. "Treatment" is often left
to a small and poorly trained staff and
portions of the population are excluded
from "treatment" because of "security"
concerns.
Conditions such as these are being
challenged in West v. Manson, supra note
3. At least one death, and several "close
calls," resulted from gross deficiencies in
care.
Klatt v. King, supra note 9, also challenged New Mexico's failure to provide
drug and alcohol counselling programs to
its female off~nders (though 50% of the
population had drug-related problems
and 90% had alcoholism problems) and
its failure to manage alcohol withdrawal
adequately. Jones v. Dyer, supra note 1I,
addresses a California jail's failure to
provide a comprehensive drug program
for pregnant addicted inmates, thereby
forcing the inmates into immediate and
total withdrawal (precipitating spasms,
nausea, convulsions and, on occasion,
miscarriages). See also Beehler v. Jeffes,
supra note 7.
General Medical Care. General
medical care in women's jails and prisons
is too often characterized by lengthy delays, an exclusive focus on emergency
care, a staff which is frequently under4 SPRING 1988

- - - -

qualified and overworked, abysmal recordkeeping, a failure to prOVide routine and
preventive services (e.g., screening of
new admittees for contagious disease,
pap smears), inadequate facilities and
equipment, and an excessive reliance on
outside medical consultants and treatment facilities, particularly in Iigh~ of the
difficulty most prisons have in transporting inmates to such care in a consistent
and timely manner.
These gross systemic deficiencies,
coupled with the denial of appropriate
care to specific individuals, have been
challenged as violative of the Eighth
Amendment's ban on cruel and unusual
punishment. I" Claims addressed to sexbased disparities in care are sometimes
joined because care provided in facilities
housing women is characteristically
poorer than that prOVided men.'s
Dental Care. Like general medical
care, dental care in women's jails and
prisons is typically marked by staffing
shortages, failure to perform initial exams, delays in emergency care, and delays in or total denials of routine, preventive, and restorative care. E.g. Dean
v. Coughlin, 623 F.Supp. 392 (S.D.N.Y.
1985),633 F.Supp. 308 (S.D.N.Y. 1986),
vacated and remanded, 804 F.2d 207
(2nd Cir. 1986) (Bedford Hills Correctional Facility, New York); Todaro v.
Ward, 431 F.Supp. 1129 (S.D.N.Y.
1979), affd 565 F.2d 48 (2d Cir. 1977);
Witke v. Crowl, supra note 9; West v.
Manson, supra note 3; Mitchell v. Untreiner, supra note 14.
14£g. West v. Manson, supra note 3; Canterino v.
Wilson, 546 F.Supp. at 214-15 (rejecting claim that
systemic deficiencies in Kentucky's women's prison
establish "deliberate indifference" in absence of
proof of denial of medical care to specific individuals); Mitchell v. Untreiner, 421 F.Supp. 886 (N.D.
Fla. 1976); Wright v. McCarthy, supra note 6 (comprehensive attack claiming not only cruel and unusual punishment, but also breach of statutory and
regulatory duties, and denial of equal protection);
Witke v. Crowl, supra note 9 (characterizing the
deficiencies as "so severe ... that they constitute a
life-threatening Situation," e.g., no infirmary, no
care except through outside appointments and no
appointments except in emergencies. medications
dispensed by non-professionals); Klatt v. King, supra
note 10; Beehler v. Jeffes, supra note 8; Spear v.
Ariyoshi, supra note I I.
15£g. Batton v. State Government of North Carolina,
501 F.Supp. 1173, 1177 (E.D. N.C. 1980) (rejecting claim of lack of parity based on fact Department of Correction operated hospital for state's
male inmates but relied on outside contracts for
services to female inmates); Wright v. McCarthy,
supra; Beehler v. Jeffes, supra; West v. Manson, supra. See also Costello v. Wainwright, Nos. 72-109CIV-J-S, 72-94-Civ-J-S (M.D. Fla., Interim Medical
Survey Team Report, December 14, 1984)(noting
the formal objections by women inmates to the
health care settlement in Costello as not addressing
"their special health care needs," describing numerous deficiencies in medical care for women and
characterizing the case as "inadequate and fail[ing)
to meet minimal ... standards").

The Constitutional Standards l6
Eighth Amendment Challenges. Successful Eighth Amendment'?
challenges to medical care require proof
of "deliberate indifference" to "serious
medical needs." Estelle v. Gamble, 429
U.S. 97 (1976). Deliberate indifference
arises when a doctor refuses to treat,
when an inmate's access to a physician
for diagnosis and treatment is denied or
unreasonably delayed, and/or when an
inmate is not prOVided with the treatment prescribed by a physician. Id. at
104-05. It can ~e established not only by
proof of a defendant's reckless disregard
for the health needs of inmates, but also
by proof of denial or unreasonable delay
in treatment regardless of a particular
defendant's mental state. E.g. French v.
Owens, 777 F.2d 1250, 1254 (7th Cir.
1986), cert. denied 107 S.Ct. 77 (1986);
Whisenant v. Yuam, 739 F.2d 160, 164
(4th Cir. 1984); Dean v. Coughlin, 623
F.Supp. at 402; Harding v. Kulhman, 588
F.Supp. 1315, 1316 (S.D.N.Y. 1984),
affd 762 F.2d 990 (2nd Cir. 1985); Todaro v. Ward, supra. Indeed the Eighth
Amendment imposes on government an
affirmative obligation "to prOVide persons in its custody with a medical care
system that meets minimal standards of
adequacy." Wellman v. Faulkner, 715
F.2d 269, 271 (7th Cir. 1983), cert. denied, 468 U.S. 1217.
Such deprivations can be established
indiVidually (by proof, for example, that
an inmate made her serious medical
needs known and waited in pain until
delayed treatment was provided her)
and/or institutionally (by proof of repeated instances of delay or denial of
I·Federal litigation characteristically is brought under the Eighth and Fourteenth Amendments. litigation in state courts has been necessary since
Pennhurst if state law violations are also alleged
against state defendants. This article will not address these other claims. £g. Wright v. McCarthy,
supra note 6 (breach of statutory and regulatory
duties); Scrape v. McCarthy, supra (Administrative
Procedure Act Violation); Whisman v. McCarthy,
No. OCV-33860 (Cal. Super. Ct., San Bernardino
County, filed Aug. 29, 1984) (pending motion for
summary adjudication as to state's failure to require licensure of CIW's medical facility and failure
to comply with state and department health care
regulations; simliar issue successfully raised with regard to male prison in Durggan v. McCarthy, No.
326371 (Cal. Super. Ct., Sacramento, Order Aug.
13, 1987).
17Pretrial detainees have substantive rights to be
free from punishment under the Due Process
Clause of Fourteenth Amendment, Bell v.Wolfish,
441 U.S. 520, 535 and n.16 (1979), which are at
least as great as the protections of the Eighth
Amendment. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). Thus,
Eighth Amendment standards can be used by analogy to determine the minimum substantive rights
of a pretrial detainee under the Fourteenth
Amendment. £g. Madden v. City of Meriden, 602
F.Supp. 1160, 1163-64 (D.Conn. 1985).

•••

medical care). Among the institutional
failures which have been characterized as
"deliberate indifference" are failures to
perform initial exams, a collapse of the
system for requesting routine care or
"sick call," a backlog in emergency requests, a failure to keep followup appointments, a failure to provide care if
inmates could not pay, entrusting care
to an unqualified attending physician or
staff person, dispensing of medication by
unqualified personnel, inadequate numbers of professional staff, and providing
care "so cursory as to amount to no
treatment at all." E.g. Ancata v. Prison
Health Services, 769 F.2d, 700, 704 (11th
Cir. 1985); Bass by Lewis v. Wallenstein,
769 F.2d I 173, 1186 (7th Cir. 1985);
French v. Owens, 777 F.2d at 1254-55;
Wellman v. Faulkner, 715 F.2d at 272-74;
Todaro v. Ward, 565 F.2d at 52; Duran v"
Anaya, 642 F.Supp. 510, 523 (D.N.M.
1986); Medcalf v. State of Kansas, 626
F.Supp. 1179, 1186 (D.Kan. 1986).
"Serious medical needs" are not
limited to those which are life-threatening, but encompass conditions which
cause or perpetuate pain, provided that
the prison authorities have reason to
know of such needs. E.g. Dean v. Coughlin, 623 F.Supp. at 401; Todaro v. Ward,
565 F.2d at 52. The requisite knowledge
is established if the need for treatment
has been determined by a physician, if
the need is apparent or obvious even to
a lay observer, and/or if the inmate has
repeatedly notified and complained of
the condition. E.g. Ancata v. Prison
Health Services, 769 F.2d at 704; Laaman
v. Helgemoe, 437 F.Supp. 269, 311
(D.N.H. 1977).

Equal Protection Challenges.
Equal protection challenges to the medical care provided women prisoners have
been judged by a "parity of treatment"
standard. E.g. Batton v. State Government
of North Carolina, 50 I F.Supp. at 1177.
The smaller size of the female inmate
population which results in a greater per
capita cost in prOViding medical care has
been held not to justify disparities in that
care. E.g. Glover v. Johnson, 478 F.Supp.
at 1078; Cant!rino v. Wilson, 546 F.Supp.
at 207, 211.
Relief. In those cases which have
resulted in consent judgments, expansive, detailed remedial orders have been
common. Typically, these orders impose
the norms and principles of medical care
which have been developed in non-correctional settings onto correctional facilities. Professional standards, such as those
of the American Correctional Association, the National Commission on Correctional Health Care lS and American
'&fhe NCCHC recently published new standards
for health care services in prisons and jails to revise those originally developed by the AMA and
last published in 1979 (prisons) and 1981 Oails).

. .. winning is but the first, and
possibly the easiest, of the
hurdles to improvement in
conditions.
Public Health Association, though not
admitted or adjudged to be "constitutionalized," are used as gUidelines for
care. Treatment plans, health care teams,
peer review, staffing ratios and training
.requirements, and formal and comprehensive protocols for examinations,
treatments, recordkeeping, seclusion, restraint and the prescription, administration and monitoring of medication are
among the components of care
mandated.
The Harris v. McCarthy settlement
agreement, for example, adopted the
standards of the American College of
Obstetricians and Gynecologists as a
working guide, adapting the ACOG
guidelines to the special circumstances of
a correctional setting. It established a
coordinated "pregnancy-related health
care" team, headed by a qualified obstetrician, to create and insure compliance
with a "plan of care" for the duration of
each inmate's pregnancy. Also mandated
were detailed protocols for emergency
response (mandating response timeS and

responsible medical personnel), schedules
for prenatal and postpartum examinations, and new policies for medical recordkeeping, laboratory tests, medical
transport (requiring the least restrictive
restraint consistent with security concerns), and nutrition.
The consent judgment in West v.
Manson pertaining to mental health
care '9 sets out, in 41 pages, detailed requirements as to the use of seclusion
and restraint, the administration, prescription and monitoring of psychotropic
medications, medical recordkeeping,
transfers to state mental health facilities,
and recreation for prisoners with mental
health problems. In addition, it mandates
a significant increase in the professional
mental health staff in the in-patient mental health unit and increased coverage by
psychiatrists and psychologists for the
entire facility. A three-member panel of
psychiatrists-all from outside the Department of Correction--is empowered
to monitor compliance indefinitely.20
-continued on next page
lOWest v, Manson, No. H83-366 (D.Conn. Consent
Judgment, June I, 1987).
2°An earlier, two year Agreement of Settlement in
West (entered in June 1984, and now being negotiated), mandated changes in general medical and
dental care and in the care of pregnant and substance abusing inmates.

SPRING 1988

nllWlIII!lIIIJ. . . . .1IIIlIIIJllII.

5

_

-continued from previous page
. The portion of the consent order in
Klatt v. King, supra note 10, pertaining to
health care specifies in elaborate detail
the requirements of initial health assessments, the policies and procedures for
management of pharmaceuticals, the review of medical and dental records of incoming inmates to assure continuity of
care, the sick call procedure, a prohibition on correctional officers distributing
medications, the requirements for periodic review of prescriptions and treatment plans, staffing ratios, the supervision of the medical unit, components of
mental health care and the duties and
powers of the autonomous panel of experts (dentist, dietician, two physicians,
psychologist) impaneled to make findings
and additional recommendations about
health care at the institution.
By comparison, the stipulated settlement agreement in Witke v. Crowl, supra note 8, mandates simply that medical, dental, psychiatric and psychological
services be provided "in accordance
with ACA standards" and that "women
be provided services equal to those provided to men." The consent decree in
Spear v. Ariyoshi, supra note I0, established a medical/mental health panel
which, with representatives of Hawaii's
professional medical societies, was to
evaluate the medical and mental health
needs at Hawaii's women's prison and
develop a specific plan to address these
needs, which was to be implemented by
the defendants by a certain date.
In those cases which have gone to
trial, courts--quite appropriately-have
refused to afford prison administrators
the same broad deference as is accorded
in matters of prison security. While the
remedy in successful litigation is often an
order directing defendants to propose a
remedial plan, the specificity of these
plans is often, ultimately, comparable to
that of the consent judgments?'

21 For example, though the Second Circuit in Dean
v. Coughlin, supra... criticized a district court for re-

jecting the defendants' plan for dental care at the
Bedford Hills facility in New York in favor of a
more specific plan proposed by the plaintiffs, the
defendants' plan, as modified and embraced by the
Second Circuit, was extremely comprehensive. It
required defendants to contract with a private
provider of professional dental services for all of
the dental care at Bedford Hills. The contract was
to provide for a detailed "Plan of Care" (which included increased professional staff and operations,
specific procedures to identify dental needs, methods of establishing treatment priorities, assessment
examinations, a sick call system, a follow-up appointment system, an enlarged dental clinic and
maintenance of detailed individual dental records
for each inmate). The contractor was also to create and provide a "Policy and Procedures Manual"
for Bedford Hills and to meet a set timetable for
commencement of operations. 804 F.2d at 209.

6

SPRING 1988

Strategy and New Directions
Experts. In few cases are expert
witnesses· more essential than those challenging health care. Just as physicians
cannot be expected to identify all legal
issues in a legal transaction, so too lawyers must defer to physicians to evaluate
the inadequacies of a health care delivery
system. This fundamental fact counsels
early identification of one's expert witnesses: to help identify issues prior to
drafting the complaint, to help frame and
respond to discovery, to be involved in
trial preparation and, of course, to testify at trial. Moreover, should settlement
negotiations commence, experts are invaluable. The mental health consent
judgment in West v. Manson was negotiated in the first instance by a panel of
three psychiatric experts, all of whom
were paid by defendants-one appointed
by plaintiffs, one by defendants, and a
third (mutually agreed to by plaintiffs
and defendants) appointed by the judge.
The product of these three psychiatrists'
efforts was an immensely detailed proposed consent judgment to which counsel for the ~arties needed only to add
"legalese."2 Medical school faculties and
state mental health facility staffs are
fertile grounds for locating eminently
qualified and eager physicians and
psychiatrists.
Omnibus Case v. Multiple
Cases. When confronted by a correctional facility with multiple deficienciesin health care, in inmate access to court,
in overcrowding, in sex-based disparities
in programming--one has essentially two
courses for litigation: I) bring an omnibus case addressing all issues, or 2) bring
multiple cases. The former is less costly,
appears on its face to be more efficient,
and permits the joining of weaker claims
with claims which are strong, enhancing
the potential for favorable settlement of
the former. This approach, however, is
not without its disadvantages, especially
if the case appears likely to settle. The
cost- and time-based efficiencies of an
omnibus case are less significant if the
case ends up in settlement talks. Also, at
such a point, defendants are better able
to play issues off against each other in
their efforts to reduce the overall cost
of settlement (e.g., a medical staff person is offered at the expense of additional educational staff). Finally, the slowest common denominator dictates the
pace of resolution: issues requiring immediate resolution (such as the care of
substance abusing inmates and most
other health care claims) are not addressed as expeditiously as they might
be were they not joined with others.
llSee also Janger, "Expert Negotiation Brings New
Approach to Prison Litigation in Hawaii," NPP
JOURNAL, No.6, Winter, 1985, pp. 6-8.

On balance, one should be cautious
about joining health care claims with
other claims, such as claims addressed to
sex-based disparities in educational and
job programming and overcrowding
(recognizing that some proof of medical
claims will be necessarily involved in the
proof of an overcrowding claim). Separate litigation is preferable in such
instances.
Monitoring and Compliance. It
has become an axiom of prison litigation
that winning is but the first, and possibly
the easiest, of the hurdles to improvement in conditifms. Enforcement of judgments-whether they are court orders
or judgments by consent-is an immense
task.23 The most effective way to insure
compliance and decrease the attorney
time necessary to monitor a judgment is
to incorporate into the judgment the
appointment of a monitoring panel or a
special master, with the cost to be
borne by defendants?4 The powers and
duties of this oversight body should also
be specified: allOWing access to all institutional records, all staff, and all facilities,
mediating disputes as to compliance, etc.
No member of the oversight body
should be employed by the defendants,
though the formation of wholly internal
Quality Assurance Committees to monitor the day-to-day provision of health .
care services should also be encouraged.
(Non-correctional health care facilities,
of course, rely on both internal and external quality control bodies to monitor
their health care services.) The task of
enforcing compliance also is eased somewhat if one demands specificity in the
remedial order, placing all parties on
clearer notice of what is and is not
required.
New Directions. Because many
women enter the correctional system in
poor health and have greater medical
needs, as a rule, than male offenders,
health care delivery in ~omen's prisons
and jails must become a focus for litigation in the next decade. Moreover, as
the incidence of AIDS grows within the
female IV drug using population, the impact on women's prisons will be dramatic. Medical care delivery systems,
which are currently being stressed by a
rapidly increasing population of female
"Perhaps the most graphic example in the women's prison context is Glover v. johnson. Filed in
May 1977, the initial judgment upholding plaintiffs'
claims of sex-based disparity in programming was
granted in 1979. 478 F.Supp. 1075 (E.D. Mich.
1979). Full compliance is still not forthcoming. The
district court recently ordered the appointment of
an Administrator with "full power, subject to the
supervision of the Court, to contract for educational services with educational institutions necessary to achieve parity." (slip. op., April 21, 1987).
"See also Sturm, "Special Masters Aid in Compliance Efforts," NPP JOURNAL, No.6, Winter, 1985,
pp. 9-11.

Prisoners With AIDS in New
York Live Half As Long As
Those on Outside
julia Cade and jan Elvin
AIDS is now the leading cause of
death among prisoners in New York State.
New York, along with New jersey and
Pennsylvania, has surpassed the rest of the
country in numbers of reported AIDS cases:
as of December 1987, there have been
597 cases of AIDS inside its prisons since
1981, 346 of whom have died. One
hundred fifty-two have left the system, and
99 are still in custody.
The high numbers in New York are
attributable to the large number of intravenous (IV) drug users--an estimated
250,000 people within the state. IV drug
users are at high risk for the disease, and
corrections officials estimate that over
60% of those incarcerated in New York
prisons, and at least 40% of those in New
York City jails, have IV drug use histories.

". . . one would not expect to
find inmate survival rates to be
less than half that of the general
population sample and declining
annually."

1981-1986, September 1987 Update, New York
State Commission of Correction.

within the United States arising out of
the state of New York, the state's correctional health care system has been severely taxed by the AIDS crisis.
"Even given the differences in the
demographic profiles [of inmates versus
those on the outside with the disease],"
the report states, "one would not expect to find inmate survival rates to be
less than half that of the general population sample and declining annually." The
authors then ask, "Are these findings in
any way related to the identified deficits
in inmate health care resources and patient management practices found in this
study?
"Current research indicates that
early detection and aggressive therapy in
a medical center setting followed by
close monitoring by medical centerbased infectious disease departments extends both the duration and quality of
life for AIDS victims. What remains lacking is convincing evidence that each confirmed inmate patient receives vigorous
monitoring and aggressive therapy in an
appropriate setting."
The magnitude of the AIDS crisis in
New York has not been matched by
increased staffing or resources. This
suggests that "the increased strain on

offenders, will be additionally stressed by
a greatly incre~ed demand for medical
services by persons with AIDS and other
immune system deficiencies. In addition,
because of overcrowding, the increased
space required for adequate medical and
mental health care will become more
difficult, but no less essential, to secure.
All areas of gross deficiencies of
medical care must be challenged, particularly any lack of medical oversight for
detoxifying inmates, inadequate prenatal
and postpartum care, and de jure or de
facto barriers to family planning and
abortion services. Litigation about AIDS
must focus not only on the actual medical care provided (including whether
"experimental" therapies such as AZT
therapy are offered) but also on the

mental health care provided to women
who test positive for the virus, those
who have full-blown AIDS, and those
who have ARC. Support groups for prisoners and their families should be urged
as an essential component of necessary
mental health care. Confidentiality is
particularly important in this area of
medical care.
Finally, there must be an increased
focus on the very real disparities in the
health care provided to incarcerated
women as compared with that provided
to men. Actual disparities-e.g., in size
and competency of staff, in physical
plant-are rendered more egregious because of the greater needs of women
for medical care, particularly when they
are in their childbearing years. II

A recently released report by the
New York State Commission of Correction on prison mortality rates reveals
that prisoners with AIDS in New York
State live only half as long as free world
persons with AIDS. I On closer examination, it appears that the reason for this
shocking disparity may be deficiencies in
the provision of medical care to prisoners. With 34% of all AIDS cases

julia Cade is a paralegal and public information assistant at the Prison Project
jan Elvin is the editor of the NPP
JOURNAL
'Acquired Immune Deficiency Syndrome: A Demographic Profile of New York State Inmate Mortalities,

limited Department of Correctional Services (DOCS) health care resources,
both facility and community-based, is
having a negative impact on DOCS' ability to achieve nominal results in its management of AIDS."
The average length of survival was
arrived at by noting the first date that
symptoms were recognized by medical
and correctional personnel at the facility.
It is known, however, that within a
prison setting appropriate medical diagnosis and treatment often lag behind
that which would be offered in the free
world. Thus, this date may not accurately reflect the actual onset of the disease, partially accounting for the shorter
reported survival rate of prisoners.
The results of the study would
seem to indicate as well that the lives of
AIDS patients who receive adequate
medical care can be prolonged beyond
the time in which they would die without that care.
Alvin j. Bronstein, Executive Director of the National Prison Project of the
ACLU, pointed out in recent testimony
before the House judiciary Committee's
Subcommittee on Courts, Civil Liberties
and the Administration of justice, that
the provision of medical care is a serious
problem for prisoners with AIDS and an
-continued on next page
SPRING 1988

7

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _iIIim'Jigllll·.B!rDgB!B!. . . B
. !ngllll.------

L

rights by a rational relation test, and
clearly rejecting the higher standard announced in Martinez previously thought
to govern prisoners' claims. Answering
the question it had sidestepped in Martinez, the Court wrote, "When a prison
regulation impinges on inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penologNo longer can prisoners expect
ical interests. ~'5 Prison officials could esthe federal courts to show the
tablish a regulation's reasonableness by
proving that: (I) there is a rational consensitivity and respect for their
nection between the policy and some lerights that has been
gitimate, content-neutral governmental
demonstrated in the past
interest; (2) alternative avenues allow
the prisoner to exercise the right; (3)
accommodation of the prisoner request
what can now be considered a fateful
turn of events, the Court, ruling in favor does not impact significantly on prison
resources, prison guards or other inof the prisoners, did not determine to
mates; and (4) no obvious alternatives to
what degree the Constitution protected
prisoners per se, but based its decision
the regulations exist. 6
on the "consequential restriction on the
Applying this four-factor analysis,
First and Fourteenth Amendment rights
the Court in Safley held that limiting
of those who are not prisoners."3 Thircorrespondence between plaintiff inteen years later, the Court's failure to
mates and those at other prisons was
squarely address the issue of prisoners'
logically connected to the state's interest in the prevention of criminal activity;
rights has been used by the current Suthus, the content-neutral ban survived
preme Court as an occasion to eviscerate the protections thought to be proconstitutional scrutiny.7 But the same
prison officials failed to prove any ravided by Martinez, striking a terrible
blow to the struggle for religious and
tional link between a restriction on inexpressive freedom for prisoners.
mate marriages and legitimate security
Turner v. Safley:'
and rehabilitation concerns.8
Only days after deciding Safley, the
Last term the Court visited the
Court relied on the analysis established
question of a prisoner's First Amendthere in upholding a restraint on inment rights in Safley, assessing those
mates' free exercise of reli~ion. In
O'Lone v. Estate o( Shabazz, the Court
3/d. at 409.
upheld a prison regulation that pre·107 U.S. 2254 (1987).
cluded prisoners who were part of a
work gang detailed on assignments out• AIDS in New York State's corside the prison from coming back at
rectional system is predominately a dismidday for jumu'ah; these prisoners
ease of males. Ninety-six percent of dewere thus denied the opportunity to atcedents were male;
tend jumu'ah. lo In applying the Safley fac• Ninety-five percent of inmates in
tors, the Court gave credence to the
the sample had a history of intravenous
tenuous security and rehabilitative condrug use;
cerns the restrictions purportedly fur• Forty-five percent of the cases
thered, II and found that, although there
were Hispanic, 43% black and 12%
were no alternative means for these
white. Compared to their ratio in the
prisoners to attend jumu'ah, the priscorrectional population, Hispanics were
oners "retain[ed] the ability to particidisproportionately represented in death
pate in other Muslim religious
cases;
ceremonies." 12
• Fifty-seven percent of mortalities
The Court's opinions in Safley and
had been in the correctional system 1-18 O'Lone mark the end of an era for the
months; 27% for 19-36 months; 12%
supremacy of prisoners' rights over what
for 37-54 months; and 3% 4V2 to six
are often arbitrary and callous restricyears. Two inmates had served 6 V2 to
seven years at the time of death;
SId. at 2261.
• The most prevalent opportunistic
at 2262.
infection at time of death was PneumoslId. at 2263-64.
cystis Carinii Pneumonia (PCP). Fiftyald. at 2266.
four percent of cases were PCP or PCP
9107 S.Ct. 2400 (1987).
in combination with some other opporIOJumu'ah is the Muslim religion's central and only
tunistic infection;
obligatory and congregational service, which is held
• The majority of deaths occurred
on Friday, the Muslim Sabbath, in the early
at maximum security facilities. 11IIII
afternoon.

Decisions in Safley and O'Lone
Undo Years of Progress
Mark j. Lopez
Since the Supreme Court decided Procunier v. Martinez l in 1974, it has been
assumed that the question of a prisoner's
First Amendment rights was governed
by an intermediate standard of review,
requiring prison authorities to justify any
restriction on the exercise of those
rights. Although this standard of review
was somewhat less protective than that
applied in the free world, its application
in the ensuing years provided significant
protection to inmates in their cause for
First Amendment freedom. In Martinez,
prison officials unsuccessfully defended
their policy of screening all prisoners'
mail, censoring that which they found
unacceptable. The First Amendment permits such restraints, held the Court, only
when they "further an important or substantial governmental interest unrelated
to the suppression of expression" and
are "no greater than is necessary or essential to the protection of the particular governmental interest involved."2 In

Mark Lopez has been a staff attorney with
the National Prison Project since June
1987. Be(ore that he was staff counsel (or
the Illinois Civil Liberties Union.
'416 U.S. 396 (1974).
'Id. at 413.

-continued from previous page

issue of great concern to the Prison
Project.
"Despite the fact that there are established guidelines for health workers
to follow to protect themselves," said
Bronstein, "reports abound of prison
medical staff refusing to treat ailments in
which there is virtually no risk of transmission. Another frequent problem is
the placement of AIDS patients in the
same room or ward with prisoners who
have infectious diseases.
"Disagreements in the medical
establishment over proper treatment
coupled with the high cost of some
medications such as AZT have led to inconsistent and inadequate care for prisoners. At the same time, because there
is no cure for AIDS, many prisoners
seek the right to voluntarily experiment
with non-FDA-approved medications and
other therapies, as people with AIDS in
the free world can, which raises a difficult policy question for prison officials."
Key findings of the New York State
study include:
• Over half of all DOCS deaths between 1984 and 1986 have been due to
AIDS;
8

SPRING 1988

·'d.

"Id. at 2405-06.
"Id. at 2406.

--------------

tions placed on the exercise of those
rights. No longer can prisoners expect
the federal courts to show the sensitivity and respect for their rights that has
been demonstrated in the past. Constrained by the Supreme Court's admonition to keep hands off the day-to-day
operations of prisons, lower courts are
now obliged to defer-except in the
most abusive cases--to the judgment of
prison administrators in these matters.
One hopes that prison officials have
gained a sensitivity to the rights of prisoners in the years between Martinez in
1974 and Safley and O'Lone in 1987.
While this can be expected of many
prison administrators, others will surely
see these recent cases as an opportunity
to return to the ways of the past. Proof
of this is already apparent, as the cases
decided in the months following Safley
and O'Lone have shown.

The fallout from Safley and
O'Lone was almost immediate.
The fallout from Safley and O'Lone
was felt almost immediately. While those
decisions were pending, both the Second
and Third Circuit Courts of Appeals had
decided cases in favor of prisoners'
rights. In Higgins v. Burroughs,'3 the
court struck down a regulation that had
prohibited an inmate from carrying his
rosary beads into the prison visiting area
on the grounds that it violated the prisoner's religious rights and could not be
sustained as a valid security regulation. In
the aftermath of Safley and O'Lone, certiorari was granted and the case was
summarily reversed and remanded for
further consideration in light of those
decisions. I. A similar fate was bestowed
on the plaintiff in Fromer v. Scully,'S a
case involVing a successful challenge by
an Orthodox jewish inmate to the "no
beard" rule of the New York Department of Corrections as a violation of his
right to the free exercise of religion.
These cases are pending and their disposition should prOVide a clear indication
on how those courts of appeals will attempt to balance competing individual
and institutional interests in future cases
involVing prisoners' claims. Because of
the prominence of these two courts of
appeals, their decisions will unquestionably have significant ramifications for pris"816 F.2d 119 (3rd Cir. 1987).
108 S.Ct. 54 (1987). On remand from the Supreme Court, the Court of Appeals sent the case
back to the district court for further findings. 834
F.2d 76 (3rd Cir. 1987). Significantly, the Court
stated in dictum plaintiffs' "view" that "no difference in result w[iII] obtain" under the new standard.ld. at 77.
IS I08 S.Ct. 254 (1987), reversing 817 F.2d 227
(2nd Cir. 1987).
14

oners throughout the country.'6
Several other courts of appeals
have already had occasion to apply Safley
and O'Lone while these cases are pending. To date the Ninth Circuit has been
the most prolific. The reviews thus far
are mixed, ranging from disastrous to
promising. Perhaps the most distressing
decision as yet is Standing Deer v. Car/son,'? a case brought by Native American prisoners challenging a prison regulation that prohibited the wearing of
headgear, including religious headbands,
in the dining hall. A conservative panel
of the Ninth Circuit Court of Appeals
held that the regulation did not unconstitutionally interfere with the free exercise rights of the Native American inmates; the ban was logically connected
to the legitimate penological interests of
the prison in maintaining security. To
justify the regulation, prison officials argued that they were responding to complaints from inmates about dirty headgear being worn into the dining facility
and to threats from prisoners about taking matters into their own hands. Plaintiffs countered that the defendants had
not proved that allowing inmates to
wear their headbands during meals
would prove disruptive and that, as a
less restrictive alternative, prison officials
could inspect the headbands for cleanliness. In affirming the grant of summary
judgment in favor of defendants, the
court totally deferred to the judgment
of the prison authorities both with respect to the perceived "threat" posed
by the wearing of headgear and the
"burden" of inspectinf them as an alternative to a total ban. ' In the process,
the court demonstrated a gross insensitivity to the rights of Native Americans
and gave a clear indication of the response prisoners can expect in the Circuit when pressing First Amendment
claims in the future. '9
16Relying on Safley v. Turner, the Second Circuit
has sustained a prison directive that allowed the
inspection of inmates' outgoing mail on the
grounds that it furthered a legitimate governmental interest in preventing inmates from committing
fraud on business and from obligating funds beyond
their needs. Rodriguez v. James, 823 F.2d 8 (2nd
Cir. 1987). Although it would seem from the
court's discussion that it gave short shrift to the
inmates' claims and too easily accepted the prison
officials' rationale for the regulation, in fact, this
case provides little guidance as to how the Second
Circuit will rule in cases involving more fundamental First Amendment rights such as that in issue in
Fromer v. Scully, currently pending on remand from
the Supreme Court. 817 F.2d 227. In upholding
the regulation in James the Court applied the Safley factors woodenly and intimated that the case
might be different if the content of the letter was
either "personal" or "political," as opposed to
"commercial." 823 F.2d at II.
17
831 F.2d 1525 (9th Cir. 1987).
IS/d. at 1528-29.
"See also, Allen v. Toombs, 827 F.2d 563 (9th Cir.

The Ninth Circuit is not alone in
broadly interrcreting Safley and O'Lone. In
Hadi v. Horn, 0 the Seventh Circuit
Court of Appeals held that cancellation
of Muslim services when a Muslim chaplain was unavailable did not violate the
prisoners' First Amendment rights. To
add salt to the wound, the court also
held that the occasional cancellation of
Muslim services, even when a chaplain
was available, did not violate the prisoners' rights when the chapel was
needed for recreational activities. Addressing the chaplain claim first, the
court was persuad\;!d by the testimony
of the prison officials that security would
be jeopardized by granting inmates positions of authority as religious leaders
over other inmates, and that conflicts
might arise because inmates lacked the
requisite religious expertise to resolve
issues that arose during the meetings.
The court also based its position on the
concern expressed by the officials that
the services might be used for gang
meetings. In reaching this conclusion, the
court brushed aside plaintiffs' argument
that these concerns were based on pure
conjecture, and in any event, could be
minimized by assigning a correctional officer to supervise the meeting?' Addressing next the cancellation of services
due to scheduling conflicts in the chapel,
here again the court deferred to the authority of the prison officials: meeting
the recreational needs of prisoners, with
the concomitant boost to morale and
resultant enhancement of security, was a
legitimate governmental interest served
by the practice.22 In response to the inmates' plea that the defendants made no
efforts to reschedule the services or find
an alternative location, the court opined
that the plaintiffs failed to show that
-continued on next page
1987): Policy prohibiting "close-custody" inmates
from having access to a sweat lodge is upheld as
reasonably related to the security concerns of
prison authorities. The court also upheld regulation
prOhibiting inmate "pipe bearers" (spiritual leader)
from conducting ceremony for inmates in segregation when no outside "pipe bearer" was available.
Accord, McCabe v. Arave, 827 F.2d 634 (9th Cir.
1987): Idaho prison regulation prohibiting group
workshop and study by "close custody prisoners
held constitutional." But the same prison officials
failed to justify its refusal to allow religious literature advocating racial purity to be stored in the
chapel library where other religious literature was
permitted to be stored. See also, McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987), noting in reversal of grant of summary judgment in favor of defendants in challenge to prison officials' refusal to
provide Kosher diet, that inmates have "the right
to be prOVided with food sufficient to sustain them
in good health that satisfies the dietary laws of
their religion." Id. at 198.
2°830 F.2d 779 (7th Cir. 1987).
2I/d. at 784-86.
ll/d. at 787-88.

SPRING 1988

•••

1&1111&_1&11l1li.l1li

.

9

.J

IIII

-continued from previous page
these were reasonable alternatives?3
The deference shown by the courts
to prison officials in these cases seriously
threatens the existence of individual
rights in prison. This is cause for earnest
concern. Fortunately, not all the postSafley decisions have taken such a narrow view of its application to prisoner
rights. The most notable of these cases
involve censorship of prisoner mail. The
Courts of Appeals for the Third, Eighth
and District of Columbia Circuits have
declined invitations to extend the rational relation test established in Safley
to attempts by prison officials to censor
inmate mail and publications. The leading
case in this respect is Abbott v. Meese?4
In Abbott, federal prisoners, represented by the National Prison Project,
challenged the Bureau of Prison's regulations governing censorship of inmate
publications. Distinguishing Safley on the
grounds that the regulation there was
content-neutral and did not affect the
rights of a non-prisoner, the court held
that the more permissive Martinez standard,2S and not the rational basis test established in Safley, applied to the censorship of inmate publications. Since the
district court did not apply the Martinez
test, the decision was reversed and remanded for application of the correct legal standard. A similar regulation enforced by Missouri correctional officials
has also been held subject to the rigors
of the Martinez standard. Valiant-Bey v.
Morris. 26 Finally, in Brooks v. Adolina,27 a
case involVing a somewhat different kind
of censorship, the court held that prison
officials may not punish inmates for derogatory statements about prison officials made in a letter to an outsider
even if the same statements made orally
to prison staff would be grounds for
punishment. Here as in Abbott, the court
expressly rejected defendants' argument
that the case was 1'!overned by Safley,
and not Martinez.2J'
In spite of these developments in
the area of prison censorship, it would
seem that in one blow the Supreme
Court's decisions in Safley and O'Lone
have laid the groundwork for undoing
years of progress in the struggle for
prisoners' rights. The Court has cleared
the way for lower courts to close their
doors to prisoners. Many would applaud
this as a long time in coming. Others,
especially prisoners, brace for the immi23ld. at 788. But compare, Jackson v. Elrod, 671
F.Supp. 1508 (N.D. III. 1987) (applying Safley factors, finding that county jail officials failed to justify
total ban on receipt of hardcover books).
24Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987).
>SId. at I 170, quoting Procunier v. Martinez, 416 U.S.
at 413 (discussed at the outset ofthis article).
26829 F.2d 144/, 1443 (8th Cir. 1987).
27826 F.2d 1266 (3rd Cir. 1977).
>BId. at 1268.

10 SPRING 1988

Critics Urge Caution in
Interpreting Justice Department
Study
Russ Immarigeon
In polls, you have to know what questions are
asked and how they're being asked.
Ronald Reagan
President, The United States of America'

If people do not understand a process to an adequate degree, their advice is not likely to be of
value.
Leslie T. Wilkins
Research Professor Emeritus
State University of New York, Albany

The U.S. Bureau of Justice Statistics
(BJS) released a controversial report this
past November that ostensibly shows
strong public support for increased levels of incarceration in the United States.
As part of an apparent effort to make
the study's findings part of criminal justice lore, BJS also convened a two-day
conference, held in Ann Arbor, Michigan,
to disseminate the results of this study
to policymakers and practitioners across
the land.
However, several criminal justice
practitioners and researchers argue that
different methods of measuring public
opinion about the use of imprisonment
would produce different results. Significantly, they suggest, in the words of one

Russ Immarigeon is public policy research director for The Maine Council of
Churches' Criminal Justice Committee,
and a regular contributor to the NPP
JOURNAL
'Associated Press, "Transcript of Interview with
President Reagan," The Washington Post, December 4, 1987, p.A12.
2Leslie T. Wilkins, Consumerist Criminology, Totowa, NJ: Barnes & Noble Books, 1984, p.8.

nent assault on the few constitutional
freedoms they are allowed. In the end,
we can only hope that the blow does
not strike so heaVily that it crushes what
we believe are the last vestiges of dignity and self-respect in prison?9 III
2"The National Prison Project has recently filed a
lawsuit challenging the policy of the Idaho Department of Corrections prohibiting the growing of
beards. The plaintiff, an Orthodox Jew, contends
that the prohibition interferes with the free exercise of his religion and is not supported by a legitimate penological justification. The defendants contend that the policy furthers its interest in being
able to easily identify inmates in the event of their
escape. The case is styled Carberry v. Murphy, Civ.
No. 87-1249, and is currently pending in the federal district court in Boise, Idaho.

researcher, that "it's too premature to
use (the study) as a basis for policy."3
The BJS-funded study ignores recent advances i.p assessing public opinion
about crime and punishment issues that
increasingly assume people may change
or shift their answers to survey questions if they are given information which
provided them with a stronger empirical
basis for making their decision. In fact,
the study's principle investigators, constricted by contractual arrangements
with BJS and by limitations characteristic
of telephone interviewing techniques,
made what one of them called a "hard
choice" to not provide respondents with
additional information about alternative
penalties or sanction costs.
Recent changes in public opinion
polling hold significant potential for redUcing the misuse of survey data for
myopic political ends. In particular, edu-.
cating the general public about the comparative costs and potential advantages
of various alternative criminal sentencing
options, provides an opportunity for alternatives to imprisonment to emerge as
the widely accepted penalty of first
choice, especially for property and nonviolent offenders. 4
Criminologists Douglas R. Thomson
and Anthony J. Ragona recently identified serious flaws in traditional opinion
surveys that find public dissatisfaction
with perceived judicial leniency in criminal sentencing. "Conventional assessments of public attitudes toward sentencing are deficient in two respects,"
Thomson and Ragona argue. "First, they
do not simulate the decision-making task
facing judges. Second, they do not allow
citizens to consider the relative fiscal
3Telephone interview with Dr. Alfred Blumstein,
Dean of the School of Urban and Public Affairs,
Carnegie-Mellon University, February 8, 1988.
<Some significant movement is already being made
in this regard. An editorial in The Fayetteville Observer this past December urged North Carolina
policymakers to take "a hard look at the whole
notion of imprisonment as a punishment of first resort for nonviolent criminals." Faced with federal
court intervention because of prison overcrowding, the paper argued that North Carolina "should
not have to adopt statutes mandating the release
of nonviolent criminals to relieve overcrowding;
they shouldn't be there in the first place." As a final note, the paper further argued that "alternative
sentencing should not be regarded as an experiment; it should be the norm."

~-----

Perceptions of judicial leniency
. . . may belie the fact that
judges are handing out
increasingly stiffer sentences.
costs of current and alternative sentencing practices."s
Other arguments can also be made
against conventional surveys. Perceptions
of judicial leniency, for example, may belie the fact that judges are handing out
increasingly stiffer sentences. Moreover,
public perceptions of judicial leniency
may be based on a misunderstanding of
how legislation determines the imposition and nature of criminal sentences.
The "truth in sentencing" debate, for instance, suggests that the public is being
deceived because an offender sentenced
to a long prison term is released after a
comparatively short stay in "stir." Generally omitted from this debate is discussion of how indeterminate and determinate sentences are structured, the
purpose and process of parole decisionmaking, and operational realities of
court, defense, prosecutorial, probation,
parole and correctional agencies. Deception rarely has anything to do with it.

The Bowling Green Study
On November 8, 1987, a BJS news
release announced that "Americans
overwhelmingly support incarceration as
the most appropriate punishment for
criminals." Moreover, BJS further
claimed that "the public wants long
prison sentences for most crimes, with
other sanctions for minor infractions of
the new law or as add-ons to
imprisonment."
BJS' announcement was based on a
study of a representative sample of
1,920 adults who were interviewed
about their attitudes toward punishment
for criminal offenders in a national telephone survey conducted between August and October 1987 by interviewers
at Bowling Green State University's
Population and .society Research Center.
Eight crime vignettes were read to each
person interviewed. Each vignette included information about crime type,
amount of harm or injury, and offender
and victim characteristics. Each person
interviewed was then asked his or her
opinion about offense seriousness, the
type and amount of punishment the offender should receive, and the reasons
why they selected particular
punishments.
'Douglas R. Thomson and Anthony J. Ragona,
"Popular Moderation Versus Governmental Au·
thoritarianism: An Interactionist View of Public
Sentiments Toward Criminal Sanctions," Crime &
Delinquency, 33(3): July 1987, p.337.

Joseph E. Jacoby and Christopher S.
Dunn, the stu~y's principal investigators,
found that 71 % of those surveyed said
that imprisonment was part of an appropriate punishment, and only 17% of the
respondents mentioned probation as the
most severe sanction. Fines and restitution were included even less often. Respondents' sanction or choice varied
Widely according to the type of offense
and amount of harm resulting from the
offense. "No alternative to imprisonment was favored over imprisonment as
the most severe penalty for any offense," the study found.
While respondents connected
length of imprisonment with crime severity, they disagreed about the appropriate length of incarceration for specific
offenses. Moreover, and perhaps most
Significantly, Jacoby and Dunn found that
retribution wasn't the predominant justification given for punishment. "Our respondents claim," they say, "that many
other purposes of punishment--deterrence, boundary setting, rehabilitation,
incapacitation, morality-are more important than retribution."6

What's Wrong with the Bowling
Green Study
Interviews with research criminologists and criminal justice practitioners
suggest a number of significant problems
with the Bowling Green study. Foremost among the study's problems are: a
peculiar sense that its findings are surprising; its failure to ask respondents an
adequate range of questions or provide
them with sufficient information to make
well-grounded judgments; its failure to
place their analysis of the study's findings
in the context of related research; its
failure to consider the policy and fiscal
implications of the study's findings; and
the potential for incomplete interpretation or premature application of the
study's findings for immediate policy
purposes.
"Joseph E. Jacoby and Christopher S. Dunn. National Survey on Punishment for Criminal Offenders: Executive Summary, Bowling Green, OH:
Bowling Green State University. November 1987.
A copy of this report can be obtained from the
National Criminal Justice Reference Service
(NCJRS). P.O. Box 6000, Rockville, MD 20850,
301/251·5500 or 8001732·3277 (for places other
than Alaska, Maryland or Washington, D.C.).
Other publications may result from this study. Jacoby and Dunn are, as this article is being written
in early February. negotiating with BJS for a contract to produce three additional products stem·
ming from their study: a brief statistical bulletin
covering the main findings of the study. an edited
volume of the papers and proceedings of the Ann
Arbor conference, and a monograph consisting of a
vastly expanded version of the earlier statistical
bulletin which would include a history of public
opinion research on crime and punishment issues.

Few studies have assessed a firm
picture of public opinion, or how
it influences public policy.
Are the Results Surprising?
Few studies have assessed a firm
picture of public opinion, or how it influences public policy. Public interest in increasing criminal penalties, for instance,
may result from the general impression
that courts have been lenient with criminal offenders. If gwen the opportunity to
learn about actual court practices, would
public opinion change~ And how do policymakers respond to findings from
either of these situations~
The findings of the Bowling Green
study fit well with a knee-jerk, "get
tough" approach toward criminal sanctions, but these results are not themselves surprising, especially when one
considers what questions respondents
were asked.
Francis T. Cullen, a University of
Cincinnati criminologist who has written
widely on crime, punishment and public
opinion, observes that "the public's clear
tendency to favor prison terms reflects
their understanding that prison equals
punishment, whereas probation or fines .
mean that offenders escape punishment."
He further suggests that politicians-liberals as well as conservatives-promote
the prison equals punishment equation.
In this context, Cullen says "it is to
be anticipated that the first reaction of
most citizens is to favor throwing offenders in jail." Thus, one wonders why
the study's authors claim so boldly that
"a major finding of the survey is the degree to which respondents favor imprisonment as a punishment relative to its
actual use by the criminal justice
system."]

Consider the Questions Asked
"The way questions are asked,"
David L. Bazelon, the former chief judge
of the United States Court of Appeals
for the District of Columbia, recently
wrote, "frequently has a lot to do with
how they are answered.,,8 The Bowling
Green study appears to have placed
more emphasis on developing different
crime scenarios than on designing questions to get a more consistent picture of
respondents' feelings about how the
'Christopher S. Dunn and Stephen A. Cernovich.
"National Survey on Punishment for Criminal Of·
fenses: Comparisons with Other Punishment Indi·
cators," Bowling Green, OH: Bowling Green State
University, November 1987. p.2.
BDavid L. Bazelon. Questioning Authority: Justice and
Criminal Law, New York. NY: Alfred A. Knopf,
1988. p.21 3.

SPRING 1988

II

"The way questions are asked
frequently has a lot to do with
how they are answered," says
former ChiefJudge David L
Bazelon.
criminal justice system should respond to
criminal offending. Apparently, interviewers only asked respondents their
general thoughts about how serious particular offenses were, the type and
amount of punishment specific offenders
should receive, and why they chose particular penalties. No more detailed descriptions of what questions were asked
is given, and no information is provided
offering respondents a range of sanction
possibilities from which to choose.

What About Other Research
Findings?
Overall, the study does offer some
balance to its unnecessarily hard pronouncements about apparent public preference for imprisonment. In particular,
the study observes a significant lack of
desire for retribution by its respondents.
Unfortunately, analysis of this data has so
far failed to place this finding in the context of other public opinion research.
Specifically, studies which probe more
deeply into what the public wants from
the criminal justice system suggest that
citizens show strong support for alternatives to incarceration when they are informed about what these sanctions can
do or what imprisonment costs because,
underneath it all, they also show strong
support for both rehabilitation and
restitution.

i
.1
:1

I

Failure to Examine Study's
Implications
"Everyone agrees that you can't
translate (the study's findings) directly
into prison sentences," researcher Jacoby told the NPP JOURNAL. In fact, Jacoby wonders what can be done, as he
put it, "without doubling, tripling or
quadrupling the prison system."
Alfred Blumstein, Dean of the College of Urban and Public Affairs at Carnegie-Mellon University, argues that
"policy shouldn't deal simply with public
perceptions." Policymakers need to examine, he further maintains, constraints
such as the availability of money and capacity to provide sufficient sanction
resources.
Steve Gottfredson, a Temple University criminologist who conducted a
public and policymaker opinion survey
about correctional issues for the U.S.
National Institute of Justice several years
ago, is encouraged that the study's respondents suggested that retribution was

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SPRING 1988

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the least desirable goal of sentencing
criminal offenders. However, he also observes that "the general public has a
poor understanding of what prisons do,
but they seem to have a good understanding of what they want them to
do."
In such a context, wherein the survey's respondents are left uninformed
about all available choices and the implications of choosing from a limited range
of sanctions, to what extent can these
findings accurately be applied to a reality-based policy debatel

A Cautionary Note on Using the
Study for Public Policy
At the Ann Arbor conference,
Blumstein urged caution in the interpretation and use of the study's findings.
"People don't have an anchor in reality,"
he argued, observing that when people
are asked what they think is an appropriate punishment for a specific crime
they generally give a response that is
two to four times the length of what an

offender would actually serve.9
People frequently form their opinions of appropriate punishments, Blumstein says, from the headlines or lead
paragraphs in newspaper articles. Often
these sources of information are wrong
or misleading, especially when they emphasize the maximum sentence an offender could receive. Time served statistics consistently show that an offender
rarely serves the maximum sentence
possible for a given conviction.
"The basic problem is one of interpretation," Gottfredson adds. "I'm not
yet convinced that the public knows
what it truly means to be sentenced to
prison for some time."

Bowling Green Responds to Critics
Jacoby and Dunn, the Bowling
'For more information on this perspective, see
Alfred Blumstein and Jacqueline Cohen, "Sentencing of Convicted Offenders: An Analysis of the
Public's View," Law and Society Review, 14(2):
223-261, Winter 1980.

Green researchers, acknowledge some
of the same shortcomings mentioned by
the study's critics. "We are aware," jacoby told the NPP JOURNAL, "that a
large proportion of respondents would
probably choose alternative scenarios if
we presented them." The study, he says,
is only a first step. "The primary thing
we didn't do," he adds, "is offer some
alternative scenarios, in particular intensive supervision."
While the study finds, in jacoby's
words, that the public is "not fond" of
traditional probation, he also observes
that the public is not aware of the studies showing the positive results of realworld alternatives to incarceration.
Conclusion

The Bowling Green study's impact
on imprisonment policies is uncertain at
this point, primarily because its findings
have been in the public domain for only
a short period of time. These same findings, however, could become the basis
for inappropriate policy decisions, particularly in the absence of a proactive response to the findings and how they are
used. While some attention should be
directed toward inadequacies with the
study's approach cited in this article,
more energy must be centered on how
BjS' interest in this study fits in with
other Reagan administration criminal justice policies and initiatives.
Repressive components of the Reagan administration's approach toward
criminal justice have included attacks on
the exclusionary rule, nominations of Supreme Court candidates who support
the death penalty, coordination of federal support for accelerating state prison
construction, as well as support for private prisons as a method of assuring that
more penal facilities be built. Reagan-inspired policies also include bail practices
(under the Bail Reform Act of 1984)
that, according to one observer, put the
United States in the same punitive
league as Chile and South Africa by allowing "the indeterminate detention of
people not convicted of a crime."IO
The administration's criminal justice
policies have only recently reached full
Orwellian overtones, however. In the
past few years, for instance, agencies of
the U.S. Department of justice have
claimed, in general, that: crime causes
poverty; nearly everyone, in what is
truly a land of opportunity, will become
a victim; and imprisonment is the most
economical method of handling criminal
offenders. Each of these statements
serves as a salvo for the broader administration emphasis on imprisonment as
the primary response to criminal behav'"Martin Garbus, "Detention U.S.A.," The Nation,
january 30, 1988, p.1 13.

Md. County Sued By NPP, Local
ACLU, Agrees to Improve Jail
On january 25, two days before
trial was scheduled to begin, the National Prison Project and the Maryland
ACLU reached an interim agreement
with Wicomico County jail officials to
relieve crowding and to improve fire
safety, sanitation, plumbing, and medical
care at the Maryland Eastern Shore
facility.
The agreement prOVides that the
county will reduce the jail population by
establishing a pretrial release program
designed to divert low-risk inmates from
jail to various forms of bail release.
According to Claudia Wright, National Prison Project attorney handling
the case, the ACLU and the NPP were

appointed by the United States District
Court in Baltimore to represent plaintiffs who had filed over 20 individual
lawsuits complaining of the "atrocious
conditions" at the jail.
"We found their complaints to be
well-founded," said Wright. "Our experts were prep~red to testify that the
jail should be closed due to imminent
health hazards. We believe this settlement will protect the prisoners by reducing population and improving conditions more quickly than the court
processes could act, until the newly constructed jail is opened later this year.
But we will be returning to the jail prior

ior. As things stand now, BjS' response
to the Bowling Green study suggests
that the administration sees apparent
strong public support for imprisonment
as the glue that holds these separate
criminal justice initiatives together as a
single, ideological package.
In the end, BjS and its critics agree
that too little information is disseminated to the public about the criminal
justice system's operations and procedures. They disagree, however, about
what types of information should be emphasized and the relationship between
public opinion and public policy.
joseph M. Bessette, BjS' deputy director for data analysis, told the Ann
Arbor conference attendees that "the
multiplicity of decision-makers, the huge
number of discrete cases, and the passage of time combine to generate enormous information costs that create barriers to public knowledge of and impact
upon punishment policy." However, he
also argued that "aggressive and publicspirited political leadership that draws
upon reliable aggregate statistics on punishment and a detailed understanding of
local practices and policies can do much
to form an educated citizenry capable of
directing crime and punishment policy in
a responsible and just way.""
Bessette places the burden of blame
on criminal justice leaders for not responding adequately to what he feels is
an undisputed public preference for increased use of imprisonment as social
policy. However, others, like Stephanie
Bass, executive director of the North
Carolina Center on Crime and Punishment, distrust studies which "leave un-

asked all the questions about what prisons actually do. The things," she says,
"that people in the field may actually
know they don't do.
"Alternatives to incarceration are
burgeoning in America," Bass observes,
"but the study doesn't operate in this
reality. The study doesn't do a fair job
of explaining what alternatives to prison
actually are so that people can make an
informed choice." She also shares Blumstein's concern that policy-relevant information about the costs of different policy approaches, especially in the context
of scarce prison space, has not been included in the study.
In the end, the BjS-Bowling Green
study must be placed in the larger context of actual sentencing and prison
practices and the findings of other empirical investigations of public opinion.
"In terms of policy responses to
public attitudes about punishment," British researcher Mike Hough told the Ann
Arbor conference, "perhaps the clearest
thing to emerge [from his review of
public opinion research] is the Protean
nature of opinion. People's views about
the adequacy of sentencing differs across
crime categories. When asked about
specific sentences, their views shift with
the amount of information they are provided about the crime. It is equally clear
that there is widespread dissatisfaction
with sentencing practice, and this threatens to erode popular confidence in the
criminal justice system. It is far from
clear, however, that the response entails
adjustments to sentencing policy. Even,
or especially, those who argue that the
weight of public opinion is the best
guide to the eqoity of sentencing must
accept the need for public opinion to be
informed before it can be trusted." III

"joseph M. Bessette, "Public Opinion, Politics, and
Punishment," Washington, D.C.: U.S. Department
of justice, November 1987. p.26.

-continued on next page

SPRING 1988

l1li

,.,1""" .............

13

iiiiiiiIII..

-continued from previous page

to March I to review the improvements
to assure the safety of the prisoners."
The lawsuit claimed that the "unsafe, unsanitary and overcrowded conditions of this jail, as well as the risk of
fire. demonstrated the likelihood of irrepThe settlement agreement in Hendrickson provides for a reduction of population to ease overcrowded conditions such as these at the Wicomico County Jail.
FIi"'li4H]-n&"-'

I
'(

1

arable harm to the plaintiffs."
The ACLU complaint alleged the
following:
• Prisoners are housed at least
eight men to a IOx20 foot cell. On the
west side of the floor, three cells house
prisoners who are never alloWlld out of
their cells for recreation or exercise and
who must eat all meals inside the cell.
"Roaches and other unidentified bugs
flourish in the filth";
• There is no light whatsoever in
the cellblock at night, and light is dim
and inadequate during the day;
• The "stench of human waste ...
is overwhelming... ." Bodies are
crowded together in incredible filth, and
noise is deafening;
• Guards are not stationed in the
cellblock, but must be summoned by

banging on the steel bars, adding to the
noise;
• A "shocking" risk of fire exists in
the jail. "The facility [is] a virtual tinderbox.... The design of the building
which includes heavy, manually locked
cell bars and steel doors, barriers to supervision of the prisoners, and the lack
of feasible routes of egress ensures that
if a fire occurs, all will surely perish."
The agreement calls for plaintiffs'
lawyers to inspect the Detention Center
prior to March I, 1988 to insure compliance with the \erms. A final agreement
will be drafted at that point, provided
compliance is acceptable. The case is
being handled by Claudia Wright, ACLU
National Prison Project Associate Director, and Susan Goering, Maryland ACLU
Legal Director. IiliIIl

For the Record

14 SPRING 1988

•
A National Conference on Private
Corrections will be held May 22-24 in
Lexington, Kentucky. Co-sponsored by
the Council of State Government and
the Department of Correctional Services
at Eastern Kentucky University, the conference will address legal and ethical issues, the politics of privatization, contracting, and evaluation. Speakers include
Edward I. Koren, a staff attorney with
the National Prison Project, and Tom
Beasley of the Corrections Corporation
of America. For more information about
the conference contact the Department
of Correctional Services, Eastern Kentucky University, 202 Perkins, Richmond,
KY 40475,606/622-1497.

lewski does, that there is an endless
pool of offenders committing 187 crimes
a year who could be imprisoned;
• Incarcerating one offender who
commits 187 crimes a year will not necessarily result in 187 fewer crimes being

•
A recent report issued by the National Institute of Justice (NIJ) claiming
that locking up more offenders in prison
will save money is based on a "selective
use of information," according to a new
analysis by The Sentencing Project of
Washington, D.C.
The Sentencing Project's analysis
examines the claims of Edwin W. Zedlewski of NIJ that the societal costs
saved through reduced crimes and criminal justice expenditures outweigh the
massive costs of prison construction and
operation. The analysis criticizes Zedlewski's use of a RAND Corporation
study which contended that prisoners in
three states committed an average of
187 crimes a year. According to The
Sentencing Project, the use of the study
is misleading because:
• Prisoners who report they committed 187 crimes a year are not typical
of all offenders, since the ones who
commit the most crimes are most likely
to be caught and imprisoned. Therefore,
there is no reason to assume, as Zed-

While prison officials continue to hold
enormous power over prisoners, since
the late I960s judicial decisions have begun to reflect an attempt to eliminate
major prison abuses.
Topics covered include freedom from
cruel and unusual punishment, due proc~
ess, prison censorship, religious and racial discrimination, special concerns of
women prisoners, medical care, rehabilitation, parole, and remedies and proce~
dures for challenging conditions of
confinement.
David Rudovsky is Visiting Professor
of Law at the University of Pennsylvania.
Alvin J. Bronstein is the Executive Director and Edward I. Koren is a Staff Attorney for the National Prison Project of
the ACLU Foundation. Julia Cade is a
Paralegal and Public Information Assistant for the National Prison Project.
The book will be available at bookstores for $6.95. As in the past, it will
be free of cost to prisoners, from the
ACLU, 132 West 43rd St., New York,
NY 10036.

The Rights of Prisoners
Completely Revised and Up-to-date, A
Comprehensive Guide to the Legal
Rights of Prisoners under Current Law

Fourth Edition
By David Rudovsky, Alvin 1. Bronstein,
Edward I. Koren, and Julia Cade

committed since many crimes are committed by groups, and new potential offenders will be recruited to the group;
• Offenders who are imprisoned
may become "hardened" by the prison
experience or face societal prejudices
upon release, and therefore commit
more than their "average" number of
crimes.
The Sentencing Project also questioned the crime control savings cited by
Zedlewski, including such items as commercial security, individual firearms, and
guard dogs. Even if crime rates do go
down, societal spending on these items
may not decrease, since spending on security devices often is a function of people's fear and "perception" of crime,
rather than actual crime rates.
The Sentencing Project called for a
"more comprehensive examination" of

these issues, including alternative policies
such as job creation or expanded substance abuse programs.
The Sentencing Project is a nonprofit organization which promotes the
development of alternatives to
incarceration.
For a copy of The Sentencing Project's analysis, "Does Building More Prisons Save Money?," contact The Sentencing Project, 1156 15th Street N.W.,
Suite 520, Washington, D.C. 20005; 2021
463-8348.
• The National Sheriffs' Association
has received a grant from the Bureau of
Justice Assistance to develop a technical
assistance program to aid county and local criminal justice agencies in developing
and implementing stress management
services for their departments.

NSA's project will result in the development of a monograph detailing all
aspects of establishing and maintaining
stress management programs as well as a
model first-line supervisor's training curriculum addressing appropriate methods
of identifying and relieVing job-related
stress.
A demonstration training workshop
is scheduled f9r NSA's Annual Conference in Louisville, KY, June 19-24, to introduce the monograph and the training
curriculum. These materials will be disseminated to state sheriffs' associations,
police chiefs' asstlciations, and criminal
justice training academies at that time.
For further information on this
project, please contact Anna Laszlo,
Project Director, NSA, 703/836-7827 or
1-800-424-7827.

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

Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys
~.<.;: the state of the law on various
~ prison issues (many case cita.~ tions). 24 pages. $2.50 prepaid
, from NPP.
The National Prison Project Status Report lists by
state those presently under
court order, or those which
have pending litigation either
involVing the entire state
prison system or major institutions within the state. Lists
only cases which deal with
overcrowding and/or the total
conditions of confinement.
(No jails except District of
Columbia). Periodically updated. $3 prepaid from NPP.

The National Prison
Project JOURNAL.
$20/yr. $2Iyr. to prisoners.
The Prisoners' Assistance
Directory, the result of a national survey, identifies and de>tribes various organizations
and agencies that prOVide assistance to prisoners. Lists national, state, and local organizations and sources of
assistance including legal, library, medical, educational,
employment 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

QTY. COST

Fill out and send with check payable to

NAME

The National Prison Project

ADDRESS

1616 P Street, NW
Washington, D.C. 20036

A Primer For Jail Litigators 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. 1st edition, February
1984. 180 pages, paperback,
$15 prepaid from NPP.

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-

QTY. COST

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
1985. $15 prepaid from NJP.
_

-'---

_

CITY, STATE, ZIP

_

SPRING 1988

D-

15

The following are major developments in the Prison Project's litigation
program since October 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. The court of appeals denied the government's petition for rehearing on the prisoner correspondence
issue, and all proceedings were stayed by
the district court until the Solicitor General determines whether or not a petition for certiorari will be filed. If a petition is filed, the district court will wait
for the Supreme Court to take action.
Cody v. Hillard-This suit challenges
conditions at the South Dakota State
Penitentiary. In October, the Eighth Circuit Court reversed the trial court order against overcrowding, with three
judges dissenting from the decision. The
Prison Project filed a petition for certiorari on January 4.
Epps v. Martin-This case challenges
conditions at North Carolina's Craggy
State Prison. The district court issued
approval of a settlement which prOVides
for improvements in fire safety, ventilation, heating, medical and mental health
care, and a reduction of triple-bunking
and overall overcrowding. Plaintiffs are
now monitoring overcrowding.
Palmigiano v. DePrete--This case·
challenges conditions in the Rhode Island
State Prison system. In October a modi-

National prison Project
American Civil Liberties Union Foundation
1616 P Street, NW, Suite 340 .
Washington, D.C. 20036

(202) 331-0500

16 SPRING 1988

fied order was entered establishing new
population limits for the Intake Center,
with the limits going down on January I,
1988 and April I, 1988. At that time,
defendants are. reqUired to produce a
long-range plan for dealing with
overcrowding.
Phillips v. Bryan-This is a conditions
case at Nevada's maximum security
prison. The consent decree on all issues
which the parties agreed to in September was given to plaintiffs for review and
granted preliminary approval by the
court in October.

u.s. v. Michigan/Knop v. JohnsonThis is a statewide Michigan prison conditions case. In Knop, plaintiffs filed an
objection to defendants' remedial plan.
Our motion for reconsideration on the
issue of segregation in the dining halls
was denied by the court. In U.S. v. Michigan, defendants filed an appeal from the
litigating amicus ruling. Defendants' motion to modify the mental health requirements was defeated through the efforts of amicus.
Carberry v. Murphy-In this new
case, we are challenging the "no beard"
rule of the Idaho Department of Corrections as infringing upon the free exercise of the rights of those inmates
whose religious beliefs forbid them to
shave. In December, the district court
denied plaintiffs' motion for preliminary
injunction.
Anderson v. Orr-The National
Prison Project became co-counsel in an

on-going case cl1allenging conditions at
the Westville Correctional Center in
Westville, Indiana. Our efforts will be directed primarily at improving the quality
of medical and psychiatric care.
Maryland Jail\-The Prison Project,
along with the Maryland ACLU, filed suit
against three jails in Maryland's Eastern
Shore. Hendrickson v. Welch requests
closure of the Wicomico County Jail and
seeks alternative placement of inmates
until a new jail, now under construction,
is completed. Macer v. DiNisio seeks relief for overcrowding of and unconstitutional conditions at the Talbot County
Jail, with families and friends of inmates
joined as a second plaintiff class. Dotson
v. Satterfield is a challenge to overcrowded and unconstitutional conditions
at the Dorchester County Jail, with a
special focus on First Amendment rights
and receipt of publications. An interim
agreement was reached in Hendrickson .
on January 25, two days before trial was
to begin, which prOVides for a reduction
of population by establishing a pretrial
release program.
Tillery v • Owens-This new case entered against the old Western Penitentiary in Pittsburgh, Pennsylvania (now
known as the State Correctional Institution at Pittsburgh, or SClP) challenges
double-ceiling practices, environmental
conditions and improper housing of
mentally ill inmates, among other issues.
The original complaint was filed pro se
and Legal Services lawyers were assigned
to the case. We have since filed an
amended complaint. II

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