INSIDE . ..
•

AIDS Policies Challenged
Alabama Lawsuit Tests Segregation Practices............................ p.8

•

INDEX
Four Years of JOURNAL
Articles ;

•

p.9

Lexington High Security
Unit
Judge Rules: ..... a shameful reflection omthe Bureau's
administration."
p.19

• Juveniles in Jails
Some States Still Violating Laws
On RemovaL
p.21
•

Mariel C'ubans
Still Cruelly and Unfairly
Treated by BOP

p.24

The American public, more enthusiastic than ever in its demand for capital punishment for convicted murderers, has nonetheless demonstrated a certain discomfort
with the agonizing details of death in the
gas chamber and the electric chair. A desire to "euphemize the deed," as John
Conrad expressed it, has led 17 states to
authorize execution by lethal injection.
Legislators seeking to avoid the appearance of primitive brutality are eager to
blunt opposition to the death penalty by
approving this new technology.
The growing acceptance of lethal injection as a more "humane" method of
killing death-sentenced prisoners, however,
has changed the dialogue about capital
punishment While physicians have always
been involved in the administration of the
death penalty, advising on the best method
to ensure death and pronouncing death,
the lethal injection method more directly
involves medicine in deliberate killing. In
an influential article which appeared in
The New England Journal of Medicine in
1980, William]. Curran, ].0., S.M. Hyg.
and Ward Casscells, M.D., argued that lethal injection "presents the most serious
and intimate challenge in modern American history to active medical participation
in state-ordered killing of human beings
... [since] this procedure requires the direct application of biomedical knowledge
and skills in a corruption and exploitation
of the healing" profession'S role in society."
Most states which have authorized
the lethal injection method of execution
use what one corrections official calls "the
firing squad approach." Volunteer medical
technicians stand behind a barrier, and
each injects a substance into a tube running through the barrier and into the prisoner's body. One of the substances is lethal; none of the volunteers knows who
administers the lethal dose.
While the doctor does not personally
inject the lethal dose into the prisoner,
does he or she violate medical ethics by
merely monitoring the death process? The
writer Alexander Solzhenitsyn described the
Soviet prison camp doctor in The Gulag
Archipelago as the interrogator's and the
2

FALL 1988

executioner's right hand man. "The beaten
prisoner would come to on the floor only to
hear the doctor's voice: you can continue,
the pulse is normal."
"The medical presence," wrote Casscells and Curran, "gives the impression of
moral sanction by the healing professions.
To be both present and performing a monitoring role is worse. It is similar to the
physician who examines the prisoner intermittently during torture or prolonged interrogation and pronounces him physically fit
to continue his ordeal. The 'continuous intravenous injection' ends only when the
monitoring physician pronounces the condemned prisoner dead. The physician then
becomes the instrument, the order, to stop
the lethal action itself. There is no other
way to describe this physician's role but as
that of an active participant, a key human
participant, in the execution."
There is reason to fear that death by
lethal injection may not be as swift and
painless as some would have us believe.
The drugs used to sedate, anesthetize, and
then paralyze have never been tested for
this purpose. The prisoner may die in pain,
aware of suffocating. Ironically, the FDA
has insisted on proof of the safety and effectiveness of drugs used by veterinarians
to kill domestic animals, to ensure they
provide painless death. No such proof is

required for the legalized killing of
humans.
Newsweek magazine reported that
James Autry, executed in 1984 by lethal
injection in Texas, "took at least ten minutes to die and throughout much of that
time was conscious, moving about and
complaining of pain." Stephen Morin was
killed by lethal injection in Texas the following year, <Jnd technicians were reported
to have taken more than 40 minutes
searching the prisoner's limbs for a suitable vein in which to insert the needle.
The larger",question, of course, is that
of the wisdom dnd morality of state-sanctioned killing, not the technical means by
which it is accomplished. Why has a
profession "dedicated to preserving life
when there is hope of doing so" silently
accepted capital punishment by any
means, whether its members were directly
involved or not?
In this issue of the JOURNAL, we present articles by two corrections medical
professionals, Dr. Armond Start and Dr.
Kim Thorburn, who discuss the ethics of
medical involvement with executions. In
addition, we invited Jennie Lancaster, former superintendent of the North Carolina
Women's Prison where Velma Barfield was
executed four years ago, to give her account of how that event affected her.-].~.

Doctors' Involvement in Death
Penalty Creates Ethical
Dilemma
Kim Marie Thorburn, M.D.
A small group of physicians in Denmark, members of Amnesty International, devote all of their work in human
rights toward protesting the death penalty. Convincing their United States colleagues that they should remove themselves from involvement in death
sentencing and executions is their goal.
Doctors are so involved in the application of the death penalty in the United
States that there would probably be no
executions without their participation.

Contradictions in Physicians' Roles
The development of new methods
of execution has its roots in medical
compassion. A doctor invented the guillotine because death by hanging seemed
too cruel. I Doctors' protests of cruelty
brought an end to flogging and other
Dr. Kim Thorburn is medical director for
the Hawaii Department of Corrections.
'See, e.g., Albert Camus, "Reflections on the Guillotine," Resistance, Rebellion, and Death, (Vintage
Books, 1974).

TIlE

JOURNAL
OF THE

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(202) 331-0500
The National Prison Project is a tax-exempt foundationfunded project of the ACLU Foundation which seeks to strengthen
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The reprinting ofJOURNAL material is encouraged With the
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corporal punishments,2 yet doctors in
the U.S. have not recognized the parallel
cruelty of the death penalty. Many doctors (agreeing with 70-80% of the U.S.
population) believe executions are necessary and that civic duty calls for their
participation. Since executions do take
place in the U.S., some physicians argue,
the medical profession might as well
ease the way.3 This attitude among legislators ushered in lethal injection executions, maintained by some to be a humane death. 4 Others note the sense of
2See, e.g., Leo L. Stanley, Men at Their Worst, (D.
Appleton Century Co., Inc., 1940).
'See Herbert G. Kersten, letter to the editor, The
New England Journal of Medicine 302, (1980),
p.97I.
·See, e.g., Carol Candia, "Court Stalls Lethal Injections: Physicians' Role in Executions Debated,"
American Medical News, (Oct. 28, 1983).

A doctor invented the guillotine
because death by hanging
seemed too cruel.
legitimacy which a professional medical
procedure---administering intravenous
drugs--<onfers on the act of killing. s
The contradictions of physician participation are not limited to attendance
in the death chamber. Doctors are
sometimes involved in capital trials, during the long wait on death row, and in
the preparations for the execution. To
save lives and relieve suffering are a phy'See Ronald Bayer, "Lethal Injections and Capital
Punishment: Medicine in the Service of the State,"

Journal of Prison and Jail Health: Medicine, Law, Corrections and Ethics 4 (1984), pp.7-15.

"Nor Willi Prescribe a Deadly Drug • • • "
Armond H. Start, M.D., M.P.H.

In 1976, the state of Oklahoma
passed legislation that required the death
penalty be implemented by using an
overdose of a short-acting barbiturate
and a muscle paralyzing agent. Texas followed with similar legislation, becoming
the first state to execute a person utilizing the lethal injection technique. Several
states have subsequently passed legislation that requires the death penalty be
carried out using a lethal overdose of
commonly used anesthetic drugs. An
ethical conflict arises when medical staff
become involved in the process of execution using the lethal injection
approach.
Medical ethics may be defined as a
code of behavior that sets limits beyond
which behavior will be unacceptable, and
in general addresses areas not defined by
law. In all states that have lethal injection
laws, there is no requirement that medical personnel participate in the process.
In some states the law requires a physician to pronounce death. Medical staff
may legally refuse to participate in lethal
injection procedures, including the preparation of policies and procedures.
Physicians and other medical personnel believe that the Hippocratic Oath
generally defines the ethical professional
behavior of health care staff. A portion

Armond Start, M.D., M.P.H., (ormer medical director o( the Oklahoma and Texas
prison system, is a consultant in correctional health care and medicine. He received the National Commission on Correctional Health Care's Award o( Merit (or
his fight to prohibit physicians (rom participating in capital punishment and (or leadership in improving correctional health
care.

of that oath states, "I will prescribe regimen for the good of my patients according to my ability and my judgment and
never do harm to anyone. To please no
one will I prescribe a deadly drug, nor
give advice which may cause his death."
It is obvious that anyone who swears to
this oath cannot be involved in any way
with the execution of a person utilizing
the lethal injection method.
The Thirty-seventh Session of the
United Nations General Assembly
adopted a resolution on Principles of
Medical Ethics relating to the treatment
of prisoners. Principle Three states, "It is
a contravention of medical ethics for
health personnel, particularly physicians,
to be involved in any professional relationship with prisoners or detainees, the
purpose of which is not solely to evaluate, protect, or improve their physical
and mental health." I It is absurd to take
the position that involvement in the lethal injection process does not affect the
prisoner's physical or mental health.
The American Medical Association
in 1980 passed a resolution that defines
proper physician behavior in this area.
The resolution states, "A physician, as a
member of a profession dedicated to
preserving life when there is hope of
doing so, should not be a participant in a
legally authorized execution."2 In regard
to the certification of death the resolution states, "A physician may make a determination or certification of death as
I Principles of Medical Ethics, Proceedings of the
Thirty-seventh Session of the United Nations General Assembly AlRes/37/194 (March 9, 1983).
2AMA Judicial Council: Report to the House of De/egates--129th Annual Convention, Chicago, American
Medical Association, (1980).

sician's duties. Any involvement with
condemned persons should be an ethical
dilemma for doctors. 6
-continued on next page
61n 1986, the Danish physicians led their Scandanavian colleagues in a strong statement about the dilemma: "From ancient times to the present, codes
of medical ethics have recognized the basic premise that the purl?ose of medical knowledge and skill
is to improve health and relieve human suffering.
"For a physician to prepare, administer or
monitor any procedure with a view to [the] injuring of human beings or to train others to do so
would be a perve'i0n and corruption of medical
knowledge and skill and of the physician's responsibility to and role in society.
"Thus, the medical associations of the Nordic
countries (Denmark, Finland, Iceland, Norway and
Sweden) in recognition of human integrity declare
it indefensible for any physician to participate in
any act connected to and necessary for the administration of capital punishment."

currently provided by law in any situation." Some physicians have interpreted
the certification of death allowance to
mean that the physician may listen to a
stethoscope attached to the prisoner's
chest in order to determine the exact
time of death. This practice must be
condemned because it involves the physician in the procedures of execution.
The physician may be called upon to cer:
tify death after non-medical personnel
have determined that all evidence of life
has disappeared.
The mechanics of carrying out a
judgment and sentence are the responsibility of the non-medical correctional .
administrator. That person is given the
authority by state law to obtain the necessary drugs and equipment from conventional supply houses (pharmacies). It
is not necessary for a physician to "write
a prescription." The same state law that
authorizes a physician to write prescriptions authorizes a non-medical correctional administrator to obtain the supplies needed to effect the death penalty.
A non-medical person with average intelligence can determine an overdose of
the lethal drugs called for in the law.
There are many non-medical persons
who are skilled in intravenous fluid administration that can be employed in a
confidential manner to assist the designated correctional administrator in the
administration of the lethal drugs. Examples of persons who possess these skills
include technicians who work in animal
laboratories, veterinarians, basic science
physiologists and pharmacologists, exmilitary paramedics, and ex-IV drug
users.
The inmate patients served by the
medical staff must believe that the medical staff is committed and dedicated to
the preservation of life. II

FALL 1988 3

1
Forensic pathologists can, and
often do, testify in support of the
death penalty.

-continued from previous page
Prior to an execution, medical contributions can make the difference between a life or death sentence, or between proceeding with or cancelling an
execution. One blatant example is in determination of the defendant's competency to be executed. The Supreme
Court held, in a 1985 decision, Ford v.
Wainwright, that the execution of an insane "erson violated the Eighth Amendmene Most death penalty states already
prohibited execution of insane persons.
Even so, Ford prompted considerable discussion in the psychiatric community.s
Should psychiatrists be involved in competency-to-be-executed evaluations? If
the doctor finds adequate insight or no
mental illness, the condemned person
will be killed. If the doctor finds mental
illness, there is an obligation to treat in
order to relieve suffering. Treatment can
lead to improvement and then, probably,
to death. Physician decisions and actions
that lead to the intentional death of a
person are the antithesis of the profession's purpose.
Forensic medical testimony may
also have a deadly outcome by contributing to a verdict of capital murder or
by presenting medical evidence of aggravating circumstances during the sentencing phase of a capital trial. Medical testimony is often the opinion of the forensic
expert. Forensic pathologists can, and
often do, testify in support of the death
penalty.

Doctors in the Death Chamber
Besides .fompetency [to-be-executedj evaluations, it is the appearance
of doctors in the death chamber that has
caused the most discussion within the
profession. In 1977, Oklahoma and Texas
became the first states to institute lethal
injection as a method of execution. The
Oklahoma Medical Association lobbied
hard to remove doctors from the process. 9 The day the law passed in Texas,
'Ford v. Wainwright, 106 S.Ct. 2595 (1985).
SSee, e.g., "The Death Penalty: Dilemmas for Physicians and Society, a Panel Discussion," Pharos,
(1987), pp.23-27. Also, Diane M. Gianelli, "Death
Penalty Ruling Creates Dilemma for Psychiatry,"
American Medical News, Ouly II, 1986).
'See Robert Moore, "Doctor as Executioner. The

4 FALL 1988

the state medical association passed a
resolution prohibiting physician participation in executions, except to certify
death. lo After several states had established lethal injection executions, but before the first sentence was carried out
in Texas in 1982 against Charlie Brooks,
the American Medical Association
(AMA) declared that no physician should
participate in an execution, except to .
certify death.' I "Participation" is defined
Argument Over Death By Injection," The New
Physician, (1980), pp.21-24.
lOSee, e.g., "Injection Death Laws Become Ethical
Issue," American Medical News, Ouly I I, 1980).
Also, Ward Casscells and William J. Curran, "Doctors, the Death Penalty and Lethal Injections," The
New England Journal of Medicine 307, (1982),
pp.1532-1533 .
II AMA Judicial Council: Report to the House of Delegates--129th Annual Convention, Chicago, American
Medical Association, (1980). The resolution says,
"An individual's opinion on capital punishment is
the personal moral decision of the individual. A
physician as a member of a profession dedicated to
preserving life when there is hope of doing so
should not be a participant in a legally authorized
execution. A physician may make a determination
or certification of death as currently provided by
law in any situation." See also, Opinions of the Eth-

by the AMA Judicial Council as the direct administration of the drugs or the
supervising of other personnel.'2
The AMA has no position on capital
punishment. It has never censured physicians for involvement with the death
penalty. Inquiries into physician participation in executions are met by mailing its
resolution. 13
The AMA Judicial Council's discussion and resolution were stimulated by
implementation of lethal injection execution laws, an egregious medicalization of
the death penalty. More subtle medicalization of the executions has become tradition; physician attendance in the death
ics Committee on the Principles of Medical Ethics,
with annotations especially applicable to psychiatry,
American Psychiatric ASSOciation, (1985); Resolution on Physician 1!articipation in Capital Punishment,
World Medical Association, (1981).
12See, e.g., William J. Curran and Ward Casscells,
"The Ethics of Medical Participation in Capital Punishment by Intravenous Drug Injection," The New
England Journal of Medicine 302, (1980), pp.226230. Also, John H. Burkhart, "Legal Executions
Raise Ethical Issues for MDs," American Medical
News, (February 25, 1983).
13See, e.g., Doug Lefton, "Execution of Texas Prisoner Raises Ethical Issue for MDs," American Medical News, (December 17, 1982). Also, physicians
who made inquiries to the AMA about the physician who directed further electrocutions during •
the 1985 Indiana execution of William Vandiver received a terse letter from AMA staff directing correspondents to the 1980 resolution.

Machine Administers Fatal Injection
Julia Code

An enterprising businessman has developed a machine to administer lethal
injections without the assistance of medical personnel. One satisfied customer,
H. Brooke Laggner, explains, "It takes
away the element that you don't have
any Hippocratic Oath problems because
all you need is someone to set up an IV"
Laggner is the chief of administration
and operation support for Delaware's
Department of Corrections. Delaware is
one of five states that have purchased
the $30,000 lethal injection machine.
According to an Associated Press
report, the injection machine is a 3-by4-foot gray box with a row of switches
and red lights. The device is mounted to
the wall above the prisoner's gurney.
Five to six feet of IV tubing-inserted
into the prisoner's right arm by a medical technician-run through the wall to a
computer control panel. The execution
procedure consists of two executioners
activating the machine by pushing a button-neither knows which one actually
causes the 10-15 cubic centimeters of
.
drugs to be injected.
Three rounds of drugs are administered over a four to six minute period,

"as opposed to 25 minutes to a half an
hour," says Norbert C. Lynch, president
of American Engineering Company, located in Boston, which designed and
manufactures the lethal injection machine. They also make electric chairs,
gallows and gas chambers. It is believed
to be the only company in the United
States specialiZing in execution equipment. Lynch describes the machine's importance by saying, "This is the most humane way we know of today to carry
out lethal injection. If they're going to
carry it out, they should do it in the
most humane way possible. The methodology that's used in the lethal injection
on a manual system is barbaric." He explains that the basic complications in lethal injection executions are ruptured
veins, inaccurate dosages and failure to
immediately induce unconsciousness.
The lethal injection machine marketed by Lynch administers three layers
of drugs. The first dosage of sodium
thiopental brings on unconsciousness.
The second dosage of pancuronium bromide (Pavulon) paralyzes body functions.
The third dosage of potassium chloride
stops the heart. •

-

chamber is the procedure in many
states. Death is often pronounced-not
just certified-during electrocution or
lethal gassing, by listening for the cessation of heartbeats through a long-tubed
stethoscope. Frequently, in the case of
electrocution, one high-voltage jolt is
not enough to induce cardiac arrest.
When the listening physician indicates
continued survival, more shocks are delivered. The doctor directs the execution, even if he or she does not pull the
switch.

Professional Conflicts
Prison doctors most directly confront the professional conflicts created
by the death penalty. Besides the usual
assumption by prison officials that institutional physicians should preside over
an execution, prison doctors render care
and treatment to condemned prisoners
who often spend years in the destabilizing environment of death row. From the
doctor's perspective, provision of care
to condemned prisoners may be similar
to attending patients with terminal illnesses. Physicians caring for condemned
prisoners must make decisions about appropriate medical interventions, and deal
with refusal of care '4 and suicide. IS Medical care decisions may be influenced by
the patient's scheduled death. Even Without the burden of these difficult decisions, a caseload of "terminal" patients
can be emotionally draining.
The prison doctor's caring role may
be needed and requested by staff as well
as prisoners, as corrections professionals
are reticent to discuss the emotional
shock of their duty to kill. For example,
the American Correctional Association
takes no position on the death penalty,
but has begun to educate its members in
death row management, acknowledging
inherent difficulties which affect facility
operations. 16 An execution has a dramatic and moving effect on a prison and
its staff. I? Prison administrators may turn
to the facility's physician for emotional
support. IS Presence of a medical profes"See William HOffer, "Medical Care on Death
Row: Awaiting Execution, Manuel Quintana Refused Bypass Surgery," American Medical News,
(March 9, 1984).
"See Kim Marie Thorburn, "Physicians and the
Death Penalty," The Western Journal of Medicine
146, (1987), pp.638-640.
"See Charlotte A. Nesbitt, "Managing Death
Row," Corrections Today, Ouly 1986).
17The BBC film "Execution: 14 days in May," which
deals with a Mississippi prison's response to the
execution of Edward Earl johnson, demonstrates
mounting tension as the execution date approaches. Also, at a workshop at the 1987 Congress on Correction, Warden jennie Lancaster of
the North Carolina Correctional Center for
Women, told of her struggle and the pain of her
staff caused by the execution of Velma Barfield.
181n my role as a prison physician, a warden once

-----~~~~~~~~~~---~~--------

The doctor directs the execution,
even if he or she does not pull
the switch.
sional at an execution symbolically absolves the prison officials who carry out
the killing.
The charitable role of a doctor at
an execution may also go beyond the
prison walls to reflect society's desire
for release from responSibility. Our
courts acknowledge that a society's standards of decency evolve. 19 Western democracies and many nonaligned nations
believe the death penalty is indecent,
and have abolished it. In the U.S., we
persist in killing certain criminals, but in
tacit acknowledgement of evolVing standards of decency, there is evidence of
some public discomfort about it. 20 It is
our larger society which seeks medicalization of the death penalty. The public
recognizes the medical profession's ethical duty of beneficence; participation by
an altruistic profession in the process
leading to the execution conveys a sense
of decency to state killing.
As participants, and by assent of the
profession, U.S. physicians are key players in the perpetuation of capital punishment. Therefore, they have a role in
bringing about its abolition. In a 1973
text, Ralph Siovenko argued that medicalization of the death penalty was responsible for ending executions in the
u.S. 21 The country was in the midst of a
IO-year moratorium on executions. One
year earlier the U.S. Supreme Court
had, in Furman v. Georgia, overturned all
extant death penalty laws. 22 Executions
had, in fact, come to a halt by 1976;
public opposition to the death penalty
was at an all-time high. Siovenko noted
that since competency was required for
execution, it was the physician, not the
warden or the sheriff or the politician,
who was responsible for the decision to
kill. Psychiatrists then, as now, were uncomfortable with that role. "The capacity-to-stand-execution procedure ... ,"
confided that he dreaded facing his task of executioner. "If you're my doctor [the prison doctor]:'
he said, "I'll want you at the execution for MY
consolation and for my staff."
"Trap v. Dulles, 78 S.Ct. 590 (1958).
2°ln 1986, Amnesty International commissioned
pollster Pat Caddell to evaluate public attitudes
about the death penalty in Florida. The overwhelming majority of respondents answered positively to "Do you support the death penalty1," but
in specific situations (e.g., executing juveniles, executing in lieu of life imprisonment without parole,
executing mentally retarded individuals), the response was more negative.
2ISee Ralph Siovenko, "Competency to Be Executed," Psychiatry and Law, (Little, Brown, 1973),
Chapter 7.
22Furman v. Georgia, 408 U.S. 238 (1972).

says Siovenko, "achieved the functional
abolition of the death penalty."23 If his
argument is correct, medical repugnance
could again lead to abolition of the death
penalty.
Medical research may be another
way for the profession to contribute to
the abolition of capital punishment in the
U.S. To date, very little epidemiologic
research has ,been done on death row.
One small series demonstrated a high
rate of neurop,sychopathology among
condemned prisoners?4 The authors
raised concerns about the significance of
their findings 01'1 death sentencing: does
the pathology preclude an adequate
defense?

Discrimination in Death Sentencing
Despite the U.S. Supreme Court's
disquietude about "arbitrary and carricious" death sentencinf in Furman,2 discrimination continues? Racial discrimination was acknowledged in the Court's
opinion in McCleskey v. Georgia;2? discrimination against defendants with mental and neurologic diseases may also exist. Only the medical profession can
affirm or deny a high prevalence of neuropsychopathology among death row
populations. If the preliminary findings
were confirmed, they would prOVide
further evidence of discriminatory sentencing in death cases. Various states and
the federal government have outlawed
discrimination on the basis of race or
medical handicap. This year, civil rights
advocates introduced the Racial Justice
Act in Congress which will permit use
of statistics to determine racism and
prohibit such discrimination in death sentencing. Once civil rights laws are applied to the death penalty, persons with
medical handicaps should also be
protected.
The distress of the Danish abolitionist physicians is justified. U.S. physicians must be convinced of the ethical
problems of their involvement in the
death penalty. They hold the keys to its
abolition. liliiii

23See Ralph Siovenko, supra, p.125.
"See Dorothy Otnow Lewis, jonathan H. Pincus,
Marilyn Feldman, Lori jackson and Barbara Bard,
"Psychiatric, Neurological, and Psychoeducational
Characteristics of 15 Death Row Inmates:' American Journal of Psychiatry 143, (1986), pp.838-845.
25Furman v. Georgia, supra O. Stewart concurring).
USee, e.g., United States of America: The Death Penalty, (Amnesty International Publications, 1987).
27McC/esky v. Kemp, 107 S.Ct. 1756 (1987).

FALL 1988

5

Corrections Staff Are "Silent
Actors" in Executions
Jennie Lancaster
I began my career as a corrections
professional 17 years ago. I wanted to
do something to help somebody. I guess
I was a typical child of the 60s who felt I
had an obligation to help change the
conditions of the world. My initial experience in working with offenders helped
me see the different broken pieces of
their lives and I felt challenged to do
something about it. For a number of
years, I felt I understood my role as an
enabler of positive change. It was clear
to me that society had expectations
about what corrections people ought to
be about. I knew that my first responsibility was to protect the public, but
there was also an expectation that we,
as corrections professionals, should do
something to change people's lives in a
positive manner. 1 lived and worked by
these expectations for many years.
When I was made superintendent
of the North Carolina Correctional
Center for Women in July 1982, I did
not realize that one of my responsibilities as a new superintendent would be
to manage an execution. In November
1984, I was a part of the execution of
the first woman in the United States in
22 years. Her name was Velma Barfield,
and her execution became one of the
most challenging and difficult experiences of my professional and personal
life. It may seem unusual at this point for
a corrections professional to be speaking
about execution, as this has not been an
open topic of discussion in correctional
circles. Traditionally, capital punishment
has remained a topic of emotional debate by special interest groups and the
media. It is not my intent in this article
to join that debate. I want to move beyond the headlines and speak about the
experience corrections professionals face
as they become silent actors behind the
scenes, resp~nsible for managing all the
difficult realities an execution presents
to staff.
It is also important for me to state
clearly that these are my opinions about
what I experienced in a women's facility.
It is my hope that a discussion of what
my staff experienced will help enlighten
some and open up opportunities for

Jennie Lancaster has just been named Female Command Manager for the North
Carolina Division of Prisons, a newly established position for al/ six women's facilities.
She was formerly the superintendent of the
North Carolina Correctional Center for
Women.
6

FALL 1988

These challenges have never
been more difficult than in 1984,
as we prepared for Velma's
execution.
communication among other corrections
professionals who may face this experience. I also hope to change the stereotype that some may have of corrections
staff as power-oriented, punitive and uncaring persons. Sometimes I think people
feel we ended up in the prison system
because we couldn't get a job in any
other area. I have had the proud experience of working with some of the most
dedicated professionals in the business
who are committed to working to effect
positive change in a challenging environment. These challenges have never been
more difficult than in 1984, as we prepared for Velma's execution.
As superintendent for the Correctional Center for Women, I had worked
with Velma Barfield, the only woman on
death row at my facility, for a number of
years. During these years, I developed a
relationship of mutual respect and cooperation with Velma's attorney. This
professional relationship involved open
and honest communication about the
realities of Velma's case as it moved
through the appeals process. As we entered the early spring of 1984, I realized
that the possibility of Velma being executed that year was a reality that her attorney, Velma, and I had to face. I realized that I, my staff and our inmates
would face a number of challenging
questions. I became aware that I had to
make some decisions about how I felt
about the death penalty and, once I resolved this within myself, I had to clarify
what my role would be in this process. I
never discussed my personal opinion as a
component of my role as a corrections
professional. In thinking about my role as
superintendent, I began to feel like a
parent of a large family that would
undergo a crisis together and that I
needed to provide guidance, support and
vision to the institution. I felt very
strongly about the integrity of our daily
operations and I did not want to compromise this integrity by losing our perspective of the reasons why we chose to
work in corrections. I looked for guidance and found a void of information
about what to do. The only helpful information to be found was the strictly

technical data about how to implement
an execution.
As I began to discuss the possibility
of an execution with my top staff, I
quickly saw what their dilemma would
be. It has become an irony for those of
us in the corrections profession who
have to face ex:ecutions. In general, what
I heard from my staff was, "We got into
this business because we thought we
could make a difference in people's lives.
We are not in it because of the money
or the recognition. Every now and then,
we think we lan make a difference. We
are not sure we know what it means to
kill somebody."
Our job was to take care of people
for numbers of years. During this period
of time, there is the strong possibility
that some inmates have opportunities to
change their'livesand to grow and accept responsibility for their actions and
who they are. We are a part of that
process; we are the ones who work
with them, and encourage them to
grow. We are the ones who are there
to work with their families and try to
maintain responsible and hopeful relationships between the inmate and the
family. Many times we are there to hear
the confessions that come from those
who finally do accept responsibility for,
what they have done and want to move
on with their lives in a positive manner,
and maybe give back a little bit to the
society from which they have taken so
much. We are asked to take care of
somebody in a humane, responsible manner. Then we are asked to prepare to
take that person's life. It became a particular dilemma for my medical and mental health staffs who felt conflicts in their
roles as treatment providers who help
sustain life.
I found myself telling staff that we
had a right to our individual opinions
about the death penalty. I encouraged
them to talk with me and with each
other about how we felt and what our
struggle was about, but I was emphatic
that our role at the institution was to be
support persons who brought integrity
during this period. Integrity for me, at
that time, meant that we performed our
jobs in the same manner in which we did
every day. We were to be reasonable,
caring, responsible persons who help
manage a very small community, but a
community that was about to experience a tremendous emotional upheaval. I
feel that an execution within a women's
facility is probably one of the most
highly emotional events that can occur in
the life of the institution. This certainly
became the case in 1984.
As 1 began to clearly address our
responsibilities with my staff, I also began to try to solicit support and guidance from others in the correctional sys-

------~-~--~~~~~

We are asked to take care of
somebody in a humane,

responsible manner.
tem. The issue of execution has never
received a lot of attention, except about
the process. I was instructed to develop
and implement new security procedures,
and I was given specific directives about
dealing with the tremendous amount of
media interest in this case. I began to
feel that my institution and my staff
were an isolated island. Although surrounded by many people who were expressing very definite ideas about what
was about to happen, we were not receiving a lot of support for the difficult
process that this puts people through.
There were few people around who
said, "Hey, I understand what you must
be feeling and I know it's tough and I
want to help." I did get many questions
about how I was managing everything at
the institution. I particularly felt some intense scrutiny about a female institution
preparing for this execution. Could we
keep our feelings in perspective? Could
we manage Velma? As an administrator,
it became a daily challenge for me to
walk a fine line in facing what I think is
the greatest challenge to the integrity of
our profession and how to do it.
There are people who say that we
are simply following the law and that we
are not actually involved in taking someone's life. I disagree. For several months
prior to the execution, I was involved in
many specific things that clearly were
about the planning and the process of
the ending of Velma Barfield's life. I became very focused on the individual and
the family that I had worked with over
the years. There was a sense of helplessness and dependency that I felt from
Velma and her family. As staff, we had
developed relationships with her family
that involved an active process of listening, care and support for the unbelievable stress and pressure they experienced
because a person they loved lived on
death row ana faced execution.
We corrections professionals are
quiet about what we are and what we
do, but we are at a point of silence
when facing an execution. It's as if we
feel that we have to fulfill some sort of
myth in society's mind that we have no
feelings about the people we work with;
I find this to be totally incorrect. To
have feelings and concern for those persons under our care doesn't mean that
we absolve them of responsibility for
what they did or that we deal sympathetically with them. Rather; for me it
means that we realistically approach
them as human beings, human beings
who have used poor judgment in their

lives. We are placed in a guardianship
role. This role also proves to be confusing to the inmates.
I think an idea exists that might be
supported by some in the general public,
that you should not deal with inmates as
people, you simply deal with them as
bodies who do what you tell them to
do. My philosophy has always been to
treat inmates as they respond to the environment and to allow them some limited control over their own lives. I was
fully aware that Velma's pending execution was raising various issues and concerns in our inmate population and I
wanted to acknowledge this reality. The
general comment I heard from inmates
was, "You people tell us to change our
lives. You tell us that if we change our
lives and ask for forgiveness, that we can
find a place in this society. We see Ms.
Barfield as an inmate who has helped
many of us while we were in segregation. She always encouraged us to
change our lives. What does her execution mean for the rest of us? How do
we understand the words we heard
from staff about changing our lives? We
don't understand." I saw fear and anxiety and allowed them to express their
feelings in a responsible manner. I asked
the staff to listen and not to interject
their own personal opinions when they
heard the women's concerns and feelings. The month prior to the execution,
we used the Sunday Morning chapel
times to face the fact that an execution
was probably going to occur and that it
was going to cause a great deal of feeling within the small community in which
we worked and they lived. I felt the tension and emotion build up until the time
of the execution. The first visible event
for the inmates was when we moved
Velma to Central Prison, the actual site
of the execution chamber, several days
before her scheduled death at 2:00 a.m.
on November 2.
My staff had spent much time considering and planning what our efforts
would be on the actual night of the execution. Our plans included using every
employee in some manner over a 24hour period. We stationed treatment
staff as teams in the dorms to work with
the correctional officer who was assigned to that post. So often the custodial officers feel they are on the "firing
line" alone when a crisis occurs. We allowed inmates to express feelings and
grief, and the one individual who began
acting out was managed appropriately.
The treatment teams were in place all
night. I made the statement after the
execution that Velma was executed at
Central Prison, but she died at Women's
Prison. We got through the night and
subsequent days without any major
incidents.

Could we keep our feelings in
perspective? Could we manage
Velma?
In summary, I feel we faced several
dilemmas:
I. Corrections staff are generally
caring people who care for inmates, see
them daily and work with their families.
We are the real actors in the prison.
Then we are asked to prepare to kill
someone. I have talked with several persons who have been directly involved in
executions in other states, and it was a
powerful personal experience for them
also.
2. Some corrections staff have
personal opinions about the death penalty. Whatever their opinion, they must
move beyond it to carry out the process, and their involvement can cause
emotional upheaval. Executions can
affect all staff, however minimal their
active involvement.
3. As the reality of an execution
approaches, the event becomes a political and public event that brings much attention. The corrections staff feel that
they are under a microscope of scrutiny
and this places additional pressure. They.
feel more isolated.
4. Corrections staff involved in
managing executions receive much direction about process. They need support
before and after the execution that recognizes the dilemmas they may face.
There needs to be follow-up support
with staff involved, although many others
may assume the experience is over and
forgotten. It stays with you.
5. Finally, corrections staff who
must manage and treat death row inmates and who must be involved in all
levels of planning and implementing executions get caught up in the volatile
emotional disagreement about capital
punishment. This indirect involvement
can mirror conflict about our mission.
Personally, I have felt the dilemma
of being a silent actor stepping into the
public arena. My hope is to encourage
dialogue and understanding. III

FALL 1988 7

AIDS Policies Tested in
Alabama Prison Case
Nancy Ortega
The nurse sits in silence as the syringe fills with blood being drawn from
the arm of the new prisoner. Unaware
that he is about to be tested for AIDS,
the prisoner asks no questions, makes no
objections.
Only a few days after testing, this
prisoner will be approached by a guard,
told to gather his things and not to
speak with the other prisoners. He is
locked in isolation at first, without explanation. Two weeks later a passing
comment from a guard will bring the
news that he is dying, the victim of a fatal, dread disease. Over a month passes
before he finds out he does not actually
have AIDS.
Currently, the Department of Corrections in Alabama requires testing of
all state prisoners for exposure to the
Human Immunodeficiency Virus (HIV).'
HIV must be present in order for AIDS
to develop; but its presence does not
necessarily mean that one will develop
AIDS?
For Alabama prisoners, the consequences of mandatory testing are especially dire. Those who refuse to submit
to the test are isolated from the general
population and subjected to punitive
sanctions. Those who submit to the test
and test positive are subjected to harmful, humiliating and unconstitutional practices and conditions.
Law and policy dealing with AIDS
discrimination outside the prison setting
are just beginning to develop.3 Thus, it is
not surprising that many legal issues created by AIDS in a prison setting have
yet to be addressed, much less developed. A suit recently filed on behalf of
all Alabama state prisoners, Harris v.

Nancy Ortega is an attorney with the
Southern Prisoners' Defense Committee in
Atlanta, GA,"'and is counsel for the prisoners on the Harris case.
I Under a recently enacted state statute, all Alabama state prisoners must submit to a blood test
for HIV antibodies upon admission to prison. Prisoners must also submit to another test 30 days
prior to their release. 1987 Ala. Acts 574. The Alabama Department of Corrections has extended
mandatory testing to all prisoners by administrative
edict.
'See "Public Health Service Guidelines for Counseling and Antibody Testing to Prevent HIV Infection and AIDS," 36 MMWR 509, (Aug. 14, 1987).
3A recent article that discusses developments in
AIDS law outside the prison setting is Weisenhaus,
"The Shaping of AIDS Law," National Law Journal,
(Aug. I, 1988), p.l.

8

FAll 1988

Thigpen,4 is the first challenge to mass
mandatory testing of state prisoners for
exposure to HIV and the policy of segregation and ostracism associated with
that testing. s
While several prisoner lawsuits
have challenged the discriminatory treatment of those who test positive for HIV
exposure, Harris, pending in the United
States District Court, Middle District of
Alabama, is the first to challenge mandatory mass testing. Originally filed as a
pro se complaint, Harris also challenges
policies and practices arising from forced
testing, including the isolation of prisoners who test positive into segregated
housing units.
Treatment of HIV Positive
Prisoners in Alabama
The blood test administered by the
Alabama Department of Corrections
does not test for AIDS. It merely tests
for the presence of HIV antibodies using
a test known as the enzyme linked immunoabsorbent assay (ELISA).
A positive ELISA result, indicating
the presence of HIV antibodies, does
not mean that the individual has AIDS. In
fact, the Centers for Disease Control
(CDC) recommend that a second blood
test be given when an individual initially
tests positive on ELISA, because of the
high risk that the first test may be falsely
pOSitive. Even if that second test is positive, the CDC further recommends that
a third and more accurate blood test,
the Western Blot, be given to confirm
or contradict the ELISA result. Even the
accuracy of the Western Blot depends,
however, upon the skill of the laboratory conducting the test.
Many Alabama prisoners are not
told for what purpose they are being
tested; they are only told they will be
placed in isolation if they refuse to submit to the test. The Alabama Department of Corrections does not provide
information or counseling to the prisoners about the test before or after it is
administered. Corrections staff is no better informed about AIDS transmission
than prisoners, since the Department of

Corrections conducts no staff education
on AIDS.
In Alabama, a prisoner is transferred to a segregation unit upon the
first positive ELISA result, totally disrupting the fabric of that prisoner's life. 6
Prisoners participating in community
programs at the time they test positive
are removed from these programs, returned to prison and placed in the segregation unit. As a result of their segregation status,. these prisoners lose the
opportunity to participate in any vocational and most educational programs;
they are not "IIowed to work. Thus,
they cannot use their time in prison to
learn additional job skills or improve existing job skills which would increase
economic opportunities upon release. In
addition, unlike prisoners in the general
population, these inmates cannot earn
money for themselves or their families.
The inmates are not allowed to
participate in religious services with the
rest of the general population. There is
no access to the gym or recreation
yards. The HIV positive inmates must
exercise separately from the general
population. Access to the law library, if
allowed, is limited to one late hour a
week after the library is closed to the
general population. Thus, no inmate legal
aides are available to assist the HIV positive inmates. HIV positive prisoners cannot go to the prison beauty or barber
shop. They can only go to the canteen
at a time separate from the general population, if at all. Even then, they are escorted by guards.
Prisoners in the HIV units must eat
off plates with plastic utensils or wooden
sticks. Any reusable plates are washed
separately from plates used by the general population. Sheets and towels are
marked with inmates' names and are
placed in red garbage bags and washed
separately.
These inmates are not allowed to
participate in drug or alcohol rehabilitation programs with the general population. The Department of Corrections
also denies them access to pre-release
programs, community based programs
and furloughs. This policy denies the opportunity to make any meaningful transition back to society. In short, HIV positive prisoners are not allowed to
participate in any activity where they
will be in the same room with other
prisoners.
This change in classification occurs
-continued on page fourteen

'Harris v. Thigpen, No. 87-V-1109-N (M.D. Ala.,
filed November 5, 1987).
sThe prisoners are represented by attorneys from
the National Prison Project in Washington D.C.,
local Alabama attorneys, and attorneys from
Southern Prisoners' Defense Committee in Atlanta, Georgia.

"Alabama is among a small minority of states that
does not distinguish between prisoners with positive antibody tests and prisoners who have AIDS in
its segregation policy. "NPP Gathers Statistics on
AIDS," NPP JOURNAL, Number 16, (Summer
1988).

NUMBERS I THROUGH 16
FALL 1984-SUMMER 1988

Index to Articles:
Subject

Issue/page no.

A
ACCESS TO THE COURTS
Mecklenburg Correctional Center obstructs lawyer access
Florida opens death penalty appeals office
The serious shortage of death penalty lawyers
ADMINISTRATIVE SEGREGATION
Ad. seg. conditions in Arizona State Prison challenged
Settlement reached in Arizona case
AIDS (Acquired Immunodeficiency Syndrome)
NPP gathers the factS on AIDS in prison
Chart: Results of AIDS in prison survey (1985)
Medical expert cites problems in AIDS screening
Balanced response needed to AIDS in prison
AIDS policies raise civil liberties concerns
NPP establishes AIDS Project
NPP releases AIDS Bibliography
Correctional health care: past and future
A study of New York inmates with AIDS
NPP gathers statistics on AIDS in prison
Chart: Results of AIDS in prison survey (1988)
NPP hires AIDS project coordinator
ALABAMA
Conrad: an expert's view of litigation and the Alabama
case
Former NPP lawyer remembers the Alabama case
Nagel: reflections of an expert witness
ALTERNATIVES TO INCARCERATION
Surveys reveal support for alternative sentencing
Examining community service alternatives
Prison not always the answer for female offenders
Alternatives only option for crowded D.C. system
Alternative programs for women are few and far between
Imprisoned mothers face extra hardships
Involving vic'tims and offenders in the sentencing process
NPP, local ACLU obtain agreement in Maryland jail case
AMERICAN CIVIL LIBERTIES UNION
ACLU opens two death penalty centers in South
Calif. ACLU opens Women Prisoners Rights Project
ACLU of Montana inspects Montana jails
ACLU Handbook, The Rights of Prisoners revised
ARIAS V. WAINWRIGHT
NPP lawsuit challenges conditions in Florida jails
ARIZONA
Parties move toward settlement in Black
Revived settlement halts trial in Black
A lighter view of the Arizona case
ATIICA
Remembering the Attica uprising
NPP lawyer's work rooted in New York litigation and
Attica

3/2
7/1
12/1
1/3
5/4
6/1
6/4
6/5
711
10/10
11/16
12/13
13/29
15/7
16/5
16/6
16/14
8/12
13/8
13/13
9/1
10/13
10/11
11/13
12/9
14/1
14/9
15/13
7/7
7/10
10/9
15/14

3/1
1/3
5/4
5/5
13/5
16/12

AUTHORS
Aiyetoro, Adjoa A.
"Vestiges of Slavery: Racism in Sentencing"
"Bureau Continues Totalitarian Measures at Marion"
Alexander, Elizabeth
'1ustice Department Retreats: The Michigan Case"
"Judge Halts Meddling with Access to Clients"
"Violations in South Dakota Prison Lead to Lawsuit"
"U.S. v. Michigan: An Update from the Battlefield"
"Prisoners' Lawyers Face Critical IssiJes"
Andersen, Erik
"Denmark's Radical Approach to Super-Max Yields
Success"
Bagdikian, Ben H.
"Media Treat Crimes As Isolated, Random Events"
Baird, Katy
.'
"Death Penalty Law Still Tolerates Inequities"
Barry, Ellen
"Imprisoned Mothers Face Extra Hardships"
Bernat, Betsy
"How Some Folks Do It in the Lone Star State"
"Chock Full of Nuts"
"How the West Was Won, Part II"
"Hold Your Nose! NPP Examines the Diet Loaf'
"Fourth Circuit Upholds Lower Court Order in South
Carolina"
"Another Day, Another Dead Roach In the Mail"
"NPP Lawyer Ed Koren: Attica Started It All"
Bonnyman, Gordon
"Recent Federal Court Orders Spur Tennessee Toward
Prison Reform"
Breed, Allen
"Special Masters: Debate Needed on Role of Masters in
Litigation"
Bright, Stephen B.
"Judicial System Inconsistent in Doling Out Death"
Bronstein, Alvin J.
"Opening Remarks"
"Court Says Hands Off on Contact Visits and Cell
Privacy"
"The Legal Implications of Privatization"
"Rhode Island Prisons Changing After Seven-Year
Litigation Effort"
"Super-Max Prisons Have Potential for Unnecessary Pain
and Suffering"
"Neglect of Prisons Reaps High Costs for Society"
"Sweeping New Order in Rhode Island Case Promises
Further Relief'
" I5 Years of Prison Litigation: What Has It
Accomplished?"
Burns, Haywood
"Remembering Attica"
Cade, Julia
"No More Quick Options for District of Columbia"
"Lack of Resources No Defense for Constitutional
Violations"
"ABA Funds Death Penalty Project"
"Prisoners With AIDS in New York Live Half As Long
As Those on Outside" (With Jan Elvin)
Cohen, Robert L.
"Medical Expert Views Potential for Abuse in AIDS
Screening"
Conrad, John
"An Expert Reflects on the Changing Face of Prison
Litigation"
Curtis, Dennis
"The Reform of Federal Sentencing and Parole Laws"
Dorsey, L.c.
"The Death Penalty is Still Wrong"
Dubler, Nancy
"Medical Care: Past and Future"
Elvin, Jan
"Private Firms Cash in on Crime"
"Private Prison Plans Dropped by Buckingham"
"Florida Death Penalty Appeals Office Opens"

2/12
5/8
1/1
3/2
4/6
12/8
13/22
6/8
13/31
14/8
14/1
1/8
2/10
5/5
8/10
11/13
13/35
16/12
8/1
13/15
6/12
1/2
1/9
2/1
3/1
4/1
7/12
8/5
11/6

13/5
11/13
11/14
12/8
15/7
6/5
8/12
13/21
3/8
13/29
1/6
6/11
711

FALL 1988 9

AUTHORS, continued
Elvin. Jan, continued
1011
"Oklahoma Prisoner Earns Place in History: The Story
of Battle v. Anderson"
12/1
"Where Are The Lawyers?"
12/4
"Representation at Trial"
12/6
"CCR: More Staff Needed for 'Emergency Surgery'"
"NPP Celebrates 15 Years with Memories of Past. Hope 14/11
for Future"
15/7
"Prisoners With AIDS in New York Live Half As Long
As Those on Outside" (with Julia Cade)
Flittie. Roger G.
13119
"The Class Representative: A Personal Experience"
Geballe. Shelley (with Martha Stone)
1511
"The New Focus on Medical Care Issues in Women's
Prison Cases"
Giarratano. Joseph
13/18
"Prison Reform Viewed From the Inside"
Goldberg. Judy (with Nadine Marsh)
3/3
"Ex-Offenders Find Doors Closed On Voting Rights"
Goldstein, David B.
14/6
"Supreme Court Summary"
Gostin, Larry
10/10
"AIDS in Prison: AIDS Policies Raise Civil Liberties
Concerns"
Greenspan, Judy
16/5
"NPP Gathers Statistics on AIDS in Prison"
Harris, M. Kay
13/33
"Exploring the Connections Between Feminism and
Justice"
Immarigeon. Russ
10/13
"Community Service Sentences Pose Problems. Show
Potential"
1111
"Women in Prison: Is Locking Them Up the Only
Answer?"
12/9
"Few Diversion Programs Offered Female Offenders"
14/9
"Victim and Offender Participation Important to
Criminal Sentencing Process"
15/10
"Critics Urge Caution in Interpreting Justice
Department Study"
Janger. Ted
6/6
"Expert Negotiation Brings New Approach to Prison
Litigation in Hawaii"
Jurado. Rebecca
7/10
"California Project Stands Up For Women in Prison"
Kluger, Mark
511
"South Carolina Settlement Limits Population. Enforces
Standards"
Knowles, Ralph
2/1
"Strategies For Future Prison Litigation"
Koren. Edward I.
2/3
"Dramatic Change in Oklahoma Juvenile Justice System"
Lasker, Judge Morris E.
11/9
"The Tombs, On Reflection: Prison Litigation: Many
Years Toward. Compliance"
Levine. Jod,y
5/10
"Private Prison Planned on Toxic Waste Site"
Lopez, Mark J.
15/8
"Decisions in Safley and O'Lone Undo Years of Progress"
16/1
"New Mexico Seeks to Elude Obligations of Consent
Decree"
Marnell, Gunnar
4/9
"Swedes See U.S. Death Penalty as Premeditated
Killing"
McClymont, Mary E.
1/8,2/4
"Prison Litigation: Making Reform a Reality" (2 parts)
5/3
"Hard-Fought Settlement Reached in Hawaii Case"
7/13
"Execution for Juvenile Crime Raises Questions of
International Law"
10112
'1erry M.: Settlement Reached in Juvenile Case"
Miles, Steven H. (with M. McCally and J. LaPuma)
16/9
"Health Professionals and a Preventable Death at
Butner"

10 FALL 1988

Millemann, Michael
"VA Prisoners Find Advocates in Early Prison
Reformers"
Mushlin, Michael B.
"Rhodes v. Chapman Analyzed for Effect on Prison
Overcrowding"
Myers, Matthew L.
"The Alabama Case: 12 Years After James v. Wallace"
Nagel. William G.
"Reflections of an Expert Witness"
Nathan, Vincent
.
"Lawsuits Fundamental to Prison Reform"
Ney, Steven
'
"Statewide Attack on Florida Jails Brings Improvement"
"Judge Bans Further Intake of Prisoners at D.C. Jail"
"D.C. Pushes Panic Button in Jail POpulation Crisis"
Ogletree. Charles J.
"Book Review: The Myth of a Racist Criminal Justice
System, by William Wilbanks"
Resnik. Judith
"The Limits of Parity in Prison"
Restrepo. L. Felipe
.
"Weighing Privilege to Smoke Against Rights of NonSmokers"
Rosenthal, Liz
"Tax Reform Package Caught in Catch-22"
Schwartz, Herman
"Prisoners' Rights Lawyers in VA and NY Merge to
Form NPP"
Stone. Martha (With Shelley Geballe)
"The New Focus on Medical Care Issues in Women's
Prison Cases"
Sturm, Susan
"Special Masters Aid in Compliance Efforts"
Taifa-Caldwell. Nkechi
"Muslims in Prison Seek Religious Recognition"
Tushnet. Mark
"Supreme Court Briefs"
Vaid, Urvashi
"Depo-Provera: Blessing or Curse?"
"NPP Gathers the Facts on AIDS in Prison"
"Balanced Response Needed to AIDS in Prison"
Verstraete, Greye
"Jail Inspections Trigger Improvements"
Walker, Sam
"The Beginning: Sixties Civil Rights Gave Momentum to
Prisoners' Rights"
Wood. Frank
"Oak Park Heights Sets High Super-Max Standards"
Wright. Claudia
"Parties Move Toward Settlement in Arizona"
"Revived Settlement Halts Trial In Black"
"Expert Witnesses: Expanding Their Role in Prison
Cases"

13/3
14/4
13/8
13/13
13/16
3/1
5/6
8/8
11/10
13/26
12/12
1112
13/5
15/1
6/9
8/3
8/7
4/1
611
7/1
10/9
13/2
4/3
1/3
5/4
13112

B
BATTLE V. ANDERSON
Looking back at a landmark case: Battle v. Anderson
BEHAVIOR MODIFICATION PROGRAMS
Program challenged in Arizona State Prison
Arizona settlement addresses behavior mod. program
BELL V. WOLFISH
Prisoners' lawyers face critical issues
BLACK V. RICKETTS
Ad. seg. conditions challenged in Arizona lawsuit
Revived settlement halts trial in Arizona
A lighter look at the Arizona case
BLOCK V. RUTHERFORD
Case argues rights of pretrial detainees
BODY CAVITY SEARCHES
Searches challenged at Arizona State Prison
Arizona settlement limits use of body cavity searches

10/1
1/3
5/4
13/22
1/3
5/4
5/5
1/9
1/3
5/4

BROWN V. MURRAY
Lawyer access problems at Mecklenburg Corr. Ctr.
Inmate's view of prison reform through litigation
BUREAU OF PRISONS
Bureau imposes totalitarian conditions'at Marion
BUSH V. VITERNA
Unusual practices found in Texas jails

3/2
13/18

5/8
1/8

c
CALIFORNIA
Calif. ACLU starts Women Prisoners Rights Project
CALIFORNIA INSTITUTION FOR WOMEN
Conditions challenged by Women Prisoners Project
Imprisoned mothers face extra hardships
New litigation targets medical care in women's prisons
CAPITAL COLLATERAL REPRESENTATIVE (CCR)
Florida opens death penalty appeals office
CCR handles death penalty appeals
CELL SEARCHES
Searches challenged in Block v. Rutherford
COMPLIANCE
Prison litigation: making reform a reality (2 parts)
Special masters aid in compliance efforts
Litigation and compliance: judge discusses "Tombs" case
Role of special masters: an issue ripe for debate
New Mexico seeks to elude obligations of consent decree
CONSENT DECREES
Minimal decree in U.S. v. Michigan challenged by NPP
S.c. decree limits population, enforces standards
Consent decree entered in Hawaii lawsuit
Court orders S.c. to comply with decree
Appeals court upholds pop. cap in South Carolina case
New Mexico seeks to elude obligations of consent decree
CONTACT VISITS
Contact visits for pretrial detainees issue in Block
CONTEMPT
Prison litigation: making reform a reality
CRIME
Understanding the complexities of crime statistics
Media often promotes vicious criminal justice cycle
BjS public opinion study requires cautious interpretation
CUBAN DETAINEES
Cubans detained in Atlanta Federal Penitentiary

7/10
7/10
14/1
15/1
7/1
12/6
1/9

1/8,2/1
6/9
11/9
13/15
16/1
1/1
5/1
5/3
9/4
11/13
16/1
1/9

2/4
9/6
13/31
15/10

9/1

1/3
5/4
8/10
5/6
8/8
10/12
11/13
11/14
16/1

E
ELISA TEST
~
AIDS in prison: use of ELISA test
Medical expert cites problems in AIDS screening
AIDS screening policies and the ELISA test
EXPERTS
Expert panel negotiates settlement in Hawaii
Conrad: an expert's view of litigation and the Alabama
case
'
.
The expanding role of experts in prison cases
Nagel: reflections of an expert witness

6/1
6/5
7/1
6/6
8/12
13/12
13/13

F
FEMINISM
The connections between feminism and justice
FIRST AMENDMENT
Prisoners' lawyers face critical issues
Supreme Court decisions affect First Amendment rights
Supreme Court decisions in O'Lone and Safley
FUTTIE V. HILLARD
NPP lawsuit filed in South Dakota,
Inmate describes experience as a class representative
FLORIDA
NPP files state-wide suit against Florida jails
Florida opens death penalty appeals office
Florida's CCR handles death penalty appeals

13/33
13/22
14/6
15/8

4/6
13/19

3/1
7/1
12/6

G
GRUBBS V. BRADLEY
Court orders spur prison reform in Tennessee
Letter to editor: Special Master's role in Tennessee case

8/1
8/2

H

D
DANIELS V. WILLIAMS
Supreme Court decides negligence case
DEATH PENALTY
Death penalty information packet
Death penalty: a personal view
Swedes confused by U.S. death penalty
Courts inconsistent in iSSUing death penalty
Florida opens death penalty appeals office
Model office' for centralized capital appeals
ACLU opens two death penalty centers in South
jury override can backfire into death sentence
Execution for juvenile crime challenged
The serious shortage of death penalty lawyers
Trial-level errors in capital cases
Florida's CCR handles death penalty appeals
ABA funds death penalty project
Death penalty law still tolerates ineqUities
DENMARK
Danish super-max far cry from U.S. counterparts
DEPARTMENT OF JUSTICE, U.S.
See: JUSTICE, U.S. DEPARTMENT OF
DEPO-PROVERA
Depo-provera treatment raises serious questions
DIET
Right to religious diet sought by Muslims in prison

DIET LOAF
"Diet loaf' one issue challenged in Arizona case
"Diet loaf' outlawed in Arizona settlement
A lighter look at the diet loaf
DISTRICT OF COLUMBIA
judge sets population cap at D.C. jail
D.C. panics over jail population crisis
Settlement reached in D.C. juvenile case
Alternatives only option for crowded D.C. system
DURAN V. ANAYA
.
Budget cuts don't excuse violations, says court
New Mexico seeks to elude obligati<;lns of consent decree

8/7

3/6
3/8
4/9
6/12
7/1
7/6
7/7
7/8
7/13
12/1
12/4
12/6
12/8
14/8
6/8

4/1
8/3

HAWAII
Settlement reached in Spear v. Ariyoshi
Expert panel negotiates settlement in Hawaii
HENDRICKSON V. WELCH
NPP, local ACLU obtain agreement in Maryland jail case

5/3
6/6
15/13

I
ILLINOIS
Lockdown conditions at Marion investigated
INMATE MARRIAGES
Supreme Court strikes down marriage restrictions

5/8
14/6

J

JAILS
National jail Project of the ACLU underway
Unusual practices found in Texas jails
Pretrial detainee rights at issue in Block v. Rutherford
Women in jail have special problems
Florida jail conditions challenged in Arias v. Wainwright
jail Coalition information packets
jail Coalition closes doors, reorganizes efforts
judge sets population cap at D.C. jail
Nat'l jail Project releases jail Status Report
D.C. panics over jail population crisis
ACLU inspects Montana jails
NIC studies jail suicides
NPP, local ACLU obtain agreement in Maryland jail case

1/1
1/8
1/9
2/9
3/1
3/9
4/2
5/6
5/12
8/8
10/9
11/12
15/13

FALL 1988

II

JAIL COALITION (NAT'L COALITION FOR JAIL REFORM)
Information packets available
Coalition closes, reorganizes efforts
JERRY M. V. DISTRICT OF COLUMBIA
Settlement reached in D.C. juvenile case
JUVENILES
Okla. juvenile system challenged in Terry D. v. Rader
Execution for juvenile crime challenged
Settlement reached in D.C. juvenile case

3/9
4/2
10/12

213
7112
10/12

K
KOREN, EDWARD I.
NPP lawyer discusses 18 years in prisoners' rights

16/12

L
LEGAL ACCESS
3/2
Lawyer access problems at Mecklenburg Corr. Ctr.
7/1
Florida opens death penalty appeals office
1211
The serious shortage of death penalty lawyers
LEGISLATION
1112
Texas legislature writes prison reform package
LEWISBURG PRISON PROJECT
12115
LPP distributes information booklets
LITIGATION
219,3112,4/12,5112,6116,7/16,8/14,9116,
NPP Highlights
10116, 11116, 12116, 14116, 15/16, 16/16
3/10
NPP Status Report released
1/8,211
Strategies for future prison litigation (2 parts)
8112
An expert reflects on changes in prison litigation
11/6
Evaluating 15 years of prison litigation
11/9
Litigation and compliance: judge discusses "Tombs"
example
13/2
Judicial commentary on prison cases
13/2
60s civil rights movement a catalyst for prisoners' rights
13/12
The expanding role of experts in prison cases
13/16
Lawsuits fundamental to prison reform
13/18
An inmate's view of prison reform through litigation
13/19
Inmate describes experience as class representative
13/22
The increasing cost, complexity of prison litigation
13/24
NPP Status report: chart
13/26
15 years of prison litigation: a timeline

M
MAGID, JUDITH
In Memory
MARION, ILLINOIS, U.S. PENITENTIARY
Lockdown conditions at Marion investigated
Examining the question of super-max prisons
MARYLAND
NPP, local ACLU obtain agreement in Maryland jail case
MAXIMUM SECURITY PRISONS
Examining the question of super-max prisons
Minnesota facility sets high super-max standards
Lockdown conditions investigated at Marion Federal Pen.
Danish sup~r-max differs from U.S. counterparts
MEDIA
Media often promotes vicious criminal justice cycle
MEDICAL CARE
See also: AIDS
NCCHC publishes health care standards
Correctional health care: past and future
Imprisoned mothers face extra hardships
New litigation targets medical care in women's prisons
Health professionals and the mistreatment of prisoners
MICHIGAN
NPP challenges Justice Dept. consent decree in Michigan
An update on the Michigan case
MINNESOTA
Oak Park Hts. sets high standards for super-max facilities

12

FALL 1988

512
5/8
4/1
15113

4/1
4/3
5/8
6/8
I 3/31

I 1/12
13/29
14/1
15/1
16/9
III
1218

4/3

MONTANA
ACLU inspects Montana jails
MOUNDSVILLE, WEST VIRGINIA PENITENTIARY
Disturbance sparked by uncivilized conditions
MUSLIMS
Muslims in prison seek religious recognition
Supreme Court decides O'Lone v. Estate of Shabazz
Effects of Supreme Court decision in O'Lone

10/9
7/13
8/3
14/6
15/8

N
NATION OF ISLAM
See: MUSLIMS
,
NATIONAL INSTITUTE OF CORRECTIONS
NIC to study jail suicides
NIC publishes "Research in CorrectioPls" series
NATIONAL JAIL PROJECT OF THE ACLU
National Jail Project of the ACLU underway
Jail Project releases Jail Status Report
NATIONAL PRISON PROJECT OF THE ACLU
Status Report released
New brochure on NPP available
N PP staff changes

NPP establishes AIDS Project
NPP releases AIDS Bibliography
60s civil rights movement a catalyst for prisoners' rights
The founding of the NPP
The NPP staff lawyers: who are they?
Law interns recall favorite moments at NPP
NPP Status Report: chart
Catching up with former interns
NPP staff, past and present
An inside look at the Prison Project
NPP marks 15 years with conference, celebration
NPP lawyer discusses 18 years in prison litigation
ACLU Handbook, The Rights of Prisoners revised
NEGLIGENCE
Supreme Court decides Daniels and Davidson
NELSON V. LEEKE
See: PLYLER ~ LEEKE
NEW MEXICO
Attorney general comments on Santa Fe prison riot
Budget cuts don't excuse violations, says court
New Mexico seeks to elude obligations of consent decree
NEW YORK
Examining community service alternatives: Bronx program
Litigation and compliance: judge discusses "Tombs"
example
Remembering the Attica uprising
A study of New York inmates with AIDS
NPP lawyer's work rooted in New York litigation and
Attica
NORTH CAROLINA
Examining community service alternatives: Repay, Inc.
Health professionals and a preventable death at Butner
BOP response to dE;ath of Vinson Harris

11/12
16/14
III
5112
3110
10/16
11/12,
12113,
14/14,
16/14
11/16
12113
13/2
13/5
13/12
13114
13/24
13/30
13/34
13/35
14/11
16/12
15/14

817

7/13
11/14
16/1
10/13
11/9

13/5
15/7
16/12

10/13
16/9
16/11

o
OAK PARK HEIGHTS
Minnesota super-max facility sets high standards
OKLAHOMA
Juvenile system challenged in Terry D. v. Rader
Looking back at landmark case: Battle v. Anderson
O'LONE V. ESTATE OF SHABAZZ
Effect of Supreme Court decisions in O'Lone and Safley
OVERCROWDING
S.c. settlement limits population, enforces standards
Hawaii settlement sets populations caps
Judge sets population cap at D.C. Jail

413
213
1011

15/8
511
513
5/6

Population reduction program in Tennessee
Population limits imposed by court in Rhode Island
D.C. panics over jail population crisis
Court orders S.C. to comply with population limits
Effect of I5 years of litigation on overcrowding
Judge discusses litigation and the "Tombs" case
Appeals court upholds pop. cap in South Carolina case
Lawsuits fundamental to prison reform
Prisoners' lawyers face critical issues
The effect of Rhodes v. Chapman on overcrowding
Agreement in Maryland jail case addresses overcrowding

8/1
8/5
8/8
9/4
11/6
11/9
11/13
13/16
13/22
14/4
15/13

p
PALMIGIANO V. DiPRETE (formerly PALMIGIANO V. GARRAHY)
Improvements evident in Rhode Island prisons
3/1
Order promises further relief in Rhode Island prisons
8/5
PAT SEARCHES
Muslims contest pat searches by female guards
8/3
PAROLE
13/21
Reforming federal sentencing and parole laws
Supreme Court decides Board of Pardons v. Allen
14/6
PENNSYLVANIA
. Private prison planned on toxic waste site in Pa.
5/10
Plans dropped for private prison on toxic waste site
6/11
PLYLER V. LEEKE (formerly NELSON V. LEEKE)
S.c. settlement limits population, enforces standards
5/1
9/4
Court orders S.c. to comply with decree
11/13
Appeals court upholds pop. cap in South Carolina case
PRETRIAL DETAINEES
1/9
Cell searches, contact visits argued in Block
PRISONER CORRESPONDENCE
14/6
Supreme Court decides Turner v. Safley
15/8
Effect of Safley on inmate-to-inmate correspondence
PRISONER VISITATION AND SUPPORT
5/2
PVS provides prisoners link to outside world
PRIVACY
1/9
Court says "hands off" in Block decision
PRIVATIZATION
1/6
Private firms venture into prison business
2/1
Legal implications of privatization
5/10
Private prison planned on toxic waste site
6/11
Private prison plans dropped at toxic waste site
13/29
Correctional health care: past and future
PROCUNIER V. MARTINEZ
14/6
Supreme Court rejects Martinez standards in Turner
15/8
Martinez and the effect of the Turner decision
PUGH V. LOCKE
Conrad: expert reflects on litigation and the Alabama case
8/13
Former NPP lawyer remembers the Alabama case
13/8
Nagel: reflections of an expert witness
13/13

R
RACISM
Racism in se"htencing extensive problem
Battle revealed racial discrimination in Oklahoma system
Review of Wilbanks' book on racism and criminal justice
Remembering the Attica uprising
Alabama case exposed evidence of racism
McClesky decision tolerates racial bias in death penalty
cases
RELIGION
Muslims in prison seek religious recognition
Supreme Court decides O'Lone v. Estate of Shabazz
Effects of Supreme Court decision in O'Lone
RHODE ISLAND
Litigation in Rhode Island brings change
Order promises further relief in Rhode Island prisons
RHODES V. CHAPMAN
Rhodes still presents litigators with critical issues
Analyzing the effects of Rhodes v. Chapman

2/12
10/1
11/10
13/5
13/8
14/8

8/3
14/6
15/8
3/1
8/5

RIOTS
Disturbances sparked by uncivilized conditions
Remembering the Attica uprising

7/12
13/5

5
SENTENCING
Racism in sentencing extensive problem
Sentencin~ Project publishes sentencin~ directory
Reforming federal sentencing and parole laws
Involving victims and offenders in the sentencing process
BJS public opinion study requires cautious interpretation
Sentencing Project publishes analysis c;>f NIJ study
SETTLEMENT AGREEMENTS
Parties move toward settlement in Arizona
S.C. settlement limits population, en(otces standards
Hard-fought settlement reached in Hawaii case
Revived settlement halts trial in Arizona case
Expert panel negotiates settlement in Hawaii
Settlement reached in D;C. juvenile case
SEX OFFENDERS
Depo-provera treatment raises quest!ons
SMOKING
Smoking in prison: a question of rights
SOUTH CAROLINA
S.c. settlement limits population, enforces standards
Execution in S.c. for juvenile crime challenged
Court orders S.c. to comply with decree
Appeals court upholds pop. cap in South Carolina case
SOUTH DAKOTA
NPP lawsuit challenges violations at penitentiary
Inmate describes experience as a class representative
SPEAR V. ARIYOSHI
Settlement reached in Hawaii case
Expert panel negotiates settlement in Hawaii
SPECIAL MASTERS
Special masters aid in compliance efforts
Special master appointed in Tennessee
Letter to editor: Special Master's role in Tennessee case
Judge discusses pros and cons of special masters
Role of special masters: an issue ripe for debate
STANDARDS
Health care standards published
STATUS REPORT
. National Prison Project Status Report released
SUICIDE
NIC to study jail suicides
SUPREME COURT, U.S.
Court says 'hands off' in Block v. Rutherford
Court upholds death penalty for juvenile crime
Recent prisoners' rights decisions by Supreme Court
Recent prisoners' rights decisions by Supreme Court
Effect of Court's decisions in O'Lone and Safley
SWEDEN
Swedes confused by U.S. death penalty

2/12
12/13
13/21
14/9
15/10
15/14
12/3
5/1
5/3
5/4
6/6
10/12
4/1
12/12
5/1
7/13
9/4
11/13
4/6
13/19
5/3
6/6
6/9
8/1
8/2
11/9
13/15
11/12
3/10
11/12
1/9
7/13
8/7
14/6
15/8
4/9

T
TENNESSEE
Court orders spur prison reform in Tennessee
Letter to editor: the Special Master's role in Tennessee
TERRY D. V. RADER
Lawsuit challenges Oklahoma juvenile system
TEXAS
Unusual practices found in Texas jails
Legislature develops prison reform package
TURNER V. SAFLEY
Effect of Supreme Court decisions in O'Lone and Safley

8/1
8/2
2/3
1/8
1/12
15/8

13/22
14/4

FALL 1988

13

I.:·.:.•· ·

Ii

-continued from page eight
without a hearing, despite the fact that
the consequences are similar to or more
severe than those imposed upon prisoners placed in disciplinary segregation.
Some of the prisoners were led to
believe that they were suffering from
AIDS, when in reality they had at most
tested positive for exposure to HIV. No
program exists to educate the prisoners
about the differences between testing
positive and actually having AIDS. Most
suffer from severe emotional distress
and depression after being informed that
they have tested positive. The idleness
resulting from the policy of total segregation aggravates the depression that already exists because of the prisoners'
misguided belief that they have a fatal
disease.
The failure by the Alabama Department of Corrections to educate and
counsel continues, despite warnings by
leading medical authorities that overwhelming psychological devastation can
result from an AIDS diagnosis, and calls
for counseling to be an essential component of HIV testing.
By housing these prisoners in the
"AIDS unit," the prison immediately
identifies, and effectively publicizes to
other prisoners and staff, those prisoners
who have tested positive. Lack of concern for confidentiality is also demonstrated by officials who permit the casual
public disclosure of the names of those
who test positive.
These conditions persist despite the
overwhelming medical evidence that
AIDS is not spread by casual contact, including breathing the same air, sneezing,
coughing, sharing razors or eating utensils, touching the same objects, playing
sports together, shaking hands, hugging
or kissing. AIDS is only spread specifically through contact with HIV-infected
blood or semen, or perinatally (mother
to unborn child).
Upon release, these prisoners will
be stigmatized as AIDS carriers. Such a

Prisoners at Tutwiler stare from behind locked doors
stigma is likely to affect their ability to
find a job, housing or insurance, among
other things. In addition, the stigma of
AIDS isolates them in their own community. One of the HIV positive inmates
likened herself and the others to Hester
Prynne in The Scarlet Letter, who wore
the scarlet letter "A" to signal to the
community that she was to be ostracized. Now, she says, that scarlet letter
"A" stands for AIDS.
This testing and its consequent segregation raise a wide variety -of legal issues, some of which have never been litigated. Harris challenges both mandatory
testing and segregation on a number of
legal grounds.
Mandatory Testing
The challenge to mandatory testing
in Harris is based on three legal arguments. First, the prisoners allege that
the mandatory testing program violates
even the limited Fourth Amendment
protections available to prisoners. Sec-

u
U.S. DEPARTMENT OF JUSTICE
See: JUSTICE, U.S. DEPARTMENT OF
U.S. V. MICHIGAN
NPP challenges justice Dept. consent decree
An update on the Michigan case
URINALYSIS
Urinalysis not always reliable

14 FALL 1988

ond, they allege that mandatory testing
violates their constitutional right to privacy. The Supreme Court in Hudson v.
Palmer, 468 U.S. 517 (1984), held that
prisoners receive only limited protection
against searches; in Bell v. Wolfish, 441
U.S. 520 (1979), the Court made clear.
that even those searches must be conducted in a reasonable manner. The
blood test is an unreasonable search in
that it is an invasion of bodily privacy
and a public dissemination of confidential
medical information. The unreliability of
the blood test prevents it from significantly increasing prison security.
The prisoners' second argument is
that the inevitable dissemination of this
stigmatizing information violates their
right of privacy. Mandatory testing, by
its very nature, is a form of forced disclosure, thus raising the question of to
whom the results of the test are to be
disclosed.
The Supreme Court's holding in
Houchins v. KQED, 438 U.S. I, 5, n.2

VOTING RIGHTS
Ex-offenders find barriers to voting rights

313

w
III
12/8
9/13

V
VICTIMS' RIGHTS
PACT publishes VORP Network News
Involving victims and offenders in the sentencing process
VIRGINIA
Lawyer access a problem at Mecklenburg Corr. Ctr.
Early prisoner advocacy efforts in Virginia
An inmate's view of prison reform through litigation

of isolation unit

12/15
14/9

312
13/3
13/18

WEST VIRGINIA
Moundsville disturbance sparked by uncivilized conditions
WHITLEY V. ALBERS
Supreme Court deCides use of force case
WOMEN
Women in jail have special problems
Calif. ACLU opens Women Prisoners Rights Project
Prison not always the answer for female offenders
Alternative programs for women few and far between
Pursuing equal treatment for women in prison
The connections between feminism and justice
Imprisoned mothers face extra hardships
New litigation targets medical care in women's prisons

7/12
8/7

2/9
7/10

11/1
12/9
13/26
13/33
14/1
15/1

(1978) (plurality opinion), was based on
the assumption that prisoners do retain
some right to privacy. This right to privacy in their person is to be balanced
against the legitimate security interests
of the prison. See Bell, supra. The privacy interest implicated in Harris is the
right to avoid governmental dissemination of stigmatizing information. The
leading case on this privacy right,
Whalen v. Roe, 429 U.S. 589 (1977), upheld the constitutionality of a reporting
statute requiring identification of all individuals to whom narcotics had been prescribed. The statute, however, was upheld only after careful analysis of the
safeguards against public disclosure built
into it.
Thus, any program of testing must
at least be balanced by reasonable precautions to protect the confidentiality of
the results. Forced disclosure must also
be limited if it is to accord with the
right of privacy.
The degree of protection which
courts will afford to the HIV positive
prisoner's right of privacy remains an
open question. An example of a case in
which a court prOVided little protection
to prisoners' right of privacy is State De-

partment of Correction v. Public Employees
Council 82, Civil Action No. 8462 (Del.

Ch., 1987). In that case, correctional
staff sought to obtain lists of all HIV
positive inmates in their system. The suit
was brought after several inmates were
voluntarily tested with the guarantee of
confidentiality. Correctional officers
sought access to the results of these
tests on the basis of a provision in their
employment contract that they would
be notified of all names of inmates suspected of having communicable diseases.
An arbitrator determined that the Department of Corrections had to allow
access to the test results, and the court
upheld the arbitrator's decision.
A recent case involving the casual
disclosure of a prisoner's positive test
for the AIDS virus illustrates, however,
that prisoners do have a right to privacy
in information about their medical condition. In Woods v. White, No. 86-C-70 1C, WD Wis., July 27, 1988, the court
held that a prisoner "retains his right to
privacy, although he is incarcerated. The
right to privacy is not terminated by
conviction for a crime." The casual disclosure of a prisoner's positive test results to non-medical personnel was held
to violate that prisoner's constitutional
right to privacy. Additionally, the court
noted "that public disclosure of test results for the AIDS virus may implicate
the other aspect of the right to privacy
mentioned in Whalen: the right of autonomy in making certain fundamental
decisions pertaining to such matters as
family, procreation, and medical treat-

ment." Woods, Slip Op. at 5, n.!.
While there is, as yet, no consensus
on the issue, recognition of the importance of privacy safeguards is growing as
understanding, awareness and experience
of AIDS increases. Two prison cases in
which mandatory testing has been prohibited have been based on state laws
prohibiting disclosure of test results
without the informed consent of the
subject. See Dean v. Bowie, Civil Action
No. 87-4745 (Suffolk Sup. Ct., Mass.)
(trial judge ruled that an inmate accused
of scratching and spitting at a guard
could not be involuntarily tested to
learn if he was HIV positive. The court
took note of strong medical evidence
against transmission of HIV through saliva); Barlow v. Superior Court, 236 Cal.
Rptr. 134 (Cal. App. 4th Dist. 1987)
(court invalidated a search warrant authorizing HIV testing of defendant
charged with biting a police officer while
resisting arrest)?
One example of federal legislation
coming to grips with the confidentiality
issues raised by testing is the recently
enacted Veterans Benefits and Services
Act.s The legislation deals with confidentiality of information, discrimination
against persons who have tested positive
for exposure to HIV, educational efforts,
and voluntary versus mandatory testing.
More recently, the U.S. House of
Representatives approved the Fair Housing Act, which prohibits discrimination
against people with disabilities, including
carriers of the AIDS virus. Heightened
awareness of the problems created by
mandatory testing has been provided by
the Report of the President's Commission on AIDS which calls for voluntary
testing and anti-discrimination laws. 9

Medical Care
The plaintiffs in Harris allege that
the lack of medical care in the AIDS unit
violates the standards established by the
Supreme Court in Estelle v. Gamble, 429
U.S. 97( 1976). They claim that they are
being treated with deliberate indifference to serious medical needs and therefore subject to cruel and unusual punishment. For example, the prisoners claim
that the prison doctor who visits the
men's AIDS unit refuses to touch the
prisoners while making his examination.
The prisoner, of course, is unable to
'Summaries of these two cases taken from Hammett, "AIDS in Correctional Facilities: Issues and
Options," National Institute of Justice, (April
1988), p. 106.
"Veterans Benefits and Services Act. Act of May
20, 1988. Pub. L No. 100-322, 1988 U.S. Code
Congo and Admin. News (102 Stat.) 487, to be
codified at 31 USC 10 I, et seq.
'Report of Presidential Commission on the Human
Immunodeficiency Virus Epidemic, Oune 24, 1988).

seek medical care from another doctor
outside the prison walls.

Segregation
Alabama's policy of segregation of
HIV positive prisoners is challenged in
Harris on numerous grounds. First, plaintiffs argue that the conditions of segregation consti);ute cruel and unusual
punishment in violation of the Eighth
Amendment. Second, the suit claims that
the automatic transfer of all HIV positive
prisoners to the segregation unit denies
them due proces§. Third, the reduced or
eliminated access of segregated prisoners
to law libraries denies these prisoners
the constitutional right of access to
courts. Fourth, the discriminatory treatment of HIV positive prisoners, the irrational denial of access to programs in
which they could participate and from
which they could benefit, is alleged to
violate Section 504 of the Amended Rehabilitation Act of 1973. 10 Finally, attorneys for the prisoners allege that the
discriminatory treatment of the HIV
positive prisoners denies them equal
protection of the law.
Harris is the first case to offer such
a broad-based challenge to a policy of
segregation, where all those who test
positive for HIV antibodies are separated
from the rest of the prison population.
In addition, it will be the first case in
which expert testimony will be presented and used to show the lack of any
medical or penological justification for
segregation of those testing positive. I I
AIDS still represents a very new
phenomenon. As scientific knowledge
concerning AIDS advances, and as it is
brought before the courts, the decisions
of the courts are bound to be affected.
Most of the legal theories on which
the Harris suit is based will be familiar to
those experienced in prisoner civil rights
litigation, although these legal theories
have not been fully tested or explored
in the context of segregation of HIV
positive prisoners. One legal theory that
is not yet been tested is the Section 504
cause of action. Harris contends that discriminatory treatment of HIV positive
prisoners violates Section 504 of the
Amended Rehabilitation Act of 1973. 12
-continued on next page
'°29 U.S.c. §794 (as amended by the Civil Rights
Restoration Act of 1987).
"In Maberl)' v. Martin, c.A. No. 86-34I-CRT
(E.D.N.C. 1987), in a pro se suit, an inmate raised
the issue of mandatory testing and separation of
HIV positive inmates. In March of 1987, the defendants' motion for summary judgment was
granted.
12For discussions of Section 504's application to
discrimination against victims of AIDS and those
who test positive for the HIV virus, see generally,
"Note, Protection of AIDS Victims from Employment Discrimination under the Rehabilitation Act,"

FALL 1988

15

te

-continued from previous page
The Rehabilitation Act prohibits discrimination against handicapped individuals by
anyone receiving federal financial assistance. In School Board of Nassau County
v. Arline,13 the Supreme Court held that
individuals who suffer from a contagious
disease are covered by the Act. In Arline,
the plaintiff had tuberculosis. The holding
in Arline was recently applied in favor of
a California teacher with AIDS seeking a
preliminary injunction reinstating him to
classroom duty.'4 As yet, Section 504
has not been used as a basis for challenging the treatment of HIV positive
prisoners.
One case involving a context
closely analogous to prison, however, is
Doe v. Centinela Hospital, No. 87-2114
(CD.Cal. June 30, 1988). In Centinela, an
individual was excluded from an alcohol
and drug rehabilitation program because
he tested positive for the presence of
the HIV. Participants in the program,
like prisoners, lived under constant supervision in a controlled environment.
The sponsors of the program, like prison
officials, expressed concern that, without
screening, participants would risk exposure to the virus, because the environment is conducive to sexual encounters
between participants. The court ruled
that the individual in this case who
tested positive was perceived to be
handicapped within the meaning of Section 504, but declined to rule prior to
trial on whether the individual was otherwise qualified to participate in the
program and whether reasonable accommodations had been made for him.
1987 U. of III. L Rev. 355 (1987); Fagot-Diaz, "Employment Discrimination against AIDS Victims:
Rights and Remedies under the Federal Rehabilitation Act of 1973," 39 Labor LJ. 148 (March 1988);
"Comment, Running from Fear Itself: Analyzing
Employment Discrimination against Persons with
AIDS and Other Communicable Diseases under
Section 504 of the Rehabilitation Act of 1973," 23
Willamette L Rev. 857 (1987); Note, Asymptomatic Infection with the AIDS Virus as a Handicap
under the Rehabilitation Act of 1973, 88 Col. L
Rev. 563 (198S).
13
170 S. Ct. 1123 (1987).

"Chalk v. United States District Court, Central District of California, 832 F.2d 1158 (9th Cir. 1987)
(order), 840 F.2d 701 (9th Cir. 1988) (opinion).
Other published opinions dealing with AIDS discrimination challenges outside the prison setting
based on §504 are Thomas v. Atascadero Unified
School Dist, 662 F. Supp. 376 (C.D.Cal. 1987) (the
court granted a preliminary injunction prohibiting
the school district from excluding a child with
AIDS from the classroom); Ray v. School Dist of
Desoto County, 666 F. Supp. 1524 (M.D.Fla 1987)
(preliminary injunction granted prohibiting the district from excluding three seropositive brothers
from the classroom); Dist 27 Community School
Board v. Board ofEduc., 502 N.Y.S.2d 325 (Sup.Ct.
1986) (exclusion of AIDS victim because oftheoretical pOSSibility of transmission of AIDS in classroom held to violate §504).

16

FALL

1988

If it was true in Centinela that the
plaintiff was handicapped by perceptions,
how much more true is it in Harris that
the plaintiffs are handicapped by perceptions? Categorically denied access to
normal rehabilitation programs, forced
to undergo humiliating and degrading

procedures totally unrelated to any legitimate medical concerns, reqUired to
wear masks and denied access to courts
and legal materials, the plaintiffs are victims of the "myths and fears" of prison
officials. III

Minnesota's Newest Prison
Provides Humane Environment
Judy Greenspan
Mean faces--darker mood, pale faces
in shadowed rooms.
Metal door slamming, tramping of the
feet. ..
Voices on a loud speaker-lock in, lock
down to the beat
Dirt everywhere--cigarette butts and
paper ...
candy wrappers, plastic, food.
Some things that would shame the
maker.'
Sandwiched between two public
schools, the town swim club and a row
of houses sits the Minnesota Correctional Facility at Shakopee, Minnesota. If
you travel down that winding suburban
road too fast, you might miss it. It looks
like a junior college or high school campus rather than a prison. Glaringly missing are the guard towers, the heavily
fortified perimeter, the uniformed armed
guards, the double fence or wall that encircles most penal institutions. In fact,
there is no wall or fence around
Shakopee.
The Minnesota Correctional Facility-Shakopee is the state's newest prison
and the only institution housing women
prisoners. The prison, which opened in
1986, sits in a suburban neighborhood
approximately 15 miles from the Twin
Cities. The seven gray and brown brick
buildings include an administration building which houses a gym, dining room
and visitor's area, three minimum/medium security dormitory style living
units, one high security liVing unit and
one independent living center for
women to be released in the relatively
near future.
A walkway surrounds the correctional facility and crisscrosses an attractive courtyard between the buildings.
Located in the middle of the courtyard
is a swing set for children visiting their

Judy Greenspan is the Prison Project's AIDS
information coordinator.
'Julie Barnes Wilt, "Prison ... From the Inside,"
The Maryland Correctional Institution for Women,
This is It! The Last Stop!", Oune 1988).

mothers on the weekends. Newly
planted trees line the pathways.
The interior of the administration
building (which also houses the educational and job training centers) is
brightly painted and tiled, and carpeted.
Indeed, almost the entire prison including the main dining room is carpeted,
thereby reducing noise levels and providing a warm atmosphere. The rooms
are sunny and clean and filled with oak
chairs, tables, and couches (handmade at
one of the Minnesota men's correctional
facilities). A toy-equipped children's playroom is adjacent to the vistor's center.
The library contains a large collection .of
feminist literature focusing on the problems of motherhood, battered women
and child abuse. A large law section
helps to fill the library.
The three medium security liVing
units, surprisingly named for Susan B.
Anthony, Harriet Tubman and Eleanor
Roosevelt, are modular-style bUildings
where the women are housed in single
rooms. Each room has a wooden door.
The units contain a large kitchenette
(equipped with a microwave oven,
stove, and refrigerator) and living room
area. There is a bathtub in each wing of
the unit and every room has a bathroom
equipped with a toilet separated from
the living area by a door (a rarity in
most prison cells).
The place to be is the Independent
Living Center, an attractively designed
unit of apartments for women who have
attained a Level 4 security rating (minimum or community) and are awaiting
release. The apartments have separate
bedrooms, liVing rooms and kitchen-dining areas. Here the women are able to
leave the prison grounds twice a month
to shop for groceries. There is supervision only at night and the women are
able to let themselves in and out during
the day and at night until 10:30 p.m.
The Higbee unit houses those
women in administrative detention, segregation or protective custody. This
building, with its metal cell doors, cagedin recreation yard and severely limited
outside hours, is the closest to real

•

prison life. However, even women in
segregation status are permitted to congregate in dayrooms for part of the day
based upon behavior in the unit.
The food service area of the cafeteria (where both prisoners and corrections staff eat) is spotless and equipped
with modern industrial sinks and
counters. The cafeteria is spacious, clean
and comfortable. The meals are more diversified and healthy than the average
prison meal program. A salad bar is offered twice a day. Prisoners are issued
weekly menus and must sign up for each
meal. Women are given the option of
eating either in the unit or in the cafeteria. Unit eating, however, is discouraged
by the prison staff, as those meals tend
to consist of "junk food."
Too hot in summer, too cold in winterwait for this, run for that, clean your
cage, but with what?
Where's the mail? Where's a book?
I don't know why don't you 'just" 100k?2

In mid-June 1988, at the time of
this author's visit, there were 128
women incarcerated at the Shakopee
correctional facility. Of these women,
32% were Black, 9% were Native
American, and 57% were white. Over
46% of the women were convicted of
theft or forgery, 10% had drug related
offenses, and 20% were convicted of
homicide. The women's prison has a capacity of 132. According to Jacqueline
Fleming, the superintendent with a 30year background in mental health and
social work, if the institution's population were to reach I35, they would
place more women in work release
positions.
When the women first come to the
institution, they are all classified Level 3,
regardless of the crime for which they
were convicted. Warden Fleming explains that at Shakopee, the women are
not prejudged, and they can move up
and down the classification scale based
on their behavior. This policy stands in
sharp contrast to most prison classification systems th~t start all prisoners at
the lowest level.
As in most prisons, the women entering the institution are expected to
participate in prison work programs. At
Shakopee, women prisoners put in 180
hours of work in prison-related jobs, Le.,
food service, grounds maintenance and
general clean-up. After completing this
initial work period, the women are then
free to move into other areas such as
sewing, telemarketing, data processing,
and an electronic office machine program. The women earn between $.50
-continued on next page
'/d.
FALL 1988

---------------------.-.u

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

fi

~ lK'1

j["f

r

if:

17

r m ....".uiiiiiiii
.

iiiiiII...

-continued from previous page
and $5.50 an hour (not necessarily minimum wage, but more than most prisons
pay), depending upon the position. The
prison so far has been unable to recruit
sufficient job orders to provide steady
employment for the women. Warden
Fleming freely admits that job opportunities are lacking and should be expanded
to include other fields.
In mid-june, there was no work in
the data-processing shop, and most
women were participating in other jobs.
Some had joined the telemarketing
group and were busily selling tickets to
an upcoming country music concert.
Groups of women are put to work outside clearing away rocks and pebbles
from the prison property. The women
are expected to put in 55 hours of
work, education and programming every
two weeks. The typical work day begins
at 7:30 a.m. and ends around 3:00 p.m.
A little after 3:00 p.m., dorm business
meetings are held in the housing units,
and the daily count is taken. The women
prisoners spend their evenings attending
an assortment of workshops, meetings
and recreational programs. There is also
some work and visits at night.
Since many of the women in the
Shakopee correctional facility are mothers, a great deal of the programming is
geared toward them. A weekly "pOSitive
parenting support group" is held for all
those interested. Weekly classes on understanding relationships and image improvement are scheduled. Perhaps the
most humane and innovative part of the
parenting program is the institution's
policy of allowing prisoners' children to
spend the weekend at Shakopee. Each
mother is housed in a private room with
a pull-out trundle bed for her children.
Daughters 14 years-old or younger and
sons 1I years-old or younger are allowed to spend the weekend with their
mothers.
Some mothers who are eight
months pregnant are sent to a halfway
house for the final duration of their
pregnancy,.The mother is given three
months to make arrangements for the
care of her child outside the institution,
and she is then returned to Shakopee.
Chemical dependency is another
area addressed by the programming staff.
Weekly education programs are supplemented by support groups for the
women involved in this program.
A battered women's support group
is also scheduled on a weekly basis, as
well as a group for women who have
abused their children. Other group programs offered include a weekly Black
culture seminar and an Indian culture
group. Native American women at the
prison have set up a sweat lodge on the
lawn behind one of the housing units but
18

FALL 1988

Each mother is housed in a
private room with a pull-out
trundle bed for her children.
are having difficulty locating Native eiders to perform the traditional Indian
ritual.
Ladina Montgomery, a young Black
woman liVing in the Susan B. Anthony
housing unit, speaks honestly about her
experiences at Shakopee. Montgomery,
who is scheduled to get out at the end
of june, says she feels Shakopee prepared her for her release. "You know
prison is prison and sometimes I don't
agree with the staff but I don't let that
get in my way. I think this place does a
lot for your self esteem," the young
mother explains. Montgomery attends
many of the programs designed for
young mothers, in addition to going to
Weight Watchers and career development groups. "This place has helped me
pull my life together," she says.
jackie Fleming sits behind her desk
in the warden's office in the administration building. Warden Fleming was also
in charge of the old abandoned women's
prison across the street. She is personally responsible for the many changes
that have taken place in the prison. She
explains that when she first became warden in 1970, she was struck by the silence of the old prison. No one was
talking to each other. There were many
outmoded rules and policies. Women incarcerated at the facility could not wear
pants, because that meant they were
going to escape. Fleming put together a
committee of corrections staff and prisoners to change all this. Before long,
many of the women were wearing pants
and communication was greatly
improved.
Fleming is unique in the corrections
field because her original training was in
mental health, not criminal justice. She is
proud of Shakopee but speaks frankly
about some of its major problems, problems she is not sure she can solve.
"If I could do anything, I would
have some kind of perimeter security
around the prison," Fleming says. Because of the lack of fencing around Shakopee, there is little real freedom of
movement for the women prisoners. .
The women are expected to move from
building to building only at certain times,
usually on the hour and half-hour. Staff,
which Fleming complains is already
short-handed, is tied up administratively
dealing with the controlled movement.
"I don't want a wall, but if we had some
electronic security system, the women
could be freer and the staff could relax,"
she explains. The large residential community around the prison is also op-

posed to the construction of any walls
or visible fortified perimeters.

2-5170. Written policy and procedure
prOVide that staff regulate inmate movement (DetentionEssential, Holding-Essential)3
Many of the women complain about
the lack of' free movement in the institution. To them, Shakopee seems too secure. Several federal prisoners now
housed at Shakopee (Minnesota, which in
the past has ~arely filled its state prisons
to capacity; routinely rents space to the
Federal Bureau of Prisons) want the
freedom of movement available in the
larger, more heavily guarded federal
institutions.
Sharon Anderson, the editor of the
Shakopee prison newsletter, The Reflector, is a federal prisoner who has been
incarcerated both across the street at
the old women's prison and currently at
the more modern facility. Anderson has
seen a lot of changes happen at the institution. She says she often longs for the
more informal, "homey" atmosphere of
the old institution. Although she is quick
to add that the new one has more modern conveniences and better
programming.

Looking back to my times of incarceration across the street, a number of
important things have seemingly fallen
by the wayside to . . . a new modern
facility.

***
Large population necessitates tightening of security and more paper work
to be handled.
. . . Staff always had time to sit down
and have a cup of coffee. .. . or discuss
personal problems. '4
When Fleming first began as warden, the old institution was smaller, allowing more contact with the prisoners.
"Women could always come down to
my office and speak with me. I was
more accessible," she says. Now, there
are several locked doors that prisoners
have to get through to visit Warden
Fleming. The superintendent, who is in
the midst of preparing Shakopee for accreditation by the American Correctional Association (ACA)(it is the only
Minnesota correctional facility not accredited), regrets the depersonalization
of the new, larger institution. Because of
'Standards for Adult Local Detention Facilities,
American Correctional Association, 2nd ed.,
(April 1987), p.46.
'Excerpted from "Reflections by Sharon AndersOn," appearing in The Reflector.

the accreditation process, occuring at
the same time as the tedious preparation
of her annual budget, she has been overwhelmed with work. Her assistant has
also been consumed by the upcoming
audit.
Fleming, who is called "Jackie" by
just about everyone at the correctional
facility, regrets that the programming is
inadequate for the women's needs. She
very much wants to expand the educational and job training centers of the institution, but is hampered by lack of
funds.
Shakopee is suffering from a population explosion. The institution is operating at or beyond capacity most of the
time. Because of its reputation for quality programming and a humane approach
to incarceration, Fleming says judges are
sending more women to the institution,
including short-termers--women who in
the past would be given probation and
returned to the community. Fleming says
programming doesn't work for women
who are serving such short terms.
There's not enough time to help them,
and Shakopee is becoming more and
more crowded.
Another problem that the warden
is now wrestling with is a staff shortage
and the difficulty in hiring and retaining
Black, Latin and other minority correctional counselors (the Minnesota term
for corrections officers). There is a frequent turnover in counselor staff. Staff
shortages haye accounted for shorter
gym hours and fewer arts and crafts
workshops. It is tragic to see the modern gym equipped with the latest in universal equipment, volleyball and basketball facilities and a small bowling alley,
locked up most of the day because of
staff shortages and conflict with other
program activities. The women prisoners
complain bitterly about the restricted
gym time.
Several of the Black and Native
American women point out that the
corrections staff is almost all white and
that their concerns are not being dealt
with adequately. Fleming says she has
had difficulty hiting minority staff and is
aware of the problem.

2-5350. Written policy and precedure
specify the personal property
inmates can retain in their possession. (Detention-Essential,
Holding-EssentiaW
Shakopee is a young institution,
possibly the most decent and humane
prison in the country for either men or
women. What permanent changes ACA
sStDndards far Adult Local Detention Facilities,
American Correctional Association, 2nd ed.,
(April 1987). p.92.

Bara/dini v. Meese

Court Denounces Practices at
Lexington Control Unit
Julia Cade
The follOWing is a summary of the
facts submitted as evidence and compiled
by several organizations which investigated
the High Security Unit at Lexington,
Kentucky.
Nine electronically controlled gates
slammed shut behind you descending
into the underground High Security Unit
(HSU) at the Federal Correctional Institution in Lexington, Kentucky. This small
prison-within-a-prison, designed for
repression, opened in October 1986.
The first three women placed in the unit
were assigned there by the Bureau of
Prisons (BOP) because of their leftist
political affiliations-denied the rights
and priVileges of general population
without any precipitating disciplinary incident, without any written reason,
without any hearing. The only way for
these women to get out of the Unit was
to renounce their political beliefs, serve
the greater portion of 40-year or more
sentences, or die.
Surveillance cameras mounted in
every room and hallway zoomed in and
out, recording every activity-including
a view of the shower area. Male staff
stood immediately outside the shower
for "security" purposes-a shower
which did not even have a curtain until
the National Prison Project intervened
in July 1987 on behalf of the women. To
escape the eyes of the male staff the

Julia Cade is a paralegal and public information assistant with the National Prison
Project
accreditation will bring to the institution
remain to be seen; however, it already
has led to restrictions in the women's
lives. ACA accreditation requires strict
control measures over prisoners' personal property. During the NPP visit,
both prisoners and staff were immersed
in an agonizing count of each woman's
personal belongings. Anything over the
count has to be shipped from the institution to friends and relatives.

I am seeing the progress now as a
federal transferee from LeXington, Kentucky and that institution was not at all
a humane place!
So pardon me if I don't complain
about a few petty rules or controlled
movements! I can handle every rule here

women would either shower with their
clothes on or not bathe at all. At times
the women would choose to bathe in a
mop sink in the laundry room for "privacy" and, in thl( winter, for warmth.
For one three-month time period,
the staff banged on the doors and gates
clanged throughout the night, depriving
women of sleep. Some of the women
would use their hour in the exercise
yard, their only chance to be outdoors,
to lie down and nap during the day. Until the intervention of groups like the
National Prison Project in July-August,
1987, the prisoners were strip-searched
every time they came from the exercise
yard; then the strip-searches became
random. The effect was the same: the
women had to decide whether to exercise and chance being strip-searched, although double fences, a camera and a
guard secured the yard. In spite of the
fact that the women were required to
remain in shackles while visiting the
prison dentist or doctor, they were frequently subjected to a strip-search after
being returned to the HSU.
The women were stripped of the
personal belongings allowed in other
federal prisons and issued a khaki culottes uniform.
Recreational and programming staff
developed no personal relationships with
the women; they dropped off materials
and then left the unit. Women's religious
beliefs were ridiculed by staff, including
the prison chaplains.
The unit is small, stark and self-con-continued on next page

because at least I'm treated as a person
and called by my first name. 6
Almost twenty years ago, Jackie
Fleming brought a bold non-corrections
perspective to the Minnesota women's
prison, an approach that greatly changed
the institution. Shakopee again needs a
fresh, innovative shot in the arm, one
that can transcend both the administrative bureaucracy and the likely effects of
accreditation. Despite its weaknesses
and problems, however, Shakopee is an
example of a humane approach to corrections and imprisonment, one that
should be followed in all prisons and jails
across the country. III

·'d.
FALL 1988

19

-continued from previous page

tained, with room for 16 prisoners. Only
seven women have occupied the unit
since it opened in October 1986. Visitation was restricted. Only one woman
could receive a visit, whether social or
legal, at anyone time; due to the administration's scheduling errors, women
would have their visitors, including lawyers, refused. On one occasion, the
women were told to choose among
themselves which lawyer would visit
when the administration had scheduled
two.
One attorney who visited her client
in the HSU described the experience as
the sensation of "being buried alive."
The women felt they were in an experimental prison with the intent to break
their spirit and personal identity--or
cause them to kill themselves out of
desperation.

* * *
In March 1988 the National Prison
Project, the Center for Constitutional
Rights, People's Law Office, Elizabeth
Fink and Mary O'Melveny, both attorneys in private practice, brought suit
against the federal Bureau of Prisons on
behalf of three of the five women then
confined in the HSU at FCI-Lexington in
Bara/dini, et 0/. v. Meese, et 0/.* As a result of discussions between the National
Prison Project staff and Bureau of Prison
officials during the Fall of 1987, some
changes in the unit were made but it
*Baraldini v. Meese.

20

b

FALL 1988

Slip opinion at 30.

Plaintiffs Sylvia Baraldini and Susan Rosenberg under the watchful eye of the video camera in the
Lexington High Security Unit

1..

was too little, too late. The Bureau refused to end the small group isolation of
the women and to reassign prisoners to
general population who had been placed
in this unit for their political beliefs. A
preliminary injunction was requested due
to the emergency nature of the situation: correctional psychologists advised
the attorneys and prisoners that the deterioration of the physical and mental
conditions of the women was lifethreatening.
On July 15, 1988, Judge Barrington
D. Parker ruled that the criteria for assignment to the unit were unconstitutionally vague and overbroad. He also
ruled that, "Baraldini and Rosenberg
were singled out and placed in the High
Security Unit for their alleged past connections with leftist groups promoting
ideas that some government officials did
not favor." He granted declaratory and
permanent injunctive relief.
"It was a victory," said Sylvia Baraldini. "It acknowledged the political nature of our treatment."
Susan Rosenberg, one of the other
plaintiffs granted relief, mirrored Baraldini's feelings: "The most exhilarating moment was when the judge said, 'You
can't treat human beings like that!' I
started to cry in the courtroom. I felt
there was recognition by someone in
power that what we were saying was
right. His ruling is important because it
recognizes that there are people in
prison in this. country for their political
activities."
Judge Parker enjoined Attorney
General Edwin Meese, along with BOP
Director Michael Quinlan and various
BOP officials, from further violating prisoners' First Amendment rights of political affiliation and belief. He directed
them to designate and to transfer plaintiffs Baraldini and Rosenberg from the
HSU to the general population of an appropriate federal correctional institution.
Judge Parker further enjoined the
BOP from considering any prisoner's
past political associations or personal political beliefs in assignment to prison facilities; specifically the medium-high
security facility recently opened in Marianna, Florida, and developed to replace
the High Security Unit in Lexington.
"It is one thing," wrote Judge Parker, "to place persons under greater security because they have escape histories
and pose special risks to our correctional institutions. But consigning anyone
to a high security unit for past political
associations they will never shed unless
forced to renounce them is a dangerous
mission for this country's prison system
to continue."
While denying relief on the Eighth
Amendment claim because of the imminent completion of the medium and high

Despite New Laws, Juveniles
Still· Locked in Adult Jails
Russ Immarigeon

"The Council of judges of the National
Council of Crime and Delinquency ...
concludes that it is not appropriate to
incarcerate minors with adults . . . ample
evidence [exists] of the dangers faced
by minors who are detained in jails or
lockups for adults. ... fT]he position of
the Council of judges is that state laws
and local practice should prohibit the incarceration of iuveniles in jails and lockups for adults.
-NCCD Council of judges, 1987
The NCCD Council of Judges' support for removing all juveniles from
adult jails and police lockups is the latest
in a long series of policy statements on
this matter. For the past 15 years, state,
local and federal officials, spurred on by
citizen and legal advocates, have been
trying to abolish the incarceration of juvenile offenders in these facilities. By
December 1988, according to the law,
all 52 states and territories receiving

Russ Immarigeon, a regular contributor to
federal funding through the U.S. Office
the NPP JOURNAL, is the director of pub- of Juvenile Justice must be in full complilic policy research for the Maine Council of ance with the 1980 amendments to the
Churches' Criminal justice Committee.
1974 Juvenile Justice and Delinquency
'The 12-member NCCD Council of Judges is
chaired by The Honorable William J. Brennan Jr.,
Associate Justice of the U.S. Supreme Court, and
by The Honorable Frank Orlando, of the Broward
County (Fort Lauderdale), Florida Circuit Court.
The Council's complete policy statement, "Children in Jails and Lockups for Adults," is available
from: NCCD, 77 Maiden Lane, Fourth Floor, San
Francisco, CA 94108, 415/956-5651.

security facility for women at Marianna,
Judge Parker retained jurisdiction over
the new facility after the HSU in LeXington closes.
"The Court is greatly troubled,"
wrote Parker, "about the previous conditions within the Unit and the defendants' gross insensitivity and belated response to those conditions. The Unit at
best meets the bare Eighth Amendment
standards but at times the· treatment of
plaintiffs has skirted elemental standards
of human decency. The exaggerated security, small group isolation, and staff
harassment serve to constantly undermine the inmates' morale."
The Court was also critical of the
cavalier response the federal government made to the numerous complaints
of gross insensitivity and psychological
harm:

Prevention Act. As this date draws near,
however, Significant disagreement exists
over how far states have advanced.
"For the first time in over a century," Ira Schwartz, former director of
the Office of Juvenile Justice and Delinquency Prevention (OnDP), observed
recently, "the prospect of having no fll-continued on next page"

they are groundless, but rather that the
Bureau has attempted to and has·indeed
rectified a large number of the complaints before this lawsuit was filed.
That, however, is a sorry response to the .
complaint and is a shameful reflection
on the Bureau's administration. Only
after repeated complaints by plaintiffs
and their counsel, were minimal efforts
expended to install shower curtains, to
extend the list of visitors, to outlaw StriP
searches follOWing outdoor exercise, and
to relocate plaintiffs on the side of the
building which afforded more daylight
exposure and to repair broken exercise
equipment Even though those concessions had been made, the Bureau still
operates a unit that in many respeCts~
measures below acceptable standards
for federal prisons. II!II

Defendants' response to many of
plaintiffs' charges is not a denial or that
FALL 1988

21

·,iiii·-----.. . .

.""'. . . --.,..."•"--:_--_·-···.'__-_ _.:.o-....

For the first time in over a
century, the prospect of having
no juveniles in adult jails or
lockups is within grasp.
-continued from previous page

veniles in adult jails or lockups is within
grasp." However, few observers-Schwartz among them-expect that
most states will achieve the legislation's
December 1988 objective. For example,
Mark Soler, executive director of the
Youth Law Center, a San Franciscobased legal advocacy center specialiZing
in juvenile justice issues, feels that as
many as 30 states or territories will remain out of compliance at the end of
the year.
Jail Removal

The Juvenile Justice and Delinquency Prevention Act of 1974 originally
stated that status offenders (a juvenile
who has been adjudicated for conduct
which would not be a crime if he or she
were an adult) should be removed from
jails and lockups, while juvenile offenders
should simply be separated from adults.
Some states--Maine for instance-moved qUickly to remove status offenders from jails; others delayed action.
In addition, some states made serious efforts to separate juvenile offenders from
adult criminals, while others simply
placed juveniles in "isolation" cells,
which frequently resulted in increased
sensory deprivation and higher rates of
juvenile suicides and suicide attempts.
Several years after the Act was implemented, the Children's Defense Fund
(CDF), a Washington, D.C. public interest group, studied the jailing of children
across the country. CDF found children
in jails in every state they Visited. Moreover, they also found that most of these
juveniles were not detained for violent
crimes and were not a public safety risk;
a disproportionate number of the children were minorities; juveniles were detained for periods of time and for reasons that vi~lated state laws; and
conditions in the jails were generally
"abysmal, subjecting them to cruel and
unusual punishment through physical
neglect and abuse."2
In 1980, findings such as these
caused the U.S. Congress to amend the
original 1974 Act, mandating that juveniles be totally separated from adult offenders. Moreover, the amended Act
called for "substantial compliance" with
the Act by December 1985 and "full
compliance" by December 1988. In

!

'Children's Defense Fund, Children in Adult]ails.
(Washington. D.C.: Washington Research Project,
Inc.• December 1976). p.4.

I'

22 FALL 1988

I];
I

,'I

I

I"~

I::
!"

brief. substantial compliance requires a
75% reduction in the number of violations, Le.. adolescents in local jails or
lockups, and an "uneqUivocal" commitment to achieving full compliance. Full
compliance. in turn, now means having
no violations over a 12-month period,
demonstrating that the number of violations are lower than a de minimus rate
devised by OJJDP. and showing that all
instances of non-compliance are in violation of state law. In other words, some
enforcement mechanism must be in
place.
After 15 years of heightened and
innovative program and policy efforts to
remove juveniles from adult jails and
lockups, however. available statistics
paint an unclear picture about how far

states have advanced on this issue.
Federal statistics suggest. for instance. that the number of juveniles incarcerated in adult jails has remained
surprisingly stable. In 1978, according to
July and October 1987 publications from
the U.S. Bureau of Justice Statistics, a
one-day count (February 15, 1978)
found 1,61 I juveniles being held in adult
jails (an average daily population of
1,740). Nearly a decade later, another
one-day count Oune 30, 1986) found
that about the same number, 1,708 juveniles, were being held in adult jails (an
average daily population of 1,404). In July
1987, the U.S. Bureau of Justice Statistics reported that 1,740 juveniles were
held in adult jails in 1978; about the
same number-I ,736 juveniles--were

1 _ -_

I .

ilII

Juveniles are slowly-very
slowly-being removed from
adult jails and police lockups.

Prevention Act, and is ethically wrong.'!
Progress Has Been Made

A federal review of 1986 state
monitoring reports showed that eight
states or territories had achieved full
compliance, I3 had achieved substantial
compliance, 21 states or territories
were in non-compliance, while 10 others
were mired in unresolved issues and
their compliance status has not been determined (four states-North Dakota,
South Dakota, Wyoming, and Hawaiiare considered non-participating states).
These figures suggest, at best, the
slow pace of change. Nonetheless, the
literature on jail removal is rich with options available to communities and states
to help them achieve full removal.
Among these options are: family court
community aide programs, evening report centers, day treatment centers,
family crisis intervention, foster homes,
volunteer foster homes, proctor programs, agency-operated boarding homes,
and attendant care. 5
Individual states have made significant reductions in recent years. In Michigan, court-ordered home detention and
temporary youth shelters have solved
problems which centered on the long
and expensive distances over which juveniles were transported in rural counties. 6
In Colorado, the Sheriffs Association
and the Colorado Division of Youth Services were instrumental in developing
plans for rural counties for the use of locally-based detention criteria, intake
screening procedures, transportation to
secure detention facilities and non-secure treatment services? Finally, in Kentucky, government and public interest
groups have worked together to devise
"strict, objective and specific detention
criteria" which distinguish between juveniles needing secure and non-secure
detention. 8

held nearly a decade later.
Ira Schwartz, now director of the
Center for the Study of Youth Policy at
the University of Michigan, may have
made the most accurate estimate of
what progress has been made when he
recently told the NPP JOURNAL that
some states have reached compliance
(Delaware, New York, Oregon, Pennsylvania); others have come close (California, Colorado, Oklahoma, Tennessee);
some have remained unexpectedly resistant to full compliance (Maine, Minnesota, Wisconsin); and still others have
actually regressed in their efforts (Alabarna, Indiana, Ohio, South Carolina).
Support remains strong, however,
for the full removal of juveniles from
jails and lockups. In 1981, the broadbased National Coalition for Jail Reform
(NCJR), which included such organizations as the American Bar Association,
the American Civil Liberties Union, and
the National Sheriffs' Association, said
flatly and boldly that "no juvenile should
be held in an adult jail."3
Most recently, the National Coalition of State Juvenile Justice Advisory
Groups (NCSJJAG), in its 1987 report
to the President, restated its steadfast
and continued support of the Act's jail
removal objective. NCSJJAG's reasons
for opposing the jailing of juveniles in
adult jails and lockups sum up years of
research and experience:
• jails and lockups cannot provide
adequate treatment for juvenile
offenders;
• juveniles currently held in these
facilities do not commit offenses which
require that they be held for public
safety reasons;
• juveniles housed in adult jails
and lockups are subject to physical, men- 'The National Coalition of State Juvenile Justice Advisory Groups, An Act of Empowerment: The Third Retal and emotional abuse;
port to the President, the Congress, and the Adminis• expensive, limited jail space and - trator of the Office ofJuvenile Justice and
services should. be used primarily for
Delinquency Prevention, (Bethesda, MD: National
dangerous adult offenders;
Coalition of State Juvenile Justice Advisory Groups,
• jailed juveniles have a higher
December 1987), p.8.
rate of suicide than juveniles in the gen'See, for example, Removing Children from Adult
Jails: A Guide to Action prepared for the u.s. Office
eral population or juveniles held in deof Juvenile Justice and Delinquency Prevention by the
tention centers;
Community Research Forum of the University of illi• jailing juveniles involves serious
nois at Urbana-Champaign, (May 1980).
liability issues;
·See Community Research Associates, "The Michi• many existing jails and lockups
gan Holdover Network: Short-Term Supervision
do not meet minimum correctional conStrategies for Rural Counties," (Washington, D.C.:
finement standards; and
U.S. Office of Juvenile Justice and Delinquency Pre• jailing boys and girls is contrary
vention, 1986).
7See Christine Carty, "The Sheriffs Dilemma: Juveto the Juvenile Justice and Delinquency
'National Coalition for Jail Reform, "Inappropriate
Confinement of Juveniles in Adult Jails," (Washington, D.C.: National Coalition for Jail Reform,
1981), p.1.

niles in Jail: The Jail Removal Initiative in Colorado," (Washington, D.C.: U.S. Office of Juvenile
Justice and Delinquency Prevention, 1986).
"See Community Research Center, "A Community
Response to a Crisis: The Effective Use of Deten-

More Can Be Done

Juveniles are slowly-very slowlybeing removed from adult jails and police lockups. Suitable models for alternatives to confinement exist so that total
removal of children from these institutions remains a possibility, but few longtime observers feel that OJJDP's deadline will be met by even a majority of
states. By December 1988, as many as
30 states are likely to remain out of
compliance with OJJDP's jail removal
mandate. Moreover, while states have at
least addressed the issue of juveniles
locked up in adult jails, many of them
have not yet begun to examine and act
on the problem of juveniles detained in
police lockups.9
-continued on next page
-------tion and Alternatives to Detention in Jefferson
County, Kentucky," (Washington, D.C.: U.S. Office
of Juvenile Justice and Delinquency Prevention, December 1983); also see, Debra Miller, "A Part of
the Answer: The Effect of Juvenile Court Worker
Programs on the Incarceration of Juveniles in
County Jails and Juvenile Detention Centers,"
(Louisville, KY: Kentucky Youth Advocates, Inc.,
September 1984). This last report is available from:
KYA, Inc., 2024 Woodford Pl., Louisville, KY
40205, 5021456-2140.
•A recent report prepared by the Crime and Justice Foundation (CJF) for the Massachusetts Committee on Criminal Justice examines the issue of
how to remove juveniles from police lockups. Massachusetts does not have any juveniles confined in
its adult jails--or houses of correction---but 1,336
kids were detained in local police lockups in 1985.
CJF's report recommends that the Commonwealth
establish policy regarding the detention of prearraignment juveniles, legislation alleviating and
regulating the short-term detention of juveniles,
training procedures for police, probation and Department of Social Services professionals involved
with intake programs, and a demonstration project
which targets a specific site. "Juveniles in Massachusetts Police Lockups: Analysis and Recommendations" is available from: CJF, 20 West St., Boston, MA 02111, 617/426-9800.

FALL 1988

......_!III!lI!!1

.-._;B-

23

_

In the end, what may be missing
is the political will to go about
getting the job done properly.
-continued from previous page
Advocates of full removal offer numerous suggestions about what can be
done to improve the current situation.
These suggestions recommend changes
that focus on recalcitrance at the local,
state and federal levels.
The Youth Law Center's Mark Soler, for example, suggests several
changes which can be made at the federallevel:
• Better monitoring. Currently, he
says, OJjDP doesn't offer on-site inspection and monitoring services; instead,
they rely on state-submitted reports
which are, he claims, often inaccurate.
• More funds for legal advocacy
groups. In 1979, Soler points out, the
federal government funded two national
organizations-the Youth Law Center in
San Francisco and the National Juvenile
Law Center in St. Louis-and four statelevel organizations-Greater Boston Legal Services in Boston and the Youth
Policy and Law Center in Madison,
among them-to press their states to
remove juveniles from adult jails. Today,
only the Youth Law Center receives any
OJjDP funds for this purpose.
• Strider enforcement of the jail
removal mandate. Soler says that instead
of forcing states to comply, federal officials allow them to delay the amount of
time they have to comply. Lax enforcement, he suggests, creates an absence of
strong federal guidance.
• More funds for alternative, nonincarcerative programs. Soler argues that
substantial program funding has been
missing during the Reagan administration,
part of a strategy, perhaps, to eliminate
OJjDP altogether.
Soler also identified a number of
state and local barriers to full removal of
juveniles from jails and police lockups:
state-level jll¥enile justice specialists have
not received sufficient support or guidance from the federal government; state
juvenile justice advisory groups have
been "hamstrung" by increased federal
efforts to prosecute and incarcerate
more children; many local jurisdictions
have strong "Iock-up-kids" traditions
which make local officials reluctant to
act, and local judges often see that locking up kids is politically popular; and
states and counties frequently do not
put much effort into creating community-based alternatives. These barriers,
he advises, need addressing.

24 FALL 1988

Today there are still approximately 3,000 Mariel Cubans in prisons, jails, and Immigration and Naturalization detention centers across the United States. These individuals are
not serving prison terms, but are being held under the designation of "excludable aliens."
In November 1987, when notified of the U.S.'s intent to return them to Cuba, the detainees in Atlanta, Georgia and Oakdale, Louisiana began rioting in protest The Department ofJustice then agreed to review each case indiVidually to determine eligibility for
release. Many Mariel Cubans remain in detention, uncertain of the future. In this article,
OJ. Keller tells us more about the frustration and unfair treatment of the Marielitos.

Cuban Detainees Face Further
Frustration, Unfair Treatment
,
OJ. Keller
Why is it that the Cuban prisoners
held by the United States government
are treated so cruelly? Suppose these
immigrant inmates had come from
northern Europe instead of Cuba. Does
anyone believe that Norwegian, Swedish,
English, or German offenders would
have been confined under the same conditions the Marielitos have faced?
Just what are the confinement conditions? For the most part, ever since
the riots at Oakdale, Louisiana, and Atlanta, Georgia, the Cubans have been
confined to their cells 24 hours a day,
seven days a week, month after month.
Two men usually share a cell designed
for one. The food, generally cold, is
brought to their cells. When the Cubans
leave their cells, they are handcuffed,

OJ. Keller, former president of the American Correctional Association, has also
served as U.S. Parole Commissioner and a
member of the National Appeals Board.
Conclusion

Sufficient tools and strategies are
available to finally remove all juveniles
from adult jails and police lockups. Jim
Brown, project director of Community
Resource Associates which provides
OJjDP's technical assistance to the
states, says that OJjDP's technical assistance efforts over the years have identified key factors in achieving full removal.
"Where jail removal has worked," he
has found, "there's always legislation,
some type of state-local sharing relationship, access to secure detention, some
means of transportation services for rural areas, a strong network of alternatives to detention, and close attention
to policy guidelines and procedures concerning admissions criteria, so that a
clear understanding exists between police, the courts and citizens."
Jeff Allison, compliance monitoring
coordinator for the OJjDP, agrees with
Brown's observations. "Jail removal is
successful," he says, "when states have
appropriate legislation, objective deten-

with the cuffs attached to a belt at their
waists. There is nothing for them to
d~o TV, nothing to read, no education, no activity except one hour (or
less) a week walking in the prison yard.
Lock-down is the Bureau of Prisons'
(BOP) prescription for the Marielitos.
The Coalition to Support the Cuban Detainees, an Atlanta-based group,
attempting to obtain some measure of
fairness for the Cubans, hears from detainees confined throughout the country.
Although the roughly 3,000 Marielitos
have been scattered to 33 different BOP
facilities, as well as 64 county jails or Immigration and Naturalization Service .
(INS) detention centers, the messages
from the Cubans are much the same.
From Petersburg, Virginia comes
the cry, "I am going crazy in this place.
We get out for recreation one hour per
week. There's no basketball; so we just
walk around. The staff pays no attention
to us. Only if we scream and pound on
tion criteria, 24-hour intake services, and
secure and non-secure alternatives to
locking kids up with adults."
In the end, what may be missing is
the political will to go about getting the
job done properly. The Youth Law Center's Mark Soler acknowledges that
OJjDP's recent technical assistance efforts are "probably good," but he regrets that they have taken 14 years to
emerge. Still, "they could be needed for
a long time," Soler suggests, "because
there are still a lot of terrible jails with
kids in them." In the end, he says, legal
efforts will remain important. "In one
sense," he notes, "litigation is a good
complement to what OJjDP is doing."
On the other hand, he adds, litigation
could well achieve what OJjDP is not
likely, at least now, to push for. A new
administration in Washington, he finally
suggests, might bring the depth and
breadth of leadership-especially a firm
and well-supported commitment to removing all kids from adult jails and police
lockups-that has been missing for the
past eight years. 11II I

"All my family photos were gone.
Those pictures were all I had."
the door of our cell does anyone come.
I can't see the doctor. The temperature
inside the cell is 97 degrees."
From Leavenworth, Kansas come
these comments: "A person cannot
shower and shave in five minutes. That's
what these people give you three times
a week. We can make only one five-minute phone call every three months. They
put two men in cells built for one. The
noise is so bad you can't hear the radio
or the other guy's conversation. You
can't sleep at night."
Another, writing from Talladega,
Alabama, said, "We got an hour last
week for recreation. But, when I came
back to my cell, the officers had been
searching it. All my family photos were
gone. Those pictures are the only ones I
had. I know I may never see my family
again. I was mad, and threw my food.
So, they came in, handcuffed me, and
bounced my head against the wall. That
was days ago, but my head still hurts."

I
I'
I

I

If you look at the offenses these
Cubans have committed, you find they
range from minor parole violations to
the most serious felonies. But the same
thing can be said of American prisoners
in those BOP facilities and county jails.
Yet, the Americans are not treated as
the Marielitos are. Some effort is made
to classify American offenders by degree
of dangerousness. Why is it that the Cubans are all tarred with the same brush?
Why has the BOP's classification system
been thrown out the window in their
cases? .
The answer appears to be that the
BOP sees all the Cubans as particularly
dangerous. The fear is that, when some
of the Cubans receive notification from
the INS denying their release into
American society, they will rise up and
start another Atlanta- or Oakdale-type
riot. So, it's essential the Cubans be
scattered in small groups throughout the
United States. And, to be doubly secure,
they must be locked down in their cells
24 hours a day.
The BOP's reasoning is fallacious,
just as it was in November of 1984.

That's when the first riot took place at
the U.S. Penitentiary (USP) in Atlanta,
involving the Marielitos. The BOP and
the Department of Justice contended
that the riot had been sparked by two
Cuban hoodlums. The Justice Department took the men to trial in federal
district court. The trial went on for a
week, but the jury, composed of north
Georgia citizens, soon returned with a
verdict the BOP did not appreciate. The
jury found the two Cubans innocent on
all counts, and said the riot was spontaneous, triggered~by the intolerable
conditions of confinement at the
penitentiary.
Although the jurors expressed both
dismay and shame at what our government had done to the Marielitos, the
BOP has learned nothing from the 1984
riot. It would still argue that it's the nature of the Cubans to cause disruption,
not the conditions of confinement. So,
the BOP is still on the same track: lock
'em up; provide no programming; hold
men in idleness; treat them with an iron
hand.
-continued on next page

Smoke rises from the Atlanta Federal Penitentiary as Mariel prisoners, who feared being returned
to Cuba, rioted and held hostages to draw attention to their plight

One wonders who's crazy-the Cuban detainees or the federal Bureau of
Prisons (BOP).
Some of the Cubans whose behavior
is considered bizarre by the BOP are
shipped to St. Elizabeth's Hospital in
Washington, D.C. These transfers are
often the detainees who shout, who
pound on cell doors, who stuff their toilets and flood the cellblocks. They're the
ones who go on hunger strikes. They
are sent to St. Elizabeth's for mental
health examinations.
Once the Cubans get to St. Elizabeth's their behavior often changes dramatically. They no longer shout and
cause problems. Could the explanation
be that, in contrast to the inhumane
conditions to which the BOP subjects
them, the Cubans at St. Elizabeth's can
shower every ~ay, have regular exercise,
can enjoy arts and crafts, can watch TV,
and read a variety of books and magazines? They can even wear civilian
clothes, are called by their own names
rather than prison numbers, and can
make outside telephone calls with the
points they earn through good behavior.
Frankly, the conditions under which
the Cubans suffer within the BOP are
sufficient to drive most men to madness.
By contrast, the conditions at St. Elizabeth's demonstrate some basic understanding of human needs. Many supporters of the Cuban detainees believe the
BOP's hierarchy is the group in need of
mental health assistance. -O.J.K.
FALL 1988

.'I'.

"""""
...._ ...

"',...",........

25

...olJ

v

:.
]
~

~

"
~
A Cuban prisoner raises the American flag during the riot at Oakdale, Louisiana.

-continued from previous page

But, surely, there can be no excuse
for the riots at Atlanta and Oakdale in
November of 1987. After all, Warden
joseph Petrovsky at USP-Atlanta had
greatly improved living conditions, and
the Oakdale facility was a far cry from
the old fortress prison in Atlanta The
difference lies in the device that triggered the 1987 riots. It wasn't the conditions of confinement; it was the stupidity of the U.S. State Department,
Congressman john Lewis from Atlanta explains the Atlanta-Oakdale riots
of 1987 succinctly: "When men are held
in indefinite detention with no hope of
minimal due process, and then not apprised of an international agreement
which may deport them to a country
against their will, it should be less than
surprising when they revolt against this
system of justice. The announcement by
the State Department only triggered the
waiting time bomb." Lewis is right.
When over one thousand Cubans, approved for release into the United
States, learned overnight that they were
to be shipped back to Castro's Cuba, it
should have surprised no one, even the
BOP, that the reaction would be violent.
Almost since Day One, the BOP, as
well as the INS, has attempted to portray the Cuban detainees as an unusually
dangerous group of offenders. The fact is
that the Marielitos are much like their
American counterparts. A few are dangerous; the majority are not.
During the Atlanta and Oakdale
riots, while property destruction was
terrible, responsible Cuban prisoners
made sure the hostages were shielded
from harm. The very fact that the Cubans acted responsibly during riots
causes concern now that our own gov26

FALL 1988

ernment is acting irresponsibly. When
the agreement between the Department
of justice and the Marielitos was
reached, and the riots ended, one of the
major participants was Gary Leshaw of
Atlanta Legal Aid. Leshaw points out
that the BOP pledged to improve mental health care for the detainees. "There
was a specific section included in the
agreements ending the uprisings," said
Leshaw. Not only has the BOP done
nothing to improve the Marielitos' access to mental health care within the
prison system, but the present conditions of confinement in fact invite mental
illness or violence (or both). Suicides, attempted and completed, as well as selfmutilations, are typical by-products of
the detainees' lock-down situation.
The United States. House of Representatives will soon be considering H.R.
4330, jointly sponsored by Congressmen
Romano Mazzoli (D-Ky.), Robert Kastenmeier (D-Wis.), and Pat Swindall (RGa.). This bill would provide the Marielitos with some basic due process in their
deportation hearings-something that

has been denied by the U.S. Court of
Appeals for the Eleventh Circuit and the
Supreme Court. What a shame it is that
the House Subcommittee on Courts,
Civil Liberties, and the Administration of
justice, although chaired by Rep. Kastenmeier, no longer seems to have equal
concern about the conditions of confinement. Two and' half years ago, Rep.
Kastenmeiel' personally visited USPAtlanta and reported to Congress his
chagrin about, the deplorable situation
there. Although the Cubans are now
scattered in jails and prisons throughout
the country, t~e conditions of imprisonment are still deplorable but no members of Congress seem to care.
Which brings us back to tbe original question. If these illegal aliens had
come to our shores from northern Europe, would they receive the sub-human
treatment we accord the Cubans?
For more information on the Cubans,
contact the Coalition to Support Cuban
Detainees, P.O. Box 935, Decatur, GA
30030. II

a

For The Record
Dear Adjoa and Alexa:
I read about your extraordinary victory (see Bara/dini, p. 19) in the New
York Times over the weekend. You deserve to be congratulated for seeing and
framing the issues so skillfully. I have always believed that the key to victory in
that case was to ensure the court saw
the extent to which these particular
women were being kept in segregation
as a result of their political views.
I have just finished reading Life and
Death in Shanghai, a true story of a
woman persecuted during the Cultural
Revolution who was kept in solitary
confinement and tortured until she
would relinquish her beliefs. It is an extraordinary book which is well worth
reading. The analogy to the situation you
exposed in the Federal Bureau of Prisons is not as far-fetched as some in our
country would have you believe.
The importance of victories such as
you have won go far beyond the particular women and the particular case. You
and your colleagues at the Prison Project are to be congratulated.
Sincerely,
Matthew L. Myers
Asbill, junkin,
Myers & Buffone
• The ACLU National Prison Project
announces the release of three new publications on AIDS in Prisons: a new
booklet, A/OS in Prisons: The Facts for /n-

mates and Officers; the 1988 A/OS in
Prison Bibliography; and the summer 1988
issue of the NPP JOURNAL which contains an up-to-date survey on AIDS in
prison.
A/OS in Prison, a 14-page factual
booklet, is a simply written educational
tool for prisoners, corrections staff, and
AIDS service providers. The most commonly asked questions concerning the
meaning of AIDS, the medical treatment
available, and legal rights and responsibilities are presented and answered in an
easy-to-read format.
The Prison Project hopes to distribute this pamphlet Widely in jails and prisons throughout the country. Sample
copies are free. Bulk orders are available
for:
100 copies- $ 25
500 copies- $100
1,000 copies-$150
The Bibliography offers a list of resources on AIDS in prison that are available from the National Prison Project
and other sources.
It includes an extensive list of corrections policies on AIDS; a list of educational materials; a section on AIDS litigation covering both prison and nonprison cases; and a directory of medical
and legal articles and recent AIDS studies. The 3 I-page Bibliography is available
for $5.00.
In addition, the summer 1988 issue
of the JOURNAL contains a 1988 national
survey of AIDS in prison. This survey,

which includes a full-page chart, gives a
state-by-state breakdown of prison policies and procedures regarding the treatment of AIDS-infected prisoners.
The survey focuses on mandatory
testing, housing and segregation, confidentiality, education and medical care,
and also provides the latest population
figures of HIV-infected prisoners in this
nation's prisons. The special JOURNAL issue is available for $5.00.
The AIDS booklet and survey are
free to all prisoners. Address all inquiries
to Judy Greenspan, National Prison Project, 1616 P Street, N.W., Suite 340,
Washington, D.C. 20036;
2021331-0500.

• The National Coalition to Abolish the Death Penalty will hold its

Seventh Annual Conference from Friday,
November 18 to Sunday, November 20,
1988 at Southern Methodist University
in Dallas, TX. Keynote speaker will be
columnist and commentator Molly Ivins
with the Dallas Times Herald. Workshops and plenary sessions will include:
trial monitoring, speaking against the
death penalty, working with victims organizations, grant writing and legislative
action. The Conference will also include
a demonstration or vigil against the
death penalty. For more information
contact the NCADP at 1419 V St.
N.W., Washington, D.C. 20009 or call
2021797-7090.
• The Pennsylvania State University
will conduct a seminar on "Legal Is-

sues for Corrections Personnel,"

November 14-16, 1988, and again April
24-26, 1989, in University Park, PA. The
course is designed for prison wardens,
officers and other supervisory personnel,
as well as those responsible for establishing personnel policy within correctional
institutions. Tuition is $245. For more
information, contact: Kathy Karchner,
Coordinator, 410 Keller Building. The
Pennsylvania ,State University, University
Park, PA 16802. Phone: 814/863-3551.
•
In an article which appeared in the
last issue of the JOURNAL, "Health
Professionals artd A Preventable Death
at Butner," we listed Dr. Steven Miles as
its sole author. The article was, however, co-authored by Dr. Miles, Michael
McCally, M.D., and John La Puma, M.D.
The JOURNAL regrets the omission.

v\>1

·?J?!r
"::.;,...;-.< Sourcebook (1980). Traces

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

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.

......: ..,-<

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 andlor the total
conditions of confinement.
(No jails except District of
Columbia). Periodically updated. $3 prepaid from NPP.

The Prisoners' Assistance
_ _-'----_::;, Directory, the result of a national survey, identifies and describes various organizations
and agencies that provide assistance to prisoners. lists national. state, and local organizations and sources of
assistance including legal, library, medical. educational,
employment and financial aid.
7th Edition, published April
t>986. Paperback, $25 prepaid
from NPP.

Fill out and send with check payable to

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

-_.L-~:c,

Bibliography of Women in
Prison Issues. A bibliography

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

practical suggestions for jail lit:
igation. It includes chapters on
legal analysis. the use of expert witnesses, class actions,
attorneys' fees. enforcement.
discovery, defenses' proof,
remedies. and many practical
suggestions. Relevant case citations and correctional standards. Ist edition, February
1984. 180 pages. paperback,
$15 prepaid from NPP.

The National Prison Project Status Report lists by

The National Prison
Project JOURNAL,
$25'/yr. $2Iyr. to prisoners.

QTY. COST

A Primer For Jail Litigators is a detailed manual with

QTY. COST

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.

NAME

_

ADDRESS

_

CITY, STATE, ZIP

_

FALL 1988

27

I"':""""----------------------------------------~------

The following are major developments in the Prison Project's litigation
program since May I, 1988. Further details of any of the listed cases may be
obtained by writing the Project.
West v. Atkins-The Supreme Court
unanimously adopted our amicus position
that a private physician, hired by a state
prison to provide medical care, was engaged in state action and could be sued
by a prisoner in federal court under the
Civil Rights Act.
Abbott v. Thornburgh-This is the
national class action which challenges the
mail and literature policies of the Federal Bureau of Prisons. Plaintiffs have
filed their brief on the merits in the Supreme Court and argument is expected
to be scheduled for fall of 1988.
Palmigiano v. DiPrete-This case
challenges conditions in the Rhode Island
State Prison system. Early in May, we
learned that defendants were exceeding
the population cap at the Intake Center
and were ignoring the court orders.
Late in june, we filed an application for a
show cause order and a contempt hearing was held in july.
U.S. v. Michigan/Knop v. JohnsonThis is a statewide Michigan prison conditions case. In Knop, the trial court issued a favorable decision on remedial
plans. The defendants have now appealed
that order and the Rule I I order. The
Prison Project has been appointed litigating amicus by the court; defendants
have appealed that decision. The court
also dismissed the other claims without
prejudice on the condition that if the

circuit court of appeals upholds the order, the dismissal will be with prejudice.
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, defendants failed to carry
out the terms of the agreement reached
in january, and plaintiffs have petitioned
the court to reschedule the hearing on
preliminary injunction. In Dotson, the
court granted a preliminary injunction
which will allow plaintiffs to receive
newspapers and magazines. A federal
magistrate also recommended court approval of a preliminary injunction to end
triple-ceiling and sleeping on mattresses
on the floor, and reduce overcrowding
in the women's section.
Duran v. Carruthers---This case challenges conditions in the New Mexico
state prison system. The Supreme Court
denied defendants' petition for certiorari
on the issue of attorneys' fees. We are
now proceeding in the district court on
all open fee claims. In response to the
defendants' appeal motion to modify or
vacate the consent decree, parties met
with the Special Master in an attempt to
negotiate their differences.
Plyler v. Leeke-This case challenges
overcrowding and conditions in the
South Carolina prison system. In response to the circuit court's decision favoring defendants on their motion to
modify the consent decree and ease
population requirements, we filed a petition for a rehearing en banc in May. The

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

(202) 331-0500

Being a former farmer and horse raiser, I know what it's
like to try to eliminate an injured horse by shooting him.
Now you can call the veterinarian and the vet gives it a
shot and the horse goes to s/eep--that's it I myself have
wondered if maybe this isn't part of our problem [with
capital punishment}, if maybe we should review and see if
there aren't even more humane methods now-the simple
shot or tranquilizer. -Ronald Reagan
2Q, FALL 1988

petition was denied in june and we will
be filing a petition for certiorari in the
Supreme Court. l,n August, we received
a favorable decision on attorneys' fees
dating back to the beginning of the case.
Harris v. Thigpen-This case challenges the Alabama Department of Corrections' progrqp1 to test all prisoners
for HIV antibodies, and to segregate
those who test HIV positive. Plaintiffs
filed an amended complaint in june. Defendants moved to dismiss, and a hearing
was held in August. The court has denied the the motion to dismiss, although
it will consider the testing issue separately. The court also agreed to certify
the case as a class action.
Baraldini v. Meese-This case alleges
that the Federal Bureau of Prisons assigned plaintiffs to the High Security
Unit in the Lexington Federal Penitentiary in violation of their First, Eighth
and Fifth Amendment rights. A hearing
was held in june, and the court granted
plaintiffs a highly favorable decision in
August.
Dickerson v. DuPont-For the last
year, the NPP has been investigating
conditions in the Delaware prison system .in cooperation with Community Legal Aid in Delaware and the ACLU of
Delaware. Following intensive negotiations beginning in March, we reached
agreement with the state on a settlement of issues involving overcrowding,
medical and psychiatric care, physical
plant and sanitation, access to courts and
monitoring. This settlement will be incorporated into a consent decree in an
existing case pending in the Delaware
Court of Chancery. I11III

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