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

ternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the
stipulation that the National Prison Project JOURNAL be credited
with the reprint. and that a copy of the reprint be sent to the

editor.
The JOURNAL is scheduled for publication quarterly by the
National Prison Project. Materials and suggestions are welcome.
The National Prison Project JOURNAL is designed by James

True. Inc.

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SUMMER 1988

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-continued from front page

The 1980 Riot at PNM
Before examining the defendants'
argument in detail, it is important to recount the events at PNM of February 2
and 3, 1980, and to recall exactly why
the defendants agreed to the comprehensive decree they now oppose. During
a 36-hour period, inmates gained access
to every part of the main penitentiary
bUilding. Overpowering four correctional
officers during a routine inspection, and
taking their keys, inmates pushed
through an oper'l door, captured more
officers and freed prisoners in other
units of the building. By smashing
through the penitentiary's control center, and using grill gates left open
through lax security procedures, prisoners obtained keys to every other part
of the facility. Twelve correctional officers were taken hostage. In a terrifying
show of inmate on inmate violence, 33
prisoners were killed, and at least 90
were seriously injured, many under unimaginably brutal circumstances. One
prisoner died from being shot in the face
at close range with a tear gas gun, and
another was decapitated. "Execution
squads" of inmates targeted those in
protective custody for death and went
looking for their intended victims. Many'
of those who survived were raped,
beaten and stabbed, or suffered drug overdoses from narcotics obtained from the
prison pharmacy. Fires were set in the
psychological unit, the administrative
records unit, the warden's office, and
housing areas. Damage to the facility was
estimated at $2.6 million. The damage
done to pris?rlers and prison officials,
their families; and the state itself, is
un,~uantifiable.

. In seeking to set aside significant
portions of the decree, New Mexico
prison officials seem to have all but forgotten that the riot was directly attributable to the unconstitutional conditions
at PNM, and that the consent decree
specifically addressed many of the underlying problems found to have precipitated the riot. The reports of the New
Mexico Attorney General, mandated by
legislation passed in the wake of the
riot, concluded that overcrowding, understaffing, inadequate classification procedures, inadequate medical, dental and
mental health care, lack of exercise and
recreation, nonprivate visitation and substandard food all helped to create the
intolerable living conditions and extreme
inmate frustration that led to the riots. I
-continued on next page

Mark Lopez is a staff attorney with the
Prison Project
I Reports of the Attorney General on the February
2 and 3, 1980 riot at the Penitentiary of New

SUMMER 1988. 3

~ontinued

from previous page

The reports of the Attorney General
concluded that enforcement of the decree would be critical to prevent future
catastrophes.2
It is against this backdrop that defendants are now attempting to void
major portions of the decree, including
those concerning inmate programming,
due process in disciplinary procedures,
inmate classification, overcrowding limitations, and visitation. Their argument is
that the combined holdings of the Supreme Court's decision in Pennhurst v.
Halderman) and the Fifth Circuit's decision in Le/sz v. Kavanagh 4 preclude a
federal court from enforcing a consent
decree against a state beyond the guarantees contained in the federal Constitution and laws. Stated another way, defendants' position is that any portion of
a consent decree not specifically
grounded on federal remedies for federal violations is void as a matter of jurisdiction and cannot be enforced against
the state under the Eleventh Amendment. Plaintiffs, represented by the National Prison Project, disagree, stressing
that the state's argument rests on an incorrect and unsupported conception of
the Eleventh Amendment and a misapplication of the principle of comity.
The extravagant contentions made
by New Mexico officials have dangerous
and far-reaching implications for civil
rights Iitigal)ts, if accepted by the courts.
The obvious threat is that it will subject
existing decrees to collateral attack and,
as a corollary, would drastically reduce
the circumstances under which future
plaintiffs can settle lawsuits with state
officials, since they could not rely on a
state's agreement not to contest relief.
The threat is particularly acute in prison
and similar institutional litigation since
relief is sought on a totality of conditions theory where independent conditions may not rise to constitutional levels in and of themselves. In the unlikely
event that New Mexico prison officials
prevail, the enforceability of literally
hundreds of ~isting decrees in place
throughout the country, which operate
to ensure that prison officials conform
their conduct to constitutionally acceptable standards, would be jeopardized.
Thus far, New Mexico has not been successful in having the decree set aside. In
a recent decision, the district court
charged with the enforcement of the
decree rejected the state's contention.
Mexico, I and II (June 5, 1980; September 25,
1980).
2Attomey General Report II, p. 46.
3465 U.S. 89 (1984).
4807 F.2d 1243 reh'g. denied, 815 F.2d 1034 (5th
Cir. 1987) (seven judges dissenting from denial of
rehearing en bane).

4

SUMMER 1988

The reports of the Attorney
General concluded that
enforcement of the decree would
be critical to prevent future
catastrophes.
Duran v. Carruthers. 5 Although an appeal
is pending, the district court throughout
its opinion characterizes defendants' position as one of "fundamental confusion
and misapplication of principles ... extravagant contentions, . . . and
erroneous. "6
Legal Issues

As noted above, the defendants extrapolate from the holdings of Pennhurst
and Le/sz the conclusion that a district
court may not enforce a consent decree
beyond the guarantees contained in the
federal Constitution and laws simply because it is a consent decree. Neither of
these cases can be read to stand for this
proposition. In Pennhurst, a class of mentally retarded persons sued the Pennsylvania Department of Public Welfare and
various state officials for violations of
their alleged constitutional, federal, and
state statutory rights to adequate habilitation while residing at Pennhurst, an institution for the care of the mentally retarded. The Supreme Court held that
with respect to the state-based claims,
the Eleventh Amendment barred the
federal court from ordering the state to
conform its action to state law. In Le/sz,
a similar case brought in Texas, the Fifth
Circuit construed Pennhurst to encompass a prohibition of a federal court's
enforcement of a consent decree based
solely on state law.?
In their suit against New Mexico
prison officials, plaintiffs alleged violation
of federal, not state law. Plaintiffs contended that the totality of conditions
violated the Eighth Amendment's prohibition against cruel and unusual punishment. The consent decree and the relief
5678 F. Supp. 839 (D.N.M. 1988), appeal pending.
61d.
'When Le/sz was decided, there was considerable
ambiguity over the precise issue that was resolved.
The question purported to be answered was
"whether the district court could enforce a consent decree beyond the guarantees contained in
the federal constitution and laws simply because it
was a consent decree." This question was answered in the negative and is how New Mexico
chose to frame the issue in this case. However, a
more careful reading of the opinion makes clear
that the precise question answered was whether a
district court can enforce a consent decree based
solely on state law. To the extent Le/sz purported
to answer a broader question, that answer was
later construed as dicta. Ibarra v. Texas Employment
(mm'n., 823 F.2d 873, 877 (5th Cir. 1987).

contained therein were in turn based on
those allegations. This crucial fact, ignored by the defendants, is the fundamental error that undermines their argument. As recognized by Judge Burciaga
in Duran, absolutely nothing in Pennhurst
or Le/sz imposes a jurisdictional limitation on the power of the courts to vindicate the supremacy of federal law by
enjoining state officials whose conduct
violates federal law. s Indeed, the princi~
pie of federal supremacy animated in Ex
Parte Young directly refutes the defendants' character~zation of Pennhurst as a
limitation on the scope of relief. 9 Ex
Parte Young does not require, or even
permit, a federal court to countenance
constitutional violations. lo Thus, to the
extent the defendants construe the
holdings in Pennhurst and Le/sz as a limitation on remedy in the face of a federal
violation, they are simply incorrect. II
The New Mexico officials' attempt
to avoid this conclusion by arguing that,
analyzed independently of each other,
none of the provisions in the decree
serve to vindicate federal rights, and
therefore the court is without jurisdiction to enforce the provisions. Under
Rhodes v. Chapman, I for instance, the
defendants complain, double-ceiling is
not per se unconstitutional. Nor are
inmate programming') or contact
visitation '4 always required by the Constitution, the defendants also claim.
Again, however, the defendants make a
fundamental mistake in establishing their
construct. Plaintiffs have not alleged that
each offending condition viewed separately is unconstitutional. Rather, the
claim is that an aggregation of offending
conditions combine to violate the Eighth
Amendment. This is the traditional
mechanism for challenging prison conditions and is the central distinguishing feature of Eighth Amendment totality of
conditions analyses, as should be known
to anrone familiar with prisoner litigation. 1 One cannot, in a vacuum, determine that a particular condition does or
does not violate the Constitution, or
that a particular item of relief is necessary. Accordingly, when necessary to
remedy an unconstitutional totality of
conditions, particular relief not required
BDuran, 678 F. Supp. at 849-850.
'Ex Pane Young, 209 U.S. 123 (1908).
'''The principle of Ex Pane Young is that a state inherently lacks the power to authorize one of its
officers to act in a manner that violates the United
States Constitution. Therefore, any officer acting in
violation of the United States Constitution is acting ultra vires and loses his sovereign immunity under the Eleventh Amendment.
"Duran, 678 F. Supp. at 849.
'2452 U.S. 337 (1981).
"Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).
'4Block v. Rutherford, 468 U.S 576 (1984).
ISHutto v. Finney, 357 U.S. 678 (1978).

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independently under the Constitution
may be absolutely critical to curing the
overall constitutional violation. '6 Thus, it
is irrelevant that a particular item of relief may not be universally required under the Eighth Amendment. Defendants'
failure to comprehend this basic concept
is fatal to their argument.
Distilled of the incorrect assumption that the Eleventh Amendment considerations discussed in Pennhurst and
Le/sz are not a limitation on the scope
of relief for federal violations, New
Mexico's position comes down to the
contention that even when federal jurisdiction exists, nonjurisdictional principles
of comity prohibit the entry of relief,
even by consent, that extends beyond
the measures the court could have imposed following trial. The problem with
this premise, as observed by Judge Burciaga, is that it overlooks the fact that
nonjurisdictional-based objections to
both liability and remedy can be
waived. I? Thus, by entering into the decree the state waived the right to contest plaintiffs' allegations that conditions,
viewed in their totality, violated the
Constitution, as well as their right to
comity-based constraints in the form of
eqUitable relief. IS Indeed, judicial application of such restraints in the face of a
remedy proposed by the defendants
would be anomalous. '9 In these circumstances, to reject an agreement between
the parties would arrogate the authority
of duly empowered state officials to determine the proper operation of state
institutions--precisely the judicial act
that most offends the defendants. 20
Aside from the defendants' bizarre
perversion of the principle of comity,
the Supreme Court has expressly rejected the proposition that a court's
power to approve a decree is narrower
than its power to fashion injunctive relief
after a trial on the merits. In Local Number 93 v. City of C/eveland,21 the Court
observed that it is the parties' agreement that serves as the source of the
court's authority to enter any judgment
at all, and thetefore, in "addition to the
law which forms the basis of a claim, the
parties' consent animates the legal force
16ld. at 685-89. This conclusion is consistent with
the widely accepted view that in fashioning equitable relief on the basis of a constitutional violation,
remedial decrees may require actions not independently required by the Constitution if those actions are, in the judgment of the court, necessary
to correct the constitutional deficiencies. Milliken
v. Bradley, 433 U.S. 267 (1977); Green v. County
School Boord, 391 U.S. 430 (1968).
17Duran, 678 F. Supp. at 848. See generally, Swift &
Co. v. United States, 276 U.S. 311, 316 (1928).
IS/d.
19ld. (emphasis in original).
2°ld. at 852.
21

106 S. Ct. 3063 (1986).

1988 SURVEY

NPP Gathers Statistics on AIDS
in Prison
Judy Greenspan
In 1985, the National Prison Project
conducted its first survey on AcqUired
Immune Deficiency Syndrome (AIDS) in
the nation's prisons. Since that time, the
issue has become a prominent one for
corrections officials, prisoners, state legislators and the public at large.
During the spring and summer of
1987, the National Prison Project conducted a second survey. We sent out a
seven-page questionnaire to the medical
administrators of departments of correc-

Judy Greenspan, new on the Prison Project
staff, is the Project's AIDS information
coordinator.
of a consent decree. "22 Thus, while it is
conceivable that a "consent judgment secures for plaintiffs' rights greater than
those directly required under the Constitution, a court is not precluded from
entering the decree merely because the
decree provides broader relief than the
court might have awarded after trial. "23
This is not to suggest that a court's
power to approve a decree is unlimited,
as the Court in Local 93 was careful to
point out. The Court held that a consent decree "must spring from the
pleadings and serve to resolve a dispute
within the court's subject matter jurisdiction. Furthermore, consistent with
the foregoing, it must come within the
general scope of the case made by the
pleadings," and "further the objections
of the law uRon which the complaint
was based." 4 This threshold was plainly
satisfied in Duran since, as recognized by
Judge Burciaga, every substantive section
of the consent decree was tied to the
factual allegations in the complaint,
which, in turn, formed the factual predicate for plaintiffs' claim that the totality
of conditions at the Penitentiary of New
Mexico offended the United States Constitution. 25 After conducting the limited
review required by Local 93, and in view
of the presumption that the parties negotiated at arms' length and agreed that
the decree was a fair resolution of their
competing claims, the court concluded
that there was no cognizable basis on

tions in every state, the District of Columbia, and the Federal Bureau of Prisons (BOP), concerning the incidence of
AIDS in their p~ison systems. We received 39 written responses, and 12 additional surveys were completed over
the telephone. (One state, Missouri, refused to answer the survey. We relied
on other written information, such as
news articles and National Institute of
Justice reports; for data on Missouri.)
We made follow-up phone calls to 35
survey participants during the first two
weeks of April 1988 to update the
information.
-continued on page seven

which to alter the structure or detail of
the consent judgment. 26
Correct Result

Even though the defendants are
spending hundreds of thousands of dollars to litigate this issue, the result in
Duran is unquestionably correct. As
noted above, the defendants' argument,
if accepted, would drastically reduce the
circumstances under which plaintiffs
could settle cases. Defendants' agreement not to contest relief could not be
relied upon. Requiring trials of all cases
involVing state defendants would impose
tremendous burdens on the federal judiciary, particularly because, when tried on
the merits, these cases are notoriously
long and complicated. Nor is it easy to
see why concerns for federal-state relations should lead federal courts to enforce policies that undermine the possibility for settlement in such cases. If
plaintiffs cannot have a binding settlement with state officials, then defendants, regardless of their wishes, will
have no choice but to have their constitutional failings formally proven in court.
In view of the Attorney General's Reports on conditions at PNM and state
officials' own honest recognition of the
abysmal nature of those conditions, the
consent decree minimized federal court
intervention in the process by which the
state recognized its constitutional faults
and developed a program to solve
them. •

22/d. at 3077.
231d.

2·,d.
25Duran, 678 F. Supp. at 851.

26Duran, 678 F. Supp. at 852-853.

SUMMER 1988 5

-continued from page five

The NPP survey focused on the following areas: (I) demographies; (2) testing and confidentiality; (3) housing and
medical care; (4) education of prisoners
and staff; and (5) written institutional
policies and protocol. More specific
questions were asked under each major
topic. For example, under demographics,
we sought information concerning the
sex, race and risk group of those prisoners with AIDS. In the testing category, a long list was presented of various
testing programs that institutions may
have adopted for both prisoners and
staff. Questions concerning the segregation of prisoners with AIDS, ARC (AIDS
Related Complex), and those testing
positive to exposure to the Human Immunodeficiency Virus (HIV), as well as
their access to prison facilities and programs, fell under category 3. We asked
department of corrections officials to
elaborate on educational programs and
materials being used for prisoners and
staff throughout their system under category 4. Finally, 29 states, the District of
Columbia, and the BOP provided us
with copies of their printed materials regarding policies and educational
programs.

AIDS Population Increases
There has been a dramatic increase
in the number of prisoners with AIDS
since our last survey in 1985. See Table,
page six. At that time, we reported only
420 AIDS cases in the nation's prisons.
As of April 1988, that number has
climbed to at least 1,650; this figure
does not include statistics from county
or city jails. (A recent study by the National Institute of Justice shows 644
cases of AIDS among prisoners in the 30
largest jails.) This increase is not due to
an epidemic of AIDS in the nation's prisons. It is our opinion, based on the survey results, that the increase results
from more intensive screening and
testing.
As in 1985, the majority of the
cases are founcl in the Middle Atlantic
region--New York, New Jersey, and
Florida, with the next largest concentration of cases occurring in California.
There are still a few states which report
no AIDS cases, such as West Virginia,
Vermont and North Dakota. Unlike in
1985, most states now use the Centers
for Disease Control's criteria to categorize prisoners with AIDS, and ARC, thus
developing a more uniform definition of
the disease. These criteria define AIDS
as an illness characterized by one or
more of the following 'indicator' diseases: Candidiasis of the esophagus,
throat or lungs, Herpes Simplex Virus,
and Kaposi's Sarcoma.'

While the number of cumulative
AIDS deaths in the system has also increased greatly since 1985, the percentage of deaths is still the same--about
50% of the total cumulative cases. The
reporting of prisoners with ARC is now
more accurate. In 1985, most prisons did
not report the prisoner ARC population
and did not use a medical definition.
Now, with updated medical information,
most report the number of prisoners
with ARC. A person with ARC displays
clinical features such as continuous fever,
diarrhea or weight loss, and laboratory
abnormalities regarding a reduction of
the Helper T Cells or an increase of
Suppressor T Cells.
Statistics citing sex and race breakdown are incomplete. However, statistics from some of the larger states show
a very low incidence of women prisoners with AIDS: California-IIO total,
I female; New Jersey-246 total, 12 female; Massachusetts-20 total, 2 female;
and Texas-64 total, 4 female. In New
York women make up 3% ofthe current prisoners with AIDS population. In
Florida, less than .5% are women. Statistics compiled by the National Institute of
Justice show that approximately 5% of
both federal and state prisoners with
AIDS are women. 2
It was difficult to obtain an accurate
racial breakdown of prisoners with AIDS
because some states either do not collect that information or would not give
it out. Information from New York
State shows that 45% of prisoners with
AIDS are Hispanic and 45% are Black. In
Ohio, with a cumulative total of eight
AIDS cases, one prisoner is white, four
are Black and three are Hispanic. In
Texas, with a cumulative total of 64
cases, 24 are white, 34 Black and 3 Hispanic. Other demographic data on risk
group membership was even harder to
obtain. However, with the exception of
California which reported a large number of homosexual male prisoners, the
other systems reported that most prisoners with AIDS have a history of IV
drug use.

AIDS Prevalence Studies
Several prisons reported the recent
~ompletion of prevalence studies concerning the number of prisoners testing
positive with the HIV infection (also
known as seropositivity). Washington,
Michigan, Maryland, Virginia, New Mexico, Mississippi and Illinois reported their
findings in this survey. All these states
'''Revision of the CDC Surveillance Case Definition for Acquired Immunodeficiency Syndrome."
MMWR, Vol. 36 No. 15 (1987).
2"AIDS in Correctional Facilities: Issues and Options." National Institute of Justice. Oanuary 1988)
(pre-publication copy).

By far, the most controversial
issue in the nation's prisons is
that of forced or mandatory HIV
testing of prisoners.
did a blind testing of between 500-1000
consecutive incoming prisoners, and results showed a: very low prevalence of
HIV infection. New Mexico, for example, reported having .8% of seropositive
prisoners and Michigan reported less
than 1%.

Testing Policies
Whereas in 1985 the states were
still developing their policies on AIDS in
prison, most now have policies on testing, housing, and staff and inmate education. By far, the" most controversial issue
in the nation's prisons is forced or mandatory HIV testing of prisoners. Medical
experts agree that at the present time
there is no test for AIDS. What is available is the ELISA (Enzyme Linked Immuno-Sorbent Assay) test, designed to
screen donated blood for the presence
of antibodies or exposure to HIV, the
virus believed to cause AIDS. The ELISA
test, along with the confirmatory Western Blot (which tests for presence of antibodies against major proteins that
make up the AIDS virus), are the two
tests used to detect exposure to HIV infection. According to Dr. Robert L.
Cohen, former director of the Montefiore Rikers Island Health Services in
New York City, HIV antibody testing
should not be performed in prison. 3 Diagnosis of AIDS or ARC, says Cohen, is
best made by clinical evaluation, not by
two blood tests that have been plagued
with high rates of false positives and
negatives.
Twenty-nine state corrections systems and the BOP use two ELISA tests
and a confirmatory Western Blot. Seventeen states use one ELISA and the
Western Blot, in accordance with CDC
recommended protocol.
Across-the-board testing of prisoners for HIV antibodies upon entry
into the system is becoming the trend.
Thirteen states (Alabama, Colorado,
Idaho, Iowa, Nebraska, Missouri, Nevada,
New Hampshire, New Mexico, Oklahoma, South Dakota, West Virginia and
Georgia-effective July I, 1988) have
adopted policies of mandatory testing
upon entry. After a controlled period of
entry testing, the Federal Bureau of Prisons now tests all prisoners before they
are released. Arizona, Mississippi, Ore-continued on next page
'''Medical Expert Views Potential for Abuse in
AIDS Screening." NPP JOURNAL. Number 6. (Winter 1985).

SUMMER 1988

7

t

-continued from previous page

gon and Louisiana have bills pending in
their state legislatures which, if passed,
would initiate such testing.
The push toward massive prisoner
testing in the states has come from legislatures and state executive offices
rather than from state department of
corrections officials. A recently completed draft report on AIDS in Oregon's
prison system, written by a committee
comprised of officials from the state department of corrections and the state
health division, opposed mandatory testing of inmates. Similarly, in Mississippi,
Dr. Dave Newton, the state department
of corrections medical director, spoke
out against mandatory testing before the
state legislature's appropriations committee in March 1988.
Illinois has recently required testing
of all couples Wishing to be married. According to Dr. Ronald Shansky, medical
director of the Illinois corrections system, Illinois will test several hundred
prisoners and their outside prospective
spouses each year. Several states, including Wisconsin and Washington, have bills
pending to test prisoners convicted of
sex crimes. In addition, 12 states do
across-the-board testing of incarcerated
pregnant women.
Most states (44 plus the Federal
Bureau of Prisons) test inmates with
symptoms to confirm the diagnosis. Only
27 states and the BOP said they offered
testing for inmates who requested it.

Confidentiality
Confidentiality of medical records
raises important concerns for prisoners
and corrections officials. Almost half of
state departments of corrections reported that they release the HIV status
of the prisoner to the medical staff and
the warden/superintendent of the prison.
At least eight prisons give that information routinely to all line correctional
staff who might come into contact with
the prisoners. Despite a study by the
Nevada Attorney General's office that
wholesale disGlosure of AIDS carriers to
state prison correctional officers would
violate state confidentiality laws, Nevada
recently decided to provide lists of HIV
positive prisoners to corrections officers,
who were threatening to strike over the
issue. 4 Wisconsin's strict guidelines provide that medical information will only
be released on a "need-to-know" basis,
and that "negligent or intentional disclosure of test results may result in civil or
criminal penalties."s
4Las Vegas Review-Jaurnal. Friday, March 25, 1988,
p.2C.
'''AIDS Case and HTLY-III Antibody Test Reporting," State of Wisconsin Department of Health and
Social Services, (May 1986).

8

SUMMER 1988

Increased testing has made the
issue of confidentiality of medical
records an important concern for
prisoners and corrections officials.
According to Dr. Peter A. Selwyn,
of the Albert Einstein School of Medicine, "Of primary importance in any successful testing and notification program
is confidentiality of test results."6 Confidentiality is difficult to guarantee in
prison because of the lack of uniform
confidentiality practices and pressure
from corrections officers for the
information.

Housing
HIV infection is not transmitted
through "casual contact." This fact has
been documented in a study published in
the New England Journal of Medicine
1986, entitled, "Lack of Transmission of
HTLV-III/LAC Infection to Household
Contacts of Patient with AIDS or AIDSRelated Complex with Oral Candidiasis."7 However, most states place prisoners with AIDS and ARC in segregated
housing. At least ten states (including Alabama, California, Colorado, Nevada,
Arizona, Georgia, Oregon, Wisconsin,
New Hampshire and Tennessee) house
seropositive prisoners with AIDS and
ARC inmates in separate prison units.
Fourteen states noted that they kept
prisoners with AIDS, ARC and HIV infection in the general population unless
the prisoners were ill and needed to be
hospitalized. Eleven states reported that
they segregate prisoners with AIDS and
ARC on a case-by-case basis.
Most states reported allowing prisoners with HIV infection and ARC the
same privileges as other prisoners. However, visitation privileges differ even for
these prisoners. Delaware, Montana and
North Dakota do not allow any visits.
Alabama, Alaska, Arizona, Illinois, Maryland, Michigan, New Hampshire, New
Jersey, Rhode Island and West Virginia
allow noncontact visits only. A handful of
the prisons do not allow HIV infected
inmates or prisoners with AIDS and
ARC access to prison recreation equipment or law libraries.

was denied a conjugal visit after being
diagnosed as haVing AIDS. He and his
wife sued the prison on three constitutional claims: the denial of visits violated
their rights to marital privacy, due process, and equal protection under the
law. The court, by a narrow 4-3 margin,
ruled against the prisoner on all issues.s
Five Alabama prisoners have
brought the first system-wide, class action suit to challenge mandatory testing
and segregation of prisoners testing positive to the HIV. The prisoners' suit,
viewed as a natlonwide test case, asks
the court to declare the testing and segregation policies illegal and to prevent
the Alabama Department of Corrections
from enforcing them. The case was filed
on behalf of the prisoners by the National Prison Project, the Southern Prisoners' Defense Committee in Atlanta,
Georgia, and Alabama lawyers Rick Harris, Stephen Glassroth, and Howard
Mandel1. 9
The quality and accessibility of medical care for prisoners with AIDS differs
from state to state. Approximately onefourth of the states said that prisoners
with AIDS received the same medical
care as the rest of the prison population.
A little more than half indicated that
more intensive follow-up care was avail-.
able as needed.
However, as noted in the Spring
1988 NPP JOURNAL, inadequate medical
care within the New York State prison
system is partially to blame for the high
mortality rate of prisoners with AIDS.
According to a study conducted by the
New York State Commission of Correction, prisoners with AIDS live only half
as long as people with AIDS who are
not incarcerated.

Legal Cases
In a recent New York state opinion, the Court of Appeals ruled that
prison officials may refuse to allow a
prisoner with AIDS conjugal visits with
his wife. The prisoner, who had been
enrolled in the Family Reunion Program,

Education of Staff and Inmates
Many of the department of corrections medical administrators said that education of the prisoner population and
the prison staff was underway. (Alabama
was the only state to report that they
conducted no staff education on AIDS.)
According to the survey results, most
states provide educational materials such
as pamphlets and videotapes to all staff.
Education about AIDS has been incorporated into most staff orientation lectures. More than half of the state correctional systems also conduct follow-up
educational sessions on AIDS for the
medical staff.
Drawing upon the National Institute of Justice's AIDS in Correctional Facilities: Issues and Options and the National Sheriffs' Association publication,

'Peter A. Selwyn. M.D., AIDS: What is Now Known,
Albert Einstein College of Medicine, HP Publishing
Co., (1986).
7314 New England Journal of Medicine 344 (1986).

BDoe v. Coughlin, New York Court of Appeals. No.
219. (November 24, 1987).
'Harris. et al. v. Thigpen. et al.• Civil Action No.
CA-87-Y-II09-N.

Health Professionals and a
Preventable Death at Butner
by Steven H. Miles, M.D.
Medical personnel who work in a prison
setting serve two masters: the prison administration which employs them, and their
patients, the prisoners whose health they
are assigned to protect
In the following case, most of the focus
has been on the correctional officer who
placed an Ace bandage over Mr. Harris'
face for punishment purposes, causing his
death by asphyxiation. Dr. Miles, however,
a medical ethicist, narrows the issue to
look at the conduct of the particular physician's assistant who allegedly failed to intervene in the abuse of Mr. Harris, thus

failing to "ground his actions on the prisoner's medical need."
Dr. Miles discusses the professional
standards which are reqUired of physician's
assistants by the Federal Bureau of Prisons
and the lack of any professional sanctions
for behavior such as that allegedly exhibited by the Butner F.C.I. physician's
assistant
The NPP JOURNAL will continue to explore this subject in the Fall issue in a special collection of three articles entitled "Do
No Harm," about the involvement of
health care professionals in executions.

Prison health workers occasionally see
prisoners who have been mistreated or
injured by prison security personnel.
Torture is not systematically practiced in
American prisons, though isolated instances of prisoner abuse by police, or
state or federal prison staff have been
reported. I In March of 1986, a prison
health worker in North Carolina, called

to examine a federal prisoner who was
being mistreated, allegedly failed to intervene in abuse which resulted in the
prisoner's death. The case highlights the
need for administrative and professional
safeguards to prevent prisoner abuse.

Steven Miles, M.D., is the associate director of the Center for Clinical Medical Ethics at the University of Chicago Hospitals.
AIDS: Improving the Response of the Correctional System, some states, like North
Carolina, have developed their own
pamphlets for officers and staff. 'o The
prison medical administrators of Alaska
and Minnesota both volunteered that the
critical task in their prisons is the education of correctional staff to counter
common misconceptions about AIDS.
At least 31 prisons are offering safe
sex education to prisoners. For the most
part, these educational sessions are being
conducted in-house or by the state department of health. However, the District of Columbia utilizes the expertise
of the Whitman-Walker Clinic, a gay
health clinic with a wide range of educational materials about AIDS and safe sex.
Educational materials and information on how to clean needles are not
readily available in the prisons. Only I I
states have incorporated such information into their prisoner education sessions or brochures.

Condoms in Prison
Whether or not the prison system
""AIDS Techniques and Recommendations for
Correctional Officers," North Carolina Department of Corrections Division of Prisons.

'Report 1986, Amnesty International (1986), p. 200;
Al/legotion of Mistreatment in Marion Prison, USA,
Amnesty International (London 1987); T. Murton,
"Prison Doctors," Human Perspective in Medical
Ethics (Buffalo: Prometheus Press, 1972), pp.249265.

should prOVide condoms to prisoners is
still controversial. Only seven states allow condoms: California, Colorado,
Connecticut, Minnesota, Mississippi, New
Mexico and Vermont. Most of these
states specified that condoms were dispensed for conjugal visits only. However,
Vermont's medical staff dispenses condoms to prisoners and Mississippi sells
them in the prisoner commissary. San
Francisco Sheriff Michael Hennessey has
asked the California Attorney General
for permission to distribute condoms in
his county jail to combat the spread of
AIDS.
A majority of states attached copies
of their policies and protocols to the
completed surveys. The Prison Project
will make these available for the cost of
postage and copying. A handful of states
also attached copies of the educational
materials they use.
State corrections departments, as
well as the Bureau of Prisons, have done
a great deal of work since our 1985 survey. Most states have developed policies
in rl'lgard to the care and treatment of
prisoners with AIDS, but there is still a
lack of understanding and uniformity in
the overall approach to AIDS in
prison. 11III

History of the Case
The 3 I-year old federal prisoner. Vinson Harris, was being transferred on
March 4, 1986, from a county jail in
North Carolina to a federal prison in
Pennsylvania. According to news reports, jail guards at the Mecklenburg
County Jail described him as "talkative,
relatively content" and "calm and uncomplaining" on the day of the transfer.
Prisoners report that he was singled out
for abuse by federal correctional officers
supervising the transfer. He was one of
two men forced to wear a hard box on
his wrists designed to prevent him from
reaching the handcuff lock. This box
forces the inmate to hold his arms in a
rigid position, causing pain and swelling
of the hands. During the trip, Harris and
one of four correctional officers argued
over the prisoner's request to urinate.
The prisoner's mouth was covered with
tape and he was chained to the bus seat
by a chain that was wrapped around his
chest and legs.
When the bus arrived at the federal
prison in Butner, North Carolina, prison
officials watched the prisoner urinate before he was again chained to the seat.
Correctional officer Gerry A. Dale, employed at Talladega F.C.1. in Alabama,
was one of the officers accompanying
the prisoners on their trip. Lieutenant
Dale obtained a six-inch wide Ace bandage from inside the prison and then
wrapped the bandage several times
around the prisoner's head and neck,
leaving only a small opening for the
nose. Duct tape was placed over the
bandage. Harris gestured for help and
began to writhe. Although there were
ten prison staff members nearby, none
intervened as prisoners shouted for
them to release Mr. Harris.
Robert Fox, a physician's assistant
(PA), was then summoned by Lt. Dale.
According to witnesses, he examined
the bandaged prisoner and told the
guard that there was "nothing wrong"
with him. The PA did not remove the
Ace bandage but reportedly suggested
that a small hole be made in the tape.
Lt. Dale made a small incision with a
knife. Moments later, the prisoner collapsed. A physician was called, who immediately removed the bandage and began CPR. Mr. Harris was then
transferred to a hospital on "basic life
support systems" and was pronounced
dead a short time later.
The coroner found that the prisoner
had died of homicide by asphyxiation.
There were abrasions on Harris' wrists
from the handcuffs and pressure marks
on his ankles. The coroner believed that;
his nose had also been covered, although
a federal investigation concluded that it
had not been. The indictment later
-continued on next page
SUMMER 1988

• • •- - - - - - - - - - - - - - - - - - - - - - - - - - - - -

IIIIIIIIiIIIJIIIIIIHIIII'. . . .lIIl1!11n.Ifl'liii1lll

!II.

9

iII

-continued from previous page

stated that "substantially" all of the head
and face were covered. The coroner
commented that the prisoner was in
otherwise "excellent physical condition."
In December 1986, a federal grand
jury indicted Officer Gerry Dale on two
felony charges of assault causing injury,
and homicide. In March 1987, Dale pled
guilty to the lesser charge and the homicide charge was dropped. Neither Mr.
Fox nor other prison staff alleged to
have participated in or observed the
death were indicted. A prisoner-witness
who discussed this case with the press
was beaten by correctional officers. Citizens groups, Amnesty International, and
a subcommittee of the House of Representatives judiciary Committee are investigating this death? (Editor's note:
These investigations ended when Officer
Dale was indicted. For further details see
note at end of article.)
Mr. Fox is identified as a PA by prisoners, the Federal Bureau of Prisons, the
state coroner and the prison administration. The Bureau of Prisons has also referred to him as an Assistant Health Services Administrator. He completed an
approved PA training program in 1973
but is not a member of the American or
North Carolina Academy of Physician
Assistants. He is not registered with the
North Carolina Medical Board, which
does not require registration of PAs
who only work in federal facilities. Mr.
Fox is not certified by the National
Commission on the Certification of Physician Assistants. The Bureau of Prisons
will not comment on his certification or
license.
Prevention of Mistreatment

This case raises several issues relating
to the prevention of mistreatment of
prisoners in American jails and prisons:
I) the responsibility of health professionals who become aware of mistreatment,
2) the responsibility of professional organizations to advocate policies that
might deter mistreatment, and 3) the

...

2See S. Jacobs, "Inmate's Mysterious Death Being
Investigated by Authorities," (3/12186), "Two Inmates Say Guard's Action Led to Death," (4/27/
86), "Inmates Give Versions of How Vinson Harris
Died on Prison Bus," (8/26/86), "Officials Given
Permission to Exhume Inmate's Body," (7/29/86),
"Case of Inmate Death Moves to Grand Jury,"
(8/24/86), "Ace Bandage Gag Killed Prisoner, Medical Examiner Rules," (3/26/86), "Federal Prison
Guard Indicted in Inmate's Death," (12119/86),
"House Panel Investigating Death of Inmate on
Bus," (9/11/86), "Gagged Prisoner's Sister Questions Authorities' Silence About Death," (5/17/86),
Raleigh, Nonh Corolina News and Observer. See also
E. Bunker, "The Lynching of Vinson Harris," Nation
(5/17/86); Editor, "Follow-up,", Nation (8/26/86);
and Medical Examiner of Nonh Carolina: Report of

Autopsy and Investigation on Decedent Vinson P. Harris (March 5, 1986).

10

SUMMER 1988

need for prison policies to decrease the
likelihood of mistreatment.
Health Professional Responsibility

Prison health care is a form of occupational medicine in that its practitioners
are accountable both to patients and to
their employers-the prison administration. Despite this dual accountability, occupational health professionals must give
"highest priority" to their patient's welfare. 3 Thus, prison health professionals
should be independent from the prison's
security or penal functions. 4 In so doing,
they must be prepared to ground their
actions solely on the prisoner's medical
need. Major American medical associations, for example, have said that health
professionals should not perform rectal
or vaginal searches for contraband unless
the search is medically indicated.
Prison health professionals have
unique access to persons who are vulnerable to mistreatment. Amnesty International estimates that a third of the
world's countries systematically mistreat
or torture prisoners. S Though systematic
abuses are not practiced in the United
States, isolated instances of mistreatment
by police or prison staff are reported. 6
Health professional involvement in these
abuses is rare. Misuse of psychiatric
drugs has, at least one instance, contributed to an inmate's death? In Arkansas,
in the 1950s, a physician designed a device to administer electric shocks to
prisoners.a
Such mistreatment violates basic tenets of medical ethics: the professional
duty to do no harm, to respect patients'
dignity, and to serve patients' welfare
regardless of race or pol!tical status.
Health professionals may not participate
in mistreatment, certify prisoners as fit
for such punishment, provide instruments for abuse, or fail to record injuries that are observed in the course of
providing medical care. 9 Health professionals' expertise in assessing the symptoms and signs of physical or mental injury is a unique expertise that, if used,
can interrupt or prevent such abuses.
'A.R. Jonsen, M. Siegler, W.J. Winslade, "Clinical
Ethics," American Society for Occupational Medicine:
Code of Ethics, 1st ed. (New York: Macmillan Publishing Company, 1982), p. 175.

'Standards for Health Services in Prisons, National
Commission on Correctional Health Care (Chicago, 111., January 1987).
sThe Breaking of Bodies and Minds, American Association for the Advancement of Science, E. Stover
and E.O. Nightingale, eds. (New York: W.H. Freeman Co., 1985).
'Amnesty International, op.cit
7E. Kaufman, "The Violation of Psychiatric Standards of Care in Prisons," American Journal of Psychiatry 137 (1980), pp.566-570.
"T.Murton, "Prison Doctors,", op.cit
•American Association for the Advancement of Science, op.cit

In this case, as alleged, the PA, Mr.
Fox, did not fulfill his responsibility for
the prisoner's health. While examining a
patient being mistreated, witnesses report that he did not remove an obviously dangerous and misused medical
device, and that he delivered an opinion
that the patient's health would allow the
mistreatment to continue. Such actions
would directly violate codes of professional conduct endorsed by the World
Medical Association,1O the United Nations, II and other American professional
•
bodies. 12
Health Professional Organizations

PhYSician's assistants are a major
group of prison health care providers. 13
In support of their profession and to decrease the possibility of these abuses, PA
professional bodies might: I) endorse
codes of conduct for such situations, 2)
address such situations in professional
training, and 3) establish procedures to
review the certification, licensure, or
professional association of a PA collaborating in the abuse of prisoners.
Professional Codes. Professional
oaths and codes have long been used to
affirm practitioners' fundamental responsibilities. Anti-torture codes summarize
health professionals' duties to prisoners .
and have supported physicians in countries where torture is systematically
practiced. '4 The American Medical Association has endorsed the World Medical
Association's Declaration of Tokyo,
which states that physicians should not
condone or participate in torture, provide the instruments of torture, or be
present during torture. It further provides that the physicians must have complete independence in deciding on the
care of a person for whom they are
medically responsible.

'''World Medical Association, "Declaration of Tokyo: Guidelines for Medical Doctors Concerning
Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment in Retaliation to Detention and Imprisonment," JAMA 255 (1986), p.
2800.
"United Nations, "Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment," The Breaking of Bodies and
Minds, E. Stover and E.O. Nightingale, eds. (New
York: W.H. Freeman Co., 1985), pp.254-270.
'2American Medical Association House of Delegates Oune 19, 1986);J.H. Sammons, "Medical Ethics and the Issue of Torture," JAMA 255(20)
(1986), pp.2798-2799; see also Kaufman, op.cit.
I3J.F. Cawley, J.E. Ott, C.A. Deatley, "The Future
for Physician Assistants," Ann. Int Med. 98 (1983),
pp.993-997.
"E.O. Nightingale, E. Stover, "A Question of Conscience. Physicians in Defense of Human Rights,"
JAMA 256(20) (May 23/30, 1986), pp.2794-2797; E.
Stover, E.O. Nightingale, "The Medical Profession
and the Prevention of Torture," NEJM 313 (October 24, 1986), pp.1102-1104.

Ethics Education. Stover and Nightingale, writing in the journal of the American Medical Association, and a recent international congress recommend that
medical schools and health care facilities
should expand medical ethics education
to address professional duties in situations where medical expertise is misused. ls It is possible that such education
might help a prison health worker to
more clearly recognize a duty to intervene to stop mistreatment, such as in
the reported case.
Licensing. Professional bodies might
hold practitioners accountable by reviewing or revoking the certification, licensure, or professional affiliation of
those who fail to adhere to explicit standards of professional conduct. If required
of federal prison health workers, loss of
certification or licensure could remove a
practitioner from practice and would
emphasize to health professionals and
their employers the importance of these
standards. The possibility of such sanctions would back up prison health staff
confronted with such situations. Knowing that health workers were obliged to
intervene or report such abuses might
deter correctional officers from inflicting
corporal punishment. It is possible that
the federal prison system's use of an uncertified, unlicensed, and professionally
unaffiliated PA contributed to his alleged
reluctance to intervene in this case. The
fact that federal prison health care staff
do not need state licensure was interpreted by the North Carolina Medical
Board to mean that it had no standing
to intervene in this case.
Prison Health Care Regulations
The National Commission on Correctional Health Care (NCCHC), representing the American health care professions, has recommended standards that
have improved prison health care. 16 The
expert interest of bodies like the
NCCHC is especially important in view
of the reluctance of American courts to
interfere with prison health care. '7
Professional gr~ups like the Colegio
Medico de Chile, the Medical Association of South Africa, and Amnesty International, have advocated prison policies
to improve prison staff supervision and
accountability and to improve access for
independent medical staff to decrease
""The Medical Profession and the Prevention of
Torture," op.cit; "Proceedings of the International
Meetings on Doctors, Ethics, and Torture," Danish
Medical Bulletin 34(4) (1987), pp.185-216.
16K.M. Sandrick, "Upgrading Health Services in the
Nation's Jails," QRB 7 (1981), pp.22-25; B.J. Anno,
"The Role of Organized Medicine in Correctional
Health Care," JAMA 247 (1982), pp.2923-2925.
17p. Gunby, "Health Care Reforms Still Needed in
the Nation's Prisons," JAMA 245(3) (1981),
pp.211-214; Sandrick, op.cit.

torture in prisons.
The NCCHC has issued 71 voluntary
standards for prison health practice.
These standards do not address the duty
to report or intervene in torture but do
prohibit medical staff from participating
in the disciplinary use of restraints.
These standards should be reconsidered
in light of this case and recent literature
on health professionals and abuse of detainees. Revised standards might address
health worker training and the design of
policies supporting staff intervention in
mistreatment. Such standards might improve the care of prisoners and would
also support American health professionals who are advocating similar policies to
prevent comparable, though more widespread, abuses in other nations. IS
The Bureau of Prisons is at variance
with other federal agencies and the laws
of many states in its use of uncertified
and unlicensed PAs. State regulations
typically require that a PA graduate
from an accredited training program,
successfully complete the NCCPA certifying examination, and be directly supervised by a physician. The Veterans Administration, Coast Guard, and Defense
Department have adopted similar standards for PAs within their facilities. Inadequate federal standards may have contributed to this death if they permitted
employment of a worker who did not
meet the degree of professionalism and
accountability ordinarily found in certified and licensed PAs.
Conclusion
Health professional participation in the
mistreatment of prisoners is unethical.
When physicians, nurses, or physician assistants observe mistreatment, they are
professionally obliged to intervene and
to act to prevent future occurrences.
Professional associations should promote
standards for conduct and training to address this important issue. Government
agencies, prison administrations, and
professional groups should devise means
to hold practitioners accountable to
these standards. III

The factual allegations in Dr. Miles' article are based, in large part, on news accounts in a series written by Sally jacobs, a
reporter for the Raleigh, North Carolina
News Observer. jacobs, now reporting for
the Boston Globe, won a George Polk
award for the Vinson Harris series.
In june of 1987, Lt Dale was sentenced
to nine years in federal prison after being
convicted of assault resulting in serious
bodily injury within a U.S. jurisdiction.
Mr. Fox, the PA, is still working at ButI"See Nightingale and Stover, "A Question of Conscience," op.cit; and Stover and Nightingale, "The
Medical Profession and the Prevention of Torture," op.cit

ner, EC/. In September of 1987, he was
reassigned from his PA duties to serve as
community programs coordinator, a nonmedical position.
The family of Vinson Harris has filed
suit against the Federal government under
the Federal Tort Claims act
The Federal Bureau

of Prisons responded

to our request>(or comment on Dr. Miles'

article, by saying:
Dear Ms. Elvin:
As you may be aware, the family of
Mr. Harris has filed suit regarding his
death. Under Department of Justice
gUidelines, the Bureau of Prisons cannot
comment specifically on a matter currently in litigation.
The standards for government employment as a physician's assistant are
set by the Office of Personnel Management (OPM). OPM requires that an applicant must have successfully completed
a course of study of at least twelve
months, including clinical training or preceptorship to be considered for employment by the federal government. The
course of study or training must be approved by a nationally recognized
professional medical body such as the
American Medical Association or the Association of American Medical Colleges,
or by a panel of physicians established by
a federal agency for this purpose. The
physician's asssistant met the reqUired
standards for employment. There have
been no changes in employment policies
regarding phYSician's assistants since, or
as a result of, the death of Mr. Harris.
We note, in reviewing the article
which you supplied, that there are several factual errors, particularly in regard
to the sequence of events surrounding
the death of Mr. Harris. As mentioned
above, the appropriate forum for matters in litigation must be the court,
which will examine the issues closely and
make a final determination.
The Bureau of Prisons has a strong
commitment to the provision of quality
health care for inmates. Any death which
occurs in our system is of concern to us.
We concur with the author's conclusion
calling for professional standards for the
treatment of inmates. We believe that
the policies of the Bureau of Prisons and
the accreditation standards to which we
voluntarily submit are, and will continue
to be, appropriate to insure the maintenance of a standard of care commensurate with that available in the community
at large.
Thank you for your letter and for the
opportunity to comment.
Wallace H. Cheney
Deputy Assistant Director Health
Services Division
Federal Bureau of Prisons

+

SUMMER 1988

II

NPP Lawyer Ed Koren:
Attica Started It All
Betsy Bernat
Ed Koren is holding up a copy of a
Supreme Court brief. "We have Warren
Burger to thank for the orange cover,"
he explains. "It was his idea to color
code the covers."
The brief is an opposition to certiorari, which Koren recently filed for the
National Prison Project in Abbott v.
Meese.' Sometimes he refers to it as
jarndyce v. jarndyce, the interminable
lawsuit in Dickens' Bleak House. And
why not? He's been working on Abbott
as long as he's worked at the Prison
Project: fourteen years.
Add to that the four years he
worked in prisoners' rights before joining the Project and you've got a career
that spans 18 years. Not too many people in this field can make that claim.
Since the early 1970s, when his work focused on the New York State prison
system and the post-Attica defense effort, his commitment to inmate rights
has remained unshaken.
What experiences kindle such a
strong and long-term commitment? In a
series of interviews with the JOURNAL,
Koren shed some light on this question.
In doing so, he offered a personal tour
of two decades of prisoners' rights
history.
The Early Years in Buffalo
Koren was graduated from the
State University of New York at Buffalo
Law School in 1968 and went to work
as a lawyer for the Niagara Chapter of
the New York Civil Liberties Union.
The majority of his clients there were
students seeking representation before
student disciplinary boards and in city
court.
When Koren had been at the CLU
.for nearly two years, he was contacted
by Herman SGhwartz, one of his professors at .law school. Schwartz had just retur:ned to Buffalo after a year in Ann Arbor, and "one of the first things he
wanted to do was get involved in prisoners' rights," Koren explains. "He
wanted to bring the Constitution to the
New York State prison system."
With the support of Aryeh Neier
and the New York Civil Liberties Union,
Schwartz established the Prisoner Rights
Project of the ACLU. Koren volunteered to join his staff, although he says

Betsy Bernat is the editorial assistant for
the NPP JOURNAL
'See 824 F.2d 1166 (D.C. Cir. 1987).
12 SUMMER 1988

"One word-Attica-became the
code word for the kinds of
problems we've seen with prisons
in America."
that at that time he knew "zero" about
prisons and prisoners' rights.
'The first thing we did was drive
to Auburn State Prison," he says, "and
we arrived during a demonstration in
the yard by the activist prisoners." It
was his first encounter with prisoners,
and he was surprised to find many of
them to be politically active. "It was a
revelation," he says. "I hadn't assumed
that what was going on outside of the
prison was a factor of what was going
on inside, but it made a lot of sense."
After several weeks of interviews,
Schwartz and Koren were close to
bringing suit against Auburn. Before they
could file anything though, their main
plaintiffs were shipped off to the segregation unit at Attica state prison. "What
they'd done, which was typical," Koren
explains, "was transfer the problems.
They'd transferred the more politically
aware, organized people to Attica." Koren and Schwartz challenged these punitive transfers with a series of lawsuits.
The JOURNAL asked Schwartz

about working with Koren in those early
years. "He worked for nothing at all,
bread and water," he recalls. "He was,
and still is, a tremendous tough bird dog
when digging up what happened,
tougher with prison administrators than
even I. He wouldn't take any stonewalling from them."
Attica Explbdes
"At that time," Koren explains,
"the old school was running the system.
All they knew was that they had to
keep the lid on, and they weren't doing
a very good job of it.
"We felt that we had to open up
these places. We knew that litigation
would be here today, gone tomorrow.
In order to be successful, we had to
make prisons into fishbowls: the brutality
and misconduct that had been going on
for many years could not survive the
light of day. That was our strategy: freedom of expression, contact with the
outside world." To that end, he and
Schwartz filed a series of actions involving media contact with inmates. Eventually, Schwartz argued this issue in the
Supreme Court [Pell v. Procunier, 417
U.S. 817 (1974)]. jackson v. McGinnis involved the rights of prisoners to receive
books, magazines and publications [later.
decided as jackson v. Ward, 458 F.Supp.
546 (W.D. N.Y. 1978)].
"In August of 1971," Koren says,
"Commissioner Oswald came to Attica
and made a speech that was broadcast
over the public address system, saying
that they would bring improvements.
They wouldn't be abrupt, but there
would be changes."

Oswald's assurances weren't
enough for the inmates. On September
9, 1971, Attica fell under inmate seige.
They gained access to "Times Square,"
the prison's control center, and took
over virtually the entire prison.
On September I3, state troopers
stormed Attica, seizing control from the
inmates. Thirty-nine people, including
ten hostages, were killed in just two
minutes of gunfire.
"We had heard that the troopers
were making ready to go in there and
blow people away," Koren says. '''This is
our time,' they were saying. Racism and
anti-prisoner feelings came together under the mantle of reasserting governmental authority."
When the troopers entered the
prison, "they shot at anything that
moved," he continues. "Afterwards, we
finally got access to the prisoners in the
hospitals. I vividly remember going to
~
this large ward, 30 to 40 prisoners
-.
swathed in bandages and in traction. It
--------------was a wartime scene."
"Attica was really my trial by fire
Before the inmates were returned
into prisons and prisoners'
to their cells, they were made to run
naked over glass, passing through gauntrights."
lets of correctional officers and state
guard in Attica's control center the first
troopers who beat them with sticks,
day of the uprising.
clubs and gun butts. An action was
brought by Schwartz and Koren, along
Clark, now in private practice in
New York, discussed the working cliwith the Prisoners' Rights Project of the
mate when trial began in 1975. ''The
New York legal Aid Society and other
groups, to prevent further retaliation.
mood was very much like the weather,
cold and hostile. Even though it was
They also sought to gain access to their
clients which the authorities had denied
over three years after the prison uprising, the hostility, not just in law enforcethem. In spite of an order for access
signed by Judge John Curtin, prison aument-which was intense--but in the
thorities refused the lawyers entry.
community as well generally remained
extremely high. It was not only the
Koren sums up the Attica experience with a dry laugh. "That was really
bloodiest episode among Americans in
this century on U.S. soil, it was the most
my trial by fire into prisons and prisoners' rights."2
traumatic event, certainly, in Wyoming
County's history."
The Attica Defense Effort
He adds that, "Ed was incredibly
The next few years saw the growth good. He's so committed, so low-key
but perservering, and so thoroughly supof a vigorous defense effort on behalf of
those inmates who had been indicted for portive of everybody. No person ever
crimes which occurred during the uprishad a better champion or friend than Ed
ing. It was a cause that attracted people
Koren."
from across the country, many of whom
Attica's most important legacy,
continue to be part of an active civil and though, was its national impact. "What
prisoners' rights network today.
we've seen over the last fifteen years is
a direct result of Attica," Koren points
Schwartz introduced Koren to
out. "It raised people's consciousness. It
Ramsey Clark, Attorney General under
made one word-Attica-a code word
President lyndon Johnson. Clark had
for the kinds of problems we've seen
come to Buffalo from Harrisburg where
he had been working defending the Ber- with prisons in America. When people
think of prisons, they think of Attica.
rigan brothers against the government's
"You couldn't walk down a street
conspiracy charges. For over two years
he and Koren worked on the defense of in New York City without seeing graffiti
a prisoner who was accused of killing a
on the wall that said simply 'ATTICA' or
'ATTICA LIVES.' It's not just about prisons, it's one of those institutions that
2A detailed account of the Attica uprising can be
people feel oppressed by. You just had
found in Attica: The Official Report of the New York
to mention Attica and people knew
State Special Commission on Attica, (Praeger Publishers, 1972).
what it meant."

3

By 1974, the National Prison Project had opened its doors in Washington,
D.C., under the direction of Alvin J.
Bronstein. Koren was commuting to
Washington on weekends to be with his
wife, and so began working for the Project part-time. His current work on the .
Abbott case dates back to this point.

The Bureaucratic Life
In 1975, Herman Schwartz was appointed chairman of the New York
State Commission on Corrections and
Koren joined his staff in Albany.
"We became bureaucrats," he says,
cracking a grin. "We were on the 21 st
floor of the tallest office building in Albany. On one side was the Hudson River
and Massachusetts and to the South you
could see the Catskills. It was another
world."
Schwartz assembled a group of
people, including Scott Christiansen, Dan
Pachoda and John Seymour, and "proceeded to turn the place upside down."
They set to work developing a number
of written correctional standards and
policies that are still on the books today.
They also obtained a commutation for
Martin Sostre, an activist prisoner best
known for the segregation case Sostre v.
McGinnis. 3

The stint at the Commission came
to an end nine months later, however,
when the New York State Senate refused to accept Schwartz's nomination.
When Schwartz left, Koren did also,
along with a number of other staffmembers. "We were booted out, but we
wore that as a badge of honor," Koren
says.
-continued on next page
3442 F.2d 178 (2d Cir. 1971).

SUMMER 1988

13

-continued from previous page

The National Prison Project
In 1976, after Koren left the Commission, he joined the staff of the Prison
Project full time.
At this point he had been involved
in prisoners' rights for five years. When
asked why he decided at that time to
stay in the field, he replied, "It had gotten in my blood. It's a wonderful community of people, interesting issues. It
was an opportunity to work with
friends, and it wasn't that far away from
the Sixties."
AI Bronstein, Executive Director of
the NPP since it began, stated, "Ed's
long-time association with the Prison
Project has played a substantial role in
creating the stability and excellence of
our efforts."
Matt Myers, a former NPP attorney, told the JOURNAL that "Ed has a
quality that almost nobody else has: he

seems incapable of burn-out. I hold him
in awe for that."
Is Ed Koren really "incapable of
burn-out?" Is he going to be in this fight
five years, ten years from now? If not,
he probably won't have strayed very far.
When asked how he imagines himself retired, he replies, "I don't know. I'll
probably volunteer to work for a
whacko underdog outfit. I'd find something, or something would find me.
There's plenty to do out there."
As for what he's accomplished so
far, John Boston of the Prisoners' Rights
Project of the Legal Aid Society,
summed it up best. "More than any of
us," he said, "Ed Koren is somebody
who's been in for the long haul. He is
the leading survivor of prisoners' rights.
It may well be that Ed is the oldest tree
in the forest-God only knows what's
nesting in his branches--and he casts an
enormous amount of shade." III

For The Record
• Judy Greenspan, a paralegal, is a new
addition to the Prison Project staff.
Greenspan, former national logistics coordinator for the October I I National
March on Washington for Lesbian and
Gay Rights and a long-time activist in
the movements for social justice and
prisoners' rights, will focus on prisoners
and AIDS. She has completed the Prison
Project's second survey on the incidence
of AIDS in the nation's prisons, thanks
to a grant from the Public Welfare
Foundation. She will be updating the
Project's "Resource Bibliography on
AIDS Among Prisoners," and will work
with NPP attorney Alexa Freeman on
upcoming litigation involving discrimination against prisoners with AIDS.
• The National Institute of Corrections (NIC) is pleased to join with the
Robert J. Kutak Foundation in announcing a new sef'ies, Research in Corrections, which will provide high-quality
summaries of research for corrections
administrators and practitioners. Each
monograph conveys research findings on
selected topics, and includes the reactions of correctional practitioners to issues which arise in real-life agency
operations.
The first monograph is entitled
"Statistical Prediction in Corrections,"
written by Dr. Todd Clear, who presents a critical assessment of the uses of
statistical prediction. Billy Wasson, director of the Marion County, Oregon, Department of Corrections, and James
Rowland, director of the California Department of Corrections, highlight the
14 SUMMER 1988

significance of those findings to agency
operations. Persons wishing to receive a
complimentary copy of the publication
should contact the NIC Information
Center, 1790 30th Street, Suite I30,
Boulder, CO 8030 I.
Research in Corrections is edited by Joan Petersilia at the RAND
Corporation, and will be published three
to four times a year. The remaining issues planned for 1988 will address the
relationship between diet and criminal
behavior, pretrial release, and correctional costs.
Articles are now being commissioned for 1989, and anyone wishing to
contribute research papers or serve as
practitioner respondents should contact
Joan Petersilia, RAND, 1700 Main
Street, Santa Monica, CA 90406.
In our last issue of the NPP JOUR•
NAL, we advertised the cost of the new
edition of the ACLU handbook The
Rights of Prisoners as $6.95, its bookstore
cost. To order the handbook directly,
please send a check or money order for
$7.95 ($6.95 plus $1.00 postage and handling) to the ACLU, 132 West 43rd
Street, New York, N.Y. 10036. The
book is available to prisoners free of
cost.
• The National Sheriffs' Association
(NSA) has announced publication of Food
Service in jails, a completely new and revised handbook for the jail administrator
and food service manager, who are responsible for every aspect of their facility's food service operation.

Designed for both new and experienced correctional food service professionals, the comprehensive book provides practical, step-by-step gUidelines
for meeting the goal of today's critical
food service operation: to provide three
balanced, nutritionally adequate meals a
day, prepared under sanitary conditions,
within the e~ablished budget.
Food Service in jails is an indispensable resource for today's food service
professional, providing detailed gUidelines
for maintaining the highest nutritional,
sanitation, and safety standards. Specific
topics include:
• Supervision and training for both
food service staff and inmate workers;
• Security requirements for the
jail's food service;
• Effectiye food purchasing;
• Receipt, inspection, and storage
of food;
• Sanitation and safety;
• Menu planning for nutrition and
appeal;
• Equipment trends for today's
food service.
Cycle menus are included as well,
based on the Recommended Dietary Allowances (RDAs) established by the
Food and Nutrition Board of the National Academy of Sciences, National Research Council.
Food Service in jails is available for
$15.00 from: The National Sheriffs' Association, 1450 Duke Street, Alexandria,
VA 22314. For further information,
please call 703/836-7827 or 800/4247827.
• "The Role of Measurement in Public
Policy Development" is the theme of a
two and one-half day conference sponsored by the Criminal Justice Statistics
Association (CjSA), in cooperation with
the Bureau of Justice Statistics. The conference will draw on the research and
experience of state Statistical Analysis
Centers and key government decisionmakers to examine issues concerning
measurement, such as: What are the incidences of bias crime, domestic violence, and white collar crime? How is
the impact of these crimes measured?
What information is critical for developing effective policy in these areas? What
is the current state of prison and jail
overcrowding?; the impact of intermediate sanctions?; international perspectives
on sanctioning policy? What is the role
of the public attitude survey in policy
development?
Invited speakers include Georgette
Bennett, sociologist and author of Crime
Warps: The Future of Crime in America;

Dr. Charles M. Friel, Criminal Justice
Center, Sam Houston State University;
Don Gottfredson, Dean, Temple University; Judy Greene, Director of Court

Programs, Vera Institute of justice; and
Sam Saxton, President, American jail Association. The conference will be held
August 23-26, 1988 at the Washington
Hilton and Towers in Washington, D.C.
For further information, contact Adele
Ellis at CjSA, 444 North Capitol Street,
N.W., Suite 606, Washington, D.C.
2000 I; 2021624-8560.
•
PEN American Center sponsors annual writing awards for prisoners. Anyone incarcerated in a federal, state or
county prison, between january I, 1988
and September I, 1988, is eligible to
enter.
Prizes of $1 00, $50 and $25 are
awarded for first, second and third
places in each of the following
categories:

Poetry-Poem not to exceed 100
lines; fiction-Short story or excerpt
from a longer piece, not to exceed
5,000 words; Non-fiction-Essay
(journalistic, personal or literary) not to
exceed 5,000 words; Drama-Playscript not to exceed 5,000 words.
Entries for the annual competition
may be submitted between january 1
and September I, 1988. Winners will be
announced late in the Fall.
Selected winning entries will be
published by The Fortune Society in The

Fortune News.
Manuscripts should be in English
only. They should be typewritten whenever possible, or legibly handwritten on
8 1/2 x I I inch paper.
Authors may not submit more than
one entry in each category.

Authors are urged to keep copies
of each manuscript sent, because entries
cannot be returned. Unclaimed poetry
manuscripts are given to the Cathedral
of St. john the Divine in New York for
display at their Poetry Wall, where they
are read and admired by many visitors
each year.
Only unpublished manuscripts will
be considered, with the exception of
pieces that have appeared in publications
for the prison population only.
Winners and all Honorable Mentions in each category will receive a
one-year subscript~on to American Poetry

Review.
Send entries to: PEN Writing
Awards for Prisoners, 568 Broadway,
New York, NY 10012. ATIN: Leonie
Garrigues.

ated mothers. health car~, 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 citai 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.

~.

QTY. COST

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

Fill out and send with check payable to
The National Prison Project
1616 P Street, NW
Washington, D.C. 20036

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. Ist edition, February
1984. 180 pages. paperback,
$15 prepaid from NPP.

QTY. COST

NAME

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 Litigation Status
Report gives a state-by-state
listing of cases involVing jail
conditions in both federal and
state courts. The Report covers unpublished opinions, consent decrees and cases in
progress as well as published
decisions. The Report is the
first nation-wide compilation
of litigation involving jails. It
will be updated regularly by
the National Jail Project. 1st
Edition, published September
1985. $15 prepaid from NJP.
-'--

_

ADDRESS

_

CITY, STATE, ZIP

_

SUMMER 1988

15

The following are major developments in the Prison Project's litigation
program since January I, 1988. 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. We received a favorable
opinion from the Court of Appeals. In
January, the Solicitor General filed a petition for certiorari in the Supreme
Court. The· Prison Project filed its opposition on April I, 1988. Certiorari was·
granted April 25, 1988.
Cody v. Hillard-This suit challenges
conditions at the South Dakota State
Penitentiary. In response to an unfavorable decision by the Eighth Circuit Court
on the issue of overcrowding, the Prison
Project filed a petition for a writ of certiorari in early January. The Supreme
Court has since denied that petition.
Palmigianov. DiPrete-This case
challenges conditions in the Rhode Island
state prison system. The special master
made a presentation at a January status
conference which demonstrated general
compliance except for some medical
care issues. It was agreed that the court
would enter a new order which would
discharge the special master and remove
the court from active monitoring.

u.s. v. Michigan/Knop v. JohnsonThis is a statewide Michigan prison conditions case. In Knop, the Sixth Circuit
denied a stay of the order requiring the
defendants to prepare remedial plans
and dismissed the defendants' attempted
appeal of the order as premature. At
the beginning of March 1988, the trial
court held a hearing on the parties' remedial plan pr:?posals and in May issued
an order essentially granting all our requested remedies. In U.S. v. Michigan,
the trial court held a compliance hearing
National Prison Project
American Civil Liberties Union Foundation
1616 P Street, NW, Suite 340
Washington, D.C. 20036
(202) 331-0500

16

SUMMER 1988

on overcrowding, sanitation and fire
safety issues and will be issuing some
further remedial orders.
Maryland Jails: Hendrickson v.
Welch, Macer v. DiNisio, Dotson v.
Satterfield-These cases, filed by the
Prison Project and the Maryland ACLU,
challenge conditions and practices in
three jails on Maryland's Eastern Shore.
In Hendrickson, which challenges conditions at the Wicomico County Jail, a settlement was reached just two days before the scheduled hearing. It provides
for improvement in living conditions and
the implementation of a pretrial release
program. A preliminary injunction hearing on First Amendment issues was held
in Dotson, the case challenging conditions
in the Dorchester County Jail.
Inmates of Occoquan v• Barry-ThiS
case seeks to improve conditions and relieve overcrowding at the District of
Columbia's Occoquan facility. The case
was argued in the Court of Appeals on
January 14, 1988, and remanded to the
trial court in late April. A petition for
rehearing en banc was filed in early May.
Duran v. Carruthers--This case challenges conditions in the New Mexico
state prison system. In February 1988,
we received a favorable decision denying
the defendants' motion to vacate or
modify the consent decree on Eleventh
Amendment grounds. The defendants
appealed the decision in March. We also
received a favorable decision on attorneys' fees for compliance work and then
successfully moved to dismiss defendants'
appeal of the decision. They have since
filed a petition for certiorari in the Supreme Court. We filed a brief in opposition in March.
Nelson v. Leeke-This case challenges
overcrowding and conditions in the
South Carolina prison system. In January
1988, the district court denied the de-

fendants' motion to modify the consent
decree and ordered them to reduce the
population at cer,tain facilities. The order
was stayed by the Court of Appeals
pending an expedited appeal by the defendants. The case was argued in the
Court of Appeals in February and an unfavorable decision was handed down on
April 27. A pet4tion for rehearing en
banc was filed in early May and was denied in late May.
Harris v. Thigpen-This is a new case
which challenges the policy of the Alabama Department of Corrections to test
all prisoners for HIV antibodies. Originally filed pro se, the case claims that the
tests subject those inmates who test
positive to segregation in special AIDS
units and other discriminating treatment.
The Prison Project, along with local
counsel, filed an amended complaint in
March seeking injunctive and declaratory
relief. Class certification is pending.
Plaintiffs are contesting the efforts of defendants to consolidate Harris with several other prisoner cases. A hearing was.
held on all open motions in May.
Baraldini v. Meese-In this new case,
the Prison Project, along with several
co-counsel, represents inmates of the
High Security Unit in the Federal Penitentiary at Lexington, Kentucky. The
case, filed on March 22, 1988, alleges
that the Federal Bureau of Prisons assigned the plaintiffs to the unit in violation of their First Amendment right to
hold certain beliefs or ideologies; their
Eighth Amendment right to be free·
from cruel and unusual punishment; and
their Fifth Amendment rights to due
process and equal protection. In March,
the plaintiffs filed a motion for preliminary injunction and a motion to expedite
discovery. A hearing was held on the
preliminary injunction motion in early
June. IlIIII

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