INSIDE ...
• Women Offenders
States Examine Policies

p. 4

• Willie Horton
Did the Bush Campaign Damage
Furlough Programs?
p.1 0
• AIDS Update
JOURNAL Begins Regular
Column on AIDS

,•

p.13

In the Nex~\ssue:
ISSN 0748-2655

NUMBER 19, SPRING 1989

Washington State's Prisoner
Numbers Stabilize As National
Rate Soars

•

Racism in Sentencing
Lawyers Work with the
Community

jan Elvin
In the midst of a national correctional
system choked by serious overcrowding,
Washington State's prisoner population
dropped in 1987, and continued to fall
through 1988.
As of june 30, 1988, there were
604,824 people incarcerated in state and
federal prisons nationwide. State prisons
are currently operating, on the average,
at 106-121 % of capacity, with some at
more than 150% of capacity. Forty
states are under some form of courtimposed mandate to improve facilities,
including conditions ruled unconstitutional due to overcrowding. In fiscal year
1988, the numbers of people imprisoned
in federal and state institutions rose 6%
over the previous year. In contrast to
these growing numbers, and during that
same period of time, the population in
Washington State prisons decreased by
9.7%.
In 1981, WCl?hington State enacted
the Sentencing Reform Act (SRA), designed to develop gUidelines for judges
issuing sentences to criminal offenders.
The purpose of the SRA was to make
sentences more equitable, and to reduce
the disparities many had found in the
previous sentencing system. The model
for this system was the highly praised
1977 Minnesota Sentencing Guidelines.
Is Washington State's Sentencing Reform Act responsible for the decline in
its prison population? Is that decline
"real"? What impact has the Act had on
Washington's criminal justice system?

jan Elvin is the editor of the NPP
JOURNAL

Chase Riveland, secretary of the Washington Department of Corrections, believes the
Sentencing Reform Act gives Washington policy-makers the opportunity to "articulate policy
more clearly."

The SRA has reduced many disparities
in sentencing, and has provided consistency and predictability, as its enactors
envisioned. It provided a vehicle for two
lawsuits' which required that prisoners
sentenced prior to SRA enactment in
july 1984 would have their sentences reconsidered in light of the new gUidelines.
'In re Myers. 714 p.2d 303 (1986). and Addleman v.
Board of Prison Terms and Paroles. 730 P.2d 1327
(1986).

The 1986 legislature amended the SRA
to require review of pre-SRA prisoners'
sentences as well. These court orders
and the ensuing reevaluations alone provided for the early release of I,800 prisoners--releases "borrowed from the future," according to Glenn Olson,
forecaster for the Sentencing Guidelines
Commission. Olson says the releases account for most of the decline in population seen over the last several years.
-continued on next page

A PROJECT Of THE AMERICAN CIVIL LIBERTIES UNION fOUNDATION, INC.

.

history. While the gUidelines may mean
that some prisoners serve longer sentences, those convicted of similar crimes
are at least serving close to the same
amount of time.

-Continued from front page

King County Superior Court Judge
Steven Scott, a former member of the
Sentencing Guidelines Commission, does
not share Olson's view of the causes of
the decline. Judge Scott reasons that,
"Under the SRA, a lot of people who
previously went to prison for less serious offenses no longer go. I think that is
why we have seen a decline in the state
prison population."

terms. No appellate review of those ,~1;
guidelines was afforded, although wriq"
reasons were required to support a <te- '
parture from them.

But hardly anyone involved in criminal
justice in the state would characterize
the relationship of the SRA to the drop
in numbers of prisoners as one of simple
cause and effect. In fact, over the long
run the SRA may be responsible for an
increase in population. Although fewer
offenders are now entering the system,
those who are sent away will serve
longer sentences under the SRA. The
population stabilized toward the end of
1988, and indications are that a renewed
increase has already begun.
The SRA has mainly offered a mechanism whereby policy-makers, as secretary of corrections Chase Riveland says,
can "articulate pOlicy more clearly." It
has clarified the often murky waters
through which the parole board had to
wade in order to determine an offender's sentence.

History of the Washington State
Sentencing Reform Act
Sentencing systems or guidelines have
been developed in California, Illinois, Indiana, Maine, Minnesota, Washington,
and Pennsylvania, and are being developed in the District of Columbia, Delaware, Oregon, Louisiana, and Tennessee.
Of these states, only two, Washington
and Minnesota, have implemented structured sentencing gUidelines that, according to Kay KAapp, former director of
the Minnesota Sentencing Guidelines
Commission and the U.S. Sentencing
Commission, "redistribute discretion, address sentencing purposes and provide
certainty and truth in sentencing."
When the Washington State Legislature enacted the Sentencing Reform
Act, it delegated implementation of the
system to a Sentencing Guidelines Commission, charging it with developing
gUidelines which would reduce unwarranted disparities in sentences and assure
that offenders were treated equitably.
Seeds for the eventual passage of the
SRA were sown in 1975, when the
Board of Prison Terms and Paroles developed guidelines for fiXing minimum
2

SPRING 1989

~'.:~

In, 1978 the Superior CourtJudg~~
Association developed its own set of
voluntary sentencing guidelines, anda
study found that judges were using them
in 70% of the cases. During this period,
Washington's prosecuting attorneys also
developed gUidelines, and by 1981, the
use of sentencing gUidelines was accepted procedure. The legislature directed the Sentencing Guidelines Commission to give consideration to the
existing judicial and prosecutorial guidelines and to the experience gained
through the use of those guidelines.

Death of the Rehabilitation Model
The shift from Washington's former
indeterminate sentencing system to a
determinate system reflected a fundamental change from the basic premises
which had previously guided sentencing
in this country.
Washington's criminal law had been
based on the optimistic social theory
that experts-judges, parole boards, and
social workers--<ould diagnose the
cause of criminal activity and prescribe
sentences which would fit individual
needs.
Under this indeterminate sentencing
scheme, sentences tended to reflect the
individual characteristics of the offender,
rather than the severity or type of
crime committed.
During the 1970s indeterminate sentencing systems lost favor with many
criminal justice professionals, who felt
that rehabilitation had not proved effective. If rehabilitation did not work, they
reasoned, a prisoner's "rehabilitation
progress" should not influence the
amount of time served. According' to
Dave Fallen, research director of the
Sentencing Guidelines Commission, most
officials admit that they were never very
good at judging whether a person was
rehabilitated or not.
Modeled largely after Minnesota's
guidelines, enacted in 1977, the Washington system is now based on a theory
of punishment, and serves as a testament
to the failure of the popularity of the
rehabilitation model.
Penalties are now more consistent
and predictable, structured to parallel
the length of the sentence to the crime
committed and the offender's criminal

Judge Now Determines the Term,
With Limitations
The judge now determines the length
of sentence, regardless of whether the
person goes to prison or jail, or does,
time in the community, but very specific
limitations are set by the gUidelines.
When a decisi~ goes outside the standard range bet'feen zero and the statutory maximum~the judge must list the
compelling reasons. The decision is subject to appellate review.

"Judges," says Judge Steven Scott,
"still largely resent the lack of discretion, although I don't find that it presents a problem. There are exceptional
sentences [sentencing alternatives below
the standard sentencing range]. You can·
go outside the guidelines--there's a certain pressure not to, but in most cases
the guidelines have worked pretty well."
"Some [judges] rail against it," says
Chase Riveland, "and others find comfort in being able to say, 'Well, I can
only give you X years because of the
guidelines.' My guess is that they would
probably split 50-50, and that they are
less resistant to it as time goes on."
TIE

JOURNAL
OF THE

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

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

True. Inc.

I

Criticism for "Rent-a-Cell"
Program and Jail Crowding
Problems
As a result of the SRA, many convicted offenders are serving shorter sentences, and are assigned to serve time in
jail rather than in prison. Therefore,
while prison population has declined, the
number of inmates in local jails has
jumped dramatically. According to recent reports in the Seattle Times, county
jails in Washington, particularly King
County, where Seattle is located, are
critically overcrowded. The King County
jail exceeded capacity the day it opened
in 1986, with a population of 1,200. The
population count has climbed above
1,700; prisoners now sleep on the floor.
In the wake of the jail crowding crisis,
Secretary Riveland has been criticized
for renting prison space to the Federal
Bureau of Prisons, other states, and the
District of Columbia instead of turning it
over to the counties, which need the additional space. (This rental program is
temporary, to be phased out as the state
inmate population increases.)

The NPP JOURNAL asked Riveland for
his response to the criticism: He said,
"The solution for our counties is to do
the same thing the state does, and that
is to articulate your policy clearly. One
county, Pierce, which includes Tacoma,
was not applying good time to its population, while King and most other counties do. Pierce has almost no bail bond
program. Driving While Intoxicated
(OWl) and domestic violence cases, for
whatever reason, are much higher in Tacoma than in other places. These are the
kinds of issues that need to be dealt
with at the county level."
The jail overcrowding problem, according to news reports, has prompted
King County officials to consider at least
five options to ease the situation, all of
which would require adding cell space.
Not one considers alternative punishments or even work release as possible
solutions.
Other officials in Washington point
out factors which account for the rise in
jail population. New domestic violence
laws, which require police officers to arrest spouses engaged in domestic violence, have resulted in increases in the
jail population. A new OWl law demands
an automatic jail term.
Chase Riveland leveled some criticism
at the counties: "For example, the Sheriff in Thurston County, that we're sitting
in, has been very vocal in saying that the

SRA meant that he has many more sentenced felons in his jail right now. The
data show that he has fewer felons now
that he had prior to 1984. 2 He doesn't
even use work release. If you give too
much relief to the counties they're not
going to address the issues. We're using
some leverage, trying to keep the pressure on. We have, for political reasons,
as much as anything else, given them 200
beds on McNeil Island on a contractual
basis. Interestingly, no county has taken
us up on that."

Impact Statements: A Useful Tool
for the Legislature
"Most bills that carry increased penalties are referred to the guidelines commission," he says. "They are assessed,
and a very strong impact statement goes
to the legislature saying 'if you do this,
this is the number of beds you're going
to need in the future.' I have found that
that has a very dramatic effect on these
folks, particularly when they're scrambling for money for other uses, and saying 'my goodness, if we do that, we're
going to have to go with another
prison.'
"The guidelines here, and the fact that
they're adhered to, make it a fairly precise projection as to what the population is going to be."
Riveland serves as chairman of the
Governor's Interagency Criminal Justice
Workgroup, a policy-setting group made
up of heads of all State-level criminal justice agencies.
2Convictions for violent offenses have decreased
under the Sentencing Reform Act at the same
time nonviolent convictions have increased, From
FY 1982-FY 1987, convictions for violent offenses
dropped by 19%.

"They actually roll up their sleeves
and get things done," Dave Fallen says of
workgroup. "One of their main functions is to produce an executive forecast
that all executive agencies can live with,
so we don't have quarrels over whose
projection is right and whose is wrong.
The projections have been uncannily accurate. Even when they are inaccurate,
they have the data and the expertise to
pinpoint why they went wrong."
Fallen's office provides many of the
numbers needed to track the kind of information needed for the workgroup's
forecasts. He also compiles data on each
convicted adult felon, such as demographic information, offense,. prior record, and sentencing data.

Alternatives: Are They Underused?
"The priority on our agenda for the
last year and a half and for the next
three or four years," says Chase Riveland, "is going to be to divert people,
for a whole range of reasons."
Alternatives to incarceration used in
Washington include probation, fines, restitution to victims, community service,
and split sentences, which consists of a
short period of incarceration followed
by probation in the community.
Nancy Campbell, director of Community Services in Washington, is working
hard to improve community corrections.
"The guidelines structure," she says,
"has done a couple of things very well:
it allows you to predict our popula-'
tion-what the fiscal impact of a bill in
the legislature will be; it also has finally
distilled the population, and put the vi~­
lent in prison and the nonviolent in the
community.
"Conceptually it is working in the
-continued on next page
SPRING 1989

3

-continued from previous page
right direction. Where we have failed is
-what about alternatives? While I think
we are as good as any other state, we
haven't really made strides in developing
a spectrum of community corrections
sanctions. We need to educate the public that these are viable. Prison is not
the only sanction in the world. Prison is
fine, of course, in a particular context.

"My concern is that in this state we
are not asking the question: what kind of
offenders should be in jail? If you say a
certain person should, you have to be
willing to pay the cost. If you say they
shouldn't, then you need to ask what
kinds of other sanctions you can use.
The person who goes to jail is likely to
be someone who's more alien to the
judge, which means usually a minority
person who doesn't speak eloquently or
have a good education," says Campbell.
"How do we get the community to
understand that the offenders in our institutions came out of our communities,
and they are going to come back to our
communities?"

"That's Just Not the End of the
Story"
Judge Steve Scott summarized his
views on the SRA, saying, "Despite a
recent study showing that whites are
more likely to get exceptional sentences
than minorities, there is more consistency in sentencing.
"The effect [of the SRA] was to
lower the amount of time people do for
nonviolent offenses and increase the
time that people do for most serious violent offenses. That is a legitimate tradeoff. The problem is that after you see
the initial drop in the population you ultimately get to the point where you get
back to an increase because people
aren't leaving.
"Whether the SRA is a 'success' is
not a simple yes or no answer, but it
was successful in some of its objectives.
Idon't think it's the raving success that
you get if you just look at the prison
population here compared with everywhere else. That is just not the end of
the story. I am sure the population reduction would not have happened were
it not for the SRA. The question is,
what is going to happen over the next
ten years?" •

4 SPRING 1989

Four States Study Policies
Affecting Women Offenders
Russ ImmarigeOn;~

"The issue of the adult female offend~~
is no longer so slight that society generally or government specifically can I:jesilent on the development of a comWiehensive public policy to address it The
economies-of-scale argument is nq
longer acceptable and certainly not
effective or efficient"
--Governor's Committee to Study Sentencing and Correctional Alternatives for
Women Convicted of Crime. I
"No matter how we try to rationalize,
or justify, or sanitize the use of imprisonment, prison confinement is a destructive and irresponsible way to treat
human beings, regardless who the human being is or what s/he has done that
offends us. Prison takes away a person's
dignity. Prison opens wounds. Prison prevents us from establishing more real and
loving relationships. Prison legitimizes
the barriers we have already built
around our hearts, barriers that conveniently allow us to ignore the more unpleasant, uncomfortable aspects of one
another's humanity. Prison keeps us
blind to the fact that in every human
person, no matter how broken, hardened, dominating or cruel, there is a
spring of water waiting to flow forth."
----:lohn Cole Vodicka
Alderson Hospitality House2
In Partial justice, one of the few historical assessments of the development
of women's prisons in the United States,
Nicole Hahn Rafter, a historian who
teaches at Northeastern University's
College of Criminal Justice, observed
that "states have historically been all too
quick to incarcerate women when less
drastic solutions would have been less
costly and more efficacious."3
Russ Immarigeon, a regular contributor to
the NPP JOURNAL, is the director of public policy research for the Maine Council of
Churches' Criminal justice Committee.
'Governor's Committee to Study Sentencing and
Correctional Alternatives for Women Convicted
of Crime, Final Report, Baltimore, MD, Office of
the Governor, Oune 1988), p.37.
~ohn Cole Vodicka, "House Notes," The Trumpet,
11(4), (December 1988) p.2.
'Nicole Hahn Rafter, Partial Justice: Women in State
Prisons, 1800-1935, Boston, MA, (Northeastern
University Press, 1985), p.186. A revised paperback edition of this important study will be published by Transaction Books late this year or early
next year.

States also have had a history of ignoring or forgetting those women they
imprison. Women prisoners have not
been given the attention they deserve
because state policymakers have typically
focused on ma~ prisoners who are
greater in nu~er, and are more likely
to rebel against their conditions of confinement or, perhaps most importantly,
to initiate and follow through on legal
proceedings against those who incarcerate them.
Signs are now emerging, however,
that correctional policymakers are beginning to make explicit decisions based on
careful study of imprisoned women in
their states. In the early I980s, for instance, Georgia and Minnesota began to
plan for model programs within and outside of correctional institutions. 4 Shortly
thereafter, state corrections officials in
Minnesota were instrumental in organizing the First National Conference on the
Female Offender. s And, in more recent'
years, officials in Delaware, Illinois, Maryland and Massachusetts have completed
detailed studies of women imprisoned in
their states.
Several earlier articles published in the
National Prison Project JOURNAL have
argued that states are still imprisoning
too many women. 6 While these new
"See, for example, Janet Valente and Elaine T.
DeCostanzo, Female Offenders in the Eighties: A
Continuum of Services, Atlanta, GA, Georgia Department of Offender Rehabilitation, Oanuary
1982); and Shirley Hokanson, The Woman Offender

in Minnesota: Profile, Needs and Future Directions,
Minneapolis, MN, Minnesota Department of Corrections, (December 1986).
'See, Executive Summary of the First National Workshop on Female Offenders, Minneapolis, MN, Minnesota Department of Corrections, 1985. See, also,
Executive Summary of the Second National Workshop
on Female Offenders, Raleigh, NC, North Carolina
Department of Corrections, (1987). The Third National Workshop wil be held in Pittsburgh in April
1989. Copies of these reports are available from
the National Institute of Corrections Information
Center, 1790 30th St., Suite 130, Boulder, CO
8030 I, 303/939-8877.
"See Russ Immarigeon's articles, "Women in
Prison: Is Locking Them Up the Only Answer?"
and "Few Diversion Programs Are Offered Female
Offenders," in issues Number 1I (Spring 1987) and
Number 12 (Summer 1987) of the NPP JOURNAL.
Russ Immarigeon and Meda Chesney-Lind are revising and expanding these articles for a booklet,
tentatively titled Women's Prisons: Overcrowded and
Overused, which will be published by the National
Council on Crime and Delinquency in the late
spring or early summer of 1989. Further informa-

wei [is] "crammed full of
female offenders who don't need
to be there."
studies, all published after these articles
were completed, do not present a full
case for the accelerated deinstitutionalization of women prisoners, they do raise
the hope that states will begin to reverse contemporary patterns of incarcerating more and more women, with
less and less justification. This article,
then, will briefly describe the work, the
findings and the implications these studies hold for the future of women's imprisonment in the United States.
Delaware
In Delaware, all imprisoned women
are sent to the Women's Correctional
Institution (WCI) at Claymont. WCI is
overcrowded, lacks sufficient programming, and is being expanded to house
still more women. However, Delaware
is one of the few states where correctional leadership has decided to focus its
attention specifically on female prisoners.
Late in 1988, the state asked the National Center on Institutions and Alternatives (NCIA) to describe who was imprisoned at WCI, and to assess which
alternative programs were available for
women prisoners in Delaware.
NCIA sent a team of interviewers to
WCI for several days in October 1988
to interview 125 of the I35 prisoners
then housed in the institution. The results of this unique research effort, reported in January, showed that alternative, intermediate sanctions could be
used for a sizable percentage of the
women currently housed at WCI. Or, as
one member of the research team recently told the NPP JOURNAL, WCI was
"crammed full of female offenders who
don't need to be there."
Specifically, NCIA found that 64% of
the women at WCI were incarcerated
for nonpersonal offenses (nearly 19%
were sentenced for very minor offenses),
technical violations of probation or parole accounted for approximately 9% of
the institution's population, and 82% of
WCI's women had strong community
and family ties. In addition, NCIA found
that nearly 70% of the pretrial women
were release-eligible (24% were being
held on bonds of $1,000 or less), 18.8%
of the sentenced women were serving
terms of six months or less, and 46% of
the sentenced women were within six
months of parole eligibility.
tion about the availability of this booklet can be
obtained from Marci Brown, NCCD, 77 Maiden
Lane, Fourth Floor, San Francisco, CA 94108,
41 5/956-565 I.

NCIA also found a serious lack of
alternative programming for women
offenders. At the time of this study,
Delaware was (and still is) considering
the construction of a 200-bed facility for
women. This would expand significantly
the number of prison beds available for "~
women. Currently, Delaware imprisons 1
an average of I30 women. WCI has
:'1'"
housed as many as 160 women (the av,)¥
erage population figure for women hai?;
increased from 45 in 1976 to 145 in ~.~
1988) •
. :.1-\
"The state of Delaware," NCIA sagely
concluded its report, "should carefully
reexamine its current WCI population,
reserve cell space for those inmates requiring incarceration, and exhaust all
community-based alternatives before
making a major and irrevocable commitment to a larger women's facility."?
y~

Illinois

Dwight Correctional Center, the only
women's prison in Illinois, has been consistently overcrowded throughout the
I980s, despite the 1988 transfer of 72
women to the Logan Correctional Center, a male facility where women now
comprise 9% of the total population.
Most of the women at Dwight are from
Chicago, which is located 80 miles from
the prison, but transportation services
between the two places is inadequate.
Lutheran Social Services of Illinois offers a volunteer program, The Dwight
Project, which transports children to see
their mothers. This relieves some of the
pressure of incarceration faced by imprisoned women in the state, but the
recent transfer to Logan has increased
the pains of their imprisonment. Women
report that they have lost good time for
behavior that would have been considered a minor rule violation at DWight.
They have also had difficulty continuing
vocational programs begun at DWight,
and have been frustrated by excess unscheduled and unstructured free time.
The most visible consequence of the inadequately planned mixing of male and
female correctional populations, however, was that 12 pregnancies occurred
within 10 months of the transfer.
The Citizens Assembly, a bipartisan
legislative agency, supported a study of
the feasibility of sentencing program alternatives for women offenders. A re'Lindsay M. Hayes, et al., The Female Offender in
Delaware: Population Analysis and Assessment, Alexandria, VA, National Center on Institutions and
Alternatives, January 1989, p.18. This report is
available from either Timothy J. Roach, Project
Director, NCIA, 635 Slaters Lane, Suite G-I 00,
Alexandria, VA 22314, 703/684-0373, or Kathy
Mickle-Askin, Executive Assistant, Delaware Department of Corrections, 80 Monrovia Avenue,
Smyrna, DE 19977,3021736-5601.

[The facility's] heightened
security reflects almost a deep
insecurity as to operation.
port completed by the Administrative
Office of the Illinois Courts in October
1987 found that over 80% of incarcerated women in the state are mothers
and that 82.7% of them are single parent heads of their household. Fortythree percent of the women housed at
DWig~t are c1as;fied as minimumsecurity.
.•
The Administtative Office of the illinois Court's report examines several
probation programs, including electronic
home detention and intensive supervision probation, currently available to illinois women. However, the report found
that electronic monitoring, for example,
was inappropriate for female offenders
because pregnant offenders and offenders who are already mothers have
high-risk health care needs and low-level
vocational skills. These women require
more supportive services than those
provided by home detention.
In this context, the Citizen's Assembly's Citizen Council on Women recently concluded the follOWing: the
forced separation of women prisoners
from their children causes long-lasting
and severe psychological harm; county
jails and work-release programs now
being used to alleviate prison overcrowding merely complicate the parentchild reunification process; and community-based alternative sentencing programs are cost-effective and result in a
lower level of recidivism than
imprisonment. 8
Maryland
The Maryland Correctional Institution
for Women at Jessup, according to one
observer, "seems one of the most restrictive prisons in the entire state, and
yet it probably houses the least violent
inmates. It is hard to define the women's
prison because it has changed administrations so often, but its heightened security reflects almost a deep insecurity as
to operation. Throughout the institution
the accent seems to be on custody
-continued on next page
81nformation in this section was culled from these
documents: The 1986 and 1987 annual reports of
The Citizens Council on Women of Illinois' Citizen
Assembly (available from Donna Grinther, Senior
Research Associate, Citizens Assembly, 300 West
Monroe, Springfield, IL 62706, 217/782-4546);
and "Sentencing Alternatives for Illinois Female
Offenders" by Thomas C. Stringer, Jr. (available
from the Administrative Office of the Illinois
Courts, Supreme Court Building, 413 West Monroe, Springfield, IL 62706, 217/524-6247).

SPRING 1989

5

-

I

I

-continued from previous page

rather than rehabilitation and programs.
There has been a drastic increase in security measures: more gates, more razor-wire fencing, and more guard towers. At times it seems there is invisible
writing over the guard towers saying,
"GO ELSEWHERE AND LEAVE US
ALONE."9
Nevertheless, the General Assembly
of Maryland passed a resolution in 1986
"to study the status of women convicted
of crime in the State and the existing
and potential opportunities for rehabilitation of women incarcerated in the
Maryland penal system."
The Committee to Study Sentencing
and Correctional Alternatives for
Women Convicted of Crime was divided
into subcommittees on alternatives to
incarceration: health and mental health;
educational and vocational training and
economic independence; community resources and support; and a profile of
women offenders.
The Committee found that imprisoned women differed significantly from
women in community and alternative
programs. The average female offender
serving time in the community in Maryland is black, unmarried, between the
ages of 23 and 35, a high school graduate (with some college education), as
likely to be employed as unemployed, an
alcohol or drug abuser, and a property
offender. However, the average imprisoned woman in the state is a black, unmarried, 31-year old mother with a history of substance abuse, a documented
history of mental health intervention,
and less than twelve years of education.
She was also probably unemployed, a
multiple-offender, and residing with her
family at the time of her offense.
Furthermore, an American Correctional Association-assisted survey completed in February 1988 for the Committee found that 43% of imprisoned
women were victims of physical abuse,
and 33% surveyed were victims of
sexual abuse.
"When attempting to address what
programs ana services are best suited to
addressing her needs," the Committee's
report concluded, "it is important to remember that the adult female offender
is probably an unmarried mother of minor children, living in an urban area, with
a long-term substance abuse problem.
She is functionally illiterate and employable and needs to earn more than minimum wage and have access to adequate
child care and transportation. She needs
'These observations were made in December 10,
1987 testimony by Florence C. Welch to the Governor's Committee to Study Sentencing and Correctional Alternatives for Women Convicted of
Crime.

6 SPRING 1989

to develop insight into her own behavior
and improve her self-image, and she can
benefit from vocational counsel in?, prior
to employment-related training." 0

Massachusetts
The Massachusetts Correctional InstLtution at Framingham (MCI-Framinghar4),
which houses most of the state's pre-~,:~
trial and sentenced women prisoners"sis
grossly overcrowded (two to three.. ':;' "
times its design capacity). A 67-meri\'Per
Advisory Group on Female Offendef-s
was convened several years ago to 'lxplore services for incarcerated w\>men
at MCI-Framingham.
The Advisory Group found that institutional services are frequently unconnected with prison- as well as community-based programs; that these
institutional services fail to meet the
substance abuse, health care, mental
health treatment, educational, and employment training needs of imprisoned
women in the state; and that alternatives
to incarceration and more county jail
beds are required to link women offenders with community services, and
to reduce MCI-Framingham's pervasive
overcrowding problem.
The Advisory Group recognized that
overcrowding within the institution
would have to be reduced before the
impressive array of potential institutional
program services could be successfully
implemented. Unfortunately, the Group
seems profoundly reliant on bUilding
more jail and prison cells for women to
achieve a lower population. State plans
currently call for more than 500 new
beds statewide by 1993. Several administrative or nonincarcerative measures in
the Group's report-an outstandingwarrant-clearing unit, for instancepromise to have some impact on MCIFramingham's crowded condition. However, the Group failed to develop explicit plans for diverting or deinstitutionalizing enough women for valuable
program services to be offered to
those women who really require
incarceration."

'OA copy of the final report of The Governor's
Committee to Study Sentencing and Correctional
Alternatives for Women Convicted of Crime can
be obtained from Paul S. Hastman, Executive Director, Department of Public Safety and Correctional Services, Maryland Commission on Correctional Standards, 6776 Reisterstown Rd., Suite 303,
Baltimore, MD 21215,301/764-4265.
"Information in this section was taken from Services for Women Offenders in Massachusetts, the final report of the Advisory Group on Female Offenders, and from Report on Female Offenders Oune
1987). Both reports are available from Amy Singer,
Deputy Director for Criminal Justice, Executive
Office of Human Services, One Ashburton Place,
Room 1109, Boston, MA 02108, 617/727-7600.

The Group seems profoundly
reliant on building more jail and
prison cells for women.
Conclusion
Much ofthe information prOVided in
these reports correlates with other
studies of female offenders and imprisoned women. Nonetheless, with the exception of N<;;IA's analysis of Delaware's
female prison~r population, none of
these repor1:;St'bffered more than partial
commitment to the deinstitutionalization
of women prisoners. Moreover, except
for the NCIA report, none of these reports directly challenged state plans for
imprisoning more women.
Still, these reports offer a roadmap
for identifying both the reasons why
fewer women need be imprisoned and
the obstacles which must be overcome
in delineating and enacting a plan for reducing the number of women imprisoned in this country.
In Delaware, women prisoners are
routinely overclassified. In Illinois, corrections officials have shown some resistance to instituting alternative corre~­
tional programs for women. In Maryland,
while some firm directives are given toward making greater use of post-release
community programs, too little specificity is applied toward identifying frontend diversions from the state's prison
system. And, in Massachusetts, some
progressive postures are weakened by
far too much reliance on increasing the
further institutionalization of women
throughout the state.
In the end, NCIA's recommendation
for the state of Delaware applies equally
well to other states considering how to
address recent increases in the use of
imprisonment for women offenders.
"We would strongly recommend that
the state reconsider the cell expansion
path it has chosen. It has been the premise of NCIA that cell space should be
viewed as a precious commodity and reserved for only those who are a danger
to the community, and/or have committed serious offenses. The inmate population analysis detailed within NClA's
study clearly reflects a profile contrary
to the intended use of incarceration. It is
NCIA's opinion that alternatives to incarceration, via increased residential
beds and expanded community supervision options, can be safely and effectively
implemented for a significant percentage
of Delaware's current women's prison
population." II

Forced Drugging
Mark Lopez
Conservative estimates place the number of prisoners suffering from acute
mental illness at 4-5% of the prison
population nationwide. Their numbers
have increased steadily in recent years
because of the growth of the deinstitutionalization movement, with no corresponding growth in community mental
health resources. In those prison systems
where attempts are made to provide
treatment for these prisoners, the typical course of treatment calls for the use
of large doses of psychotropic drugs.
While it is generally agreed that these
drugs can provide great benefits to persons suffering from mental illness, they
also pose a serious risk of severe and,
perhaps, permanent side effects. In addition, they are often administered for
control, rather than for therapeutic reasons. 1 In light of these risks, and the literally "mind-altering" effects of the
drugs, a prisoner's legitimate right to refuse drug treatment should be of primary importance. In most cases, however, prisoners have no choice in the
matter, and if they refuse, they are physically restrained and given intramuscular
injections of the drug.

. . . conjures up thoughts of
Stanley Kubrick's A Clockwork
Orange or Ken Kesey's One
Flew Over the Cuckoo's
Nest ...
If this picture conjures up thoughts of
Stanley Kubrick's A Clockwork Orange or
Ken Kesey's One Flew Over the Cuckoo's
Nest, the comparison does not miss the
mark by much. When the government
administers "mind-altering" psychotropic
drugs--or chemical restraints, as they
are commonlyreferred to-against a
person's will to control behavior, basic
constitutional rights to autonomy and
human dignity are implicated. To assure
that those rights are not transgressed,
absent a life-threatening emergency, psychotropic drugs should not be constitutionally administered against the will of

Mark Lopez is a staff attorney with the
National Prison Project
IWhen National Prison Project staff investigated
the death of a woman prisoner at the Georgia
Women's Prison several years ago, we found that
44% of the entire prison population were being
given psychotropic drugs, most of them
involuntarily.

an individual, unless that individual has
been found to be judicially incompetent
to make treatment decisions. 2

Psychotropic Drugs Cause Serious
and Potentially Debilitating
Physical Side Effects
In urging that a patient's competent
choice to refuse psychotropic drugs
must be respected, this writer intends
no denigration of these medications.
When effective, psychotropic drugs reduce the delusions, hallucinations, and
thought disorders associated with the
most severe psychiatric iIInesses--the
psychoses. 3 For many patients, these
drugs prOVide significant benefits and are

considered the treatment of choice.
Courts have consistently recognized that
"[plsychotropic drugs are considered
more effective than any other form of
treatment in reducing thought disorder
in schizophrenics. "4
Recognition of these potential benefits
should not, however, obscure the risks
of debilitating side effects posed by psychotropic drugs. They cause a wide
range of unwanted physical and mental
effects that can be grave, even fatal. Because side effects occur in a high percentage of medicated patients, and serious side effects occur in significant
numbers, their use is generally recognized as "high-risk treatment."s Medical
-continued on next page

2Much of the analysis that follows was borrowed
from the Amicus Curiae brief of the American Psychological Association, submitted in U.S. v. Charters. 829 F.2d 479 (4th Cir. 1987) (decision on
rehearing en bane. pending).
'See Rivers v. Katz. 67 N.Y.2d 485, 495 N.E.2d
337, 339 n.1 (1986) (medical usefulness "stems
from their ability to influence thought patterns so
as to eliminate psychotic symptoms").

'In re Boyd. 403 A.2d 744. 752, n.13 (D.C.C.A.
1979). See a/so, e.g., Davis v. Hubbard. 506 F.Supp.
915, 927 (N.D. Ohio 1980).
5/n re Guardianship of Richard Roe, 11I.421 N.E.2d
40. 54 (Mass. 1981). See also, Bee v. Greaves. 744
F.2d 1387. 1390-1391 (10th Cir. 1984). cert. denied, 469 U.S. 1214 (1985); Jarvis v. Levine. 418
N.W.2d 139 (Minn. S.Ct. 1988). See also, Mills v.

SPRING 1989

7

-<ontlhued from previous page
treatises.and bulletin~ncluding those
of the American Psychiatric Association--:-t"outinely caution mental health
professionals to take special care to administer these drugs only when necessary and in the minimum dosage
necessary.6
U.S. v. Charters,7 contains the most
thorough examination of the issue. The
court correctly found several side effects
caused by psychotropic drugs, including
extrapyramidal symptoms such as: parkinsonian syndrome, which is characterized
by a mask-like face, drooping, stiffness
and rigidity, shuffling gate, and tremors;
akathisia, which is characterized by
strong subjective feelings of distress and
an often irresistible need to be in constant motion; and dystonic reactions,
which include muscle spasms, irregular
flexing, writhing or grimacing movements, and protrusion of the tongue. s
In In re Boyd, one of the most prominent state court decisions, the D.C.
Court of Appeals also noted nonmuscular side effects that regularly result from
psychotropic drugs, including drowsiness,
dizziness, blurred vision, dry mouth and
throat, "torn up" stomach, low blood
pressure, skin rashes, constipation, and
loss of sexual desire. 9
Many of the physical side effects described above are both frightening and
critical. But the most debilitating effect
linked to psychotropic drugs is tardive
dyskinesia. The New York Court of Appeals in Rivers v. Katz described this condition as "potentially devastating,,,IO and
many other courts have recognized its
potential severity. I I In People v. Medina
the Supreme Court of Colorado summarized the effects of tardive dyskinesia:

This condition produces involuntary
movements of the tongue, lips, and jaw,
Rogers. 457 U.S. 291. 293 n.1 (1982); Rennie v.
Klein. 653 F.2d 836. 843 and n.8 (3rd Cir. 1981)
(en bane); Rogers v. Okin. 634 F.2d 650. 653 and
n.1 (I st Cir. 1980). vacated sub nom. Mills v. Rogers. 457 U.S. 291 (1982); Davis v. Hubbard, 506
F.Supp. 915. 927-29 (N.D. Ohio 1980); People v.
Medina. 705 P.2cf'at 969-970. n.4; and Opinion of
the Justices. 465 A,2d 484. 488 (N.H. 1983). See
Scott v. Plante. 532 F.2d 939. 945 n.8 (3rd Cir.
1976) (describing side effects).
"See, e.g.• Tardive Dyskinesia. American Psychiatric
Association Task Force # 18.
'U.S. v. Charters. 829 F.2d 479 (4th Cir. 1987)
(decision on rehearing en bane. pending).
8829 F.2d at 483 n.2. See also, Mills v. Rogers,
457 U.S. 291. 293 n.1 (1982); Bee v. Greaves. 744
F.2d at 1390-1391; Davis v. Hubbard, 506 F.Supp.
915 (N.D. Ohio 1980); Rivers v. Katz. 495 N.E. at
339 n.l; In re Boyd, 403 A,2d 744 (D.C.C.A. 1979);
People v. Medina. 705 F.2d 961. 968 n.3 (Colo.
1985) (en bane).
9403 A,2d 752 n.13.
'°495 N.E.2d at 339 n.1.
"See, e.g., U.S. v. Charters, 829 F.2d at 483 and n.2;
In re Boyd. 403 A,2d at 752 n.13.

8

SPRING 1989

Many psychotrOPic drugs cause serious side effects, some of which are irreversible.

For many patients, these drugs
provide significant benefits and
are considered the treatment of
choice.
which may include continual cheWing
and lip smacking motions and facial
contortions. It may also be accompanied
by involuntary movement of the fingers,
hands, legs, back, neck, and pelVic area.
In its most severe form, it may interfere
with all motor activity, making speech,
swallowing, and breathing extremely difficult Tardive dyskinesia is of special
concern for several reasons. First, its
symptoms often do not appear until late
in the course of treatment and sometimes do not appear until after treatment is discontinued. Second, there is no
known cure for the condition. Third, it is
impossible to predict who will become a
victim, aside from the tendency of the
condition to affect patients on long-term
high dosages of antipsychotic medications. Finally, the condition is fairly
Widespread, as studies have indicated
that the condition occurs in 10-40%
of patients receivin~ long-term, highdosage treatment 1
Unlike some of the other, milder side
effects described above, which typically
subside when psychotropic drugs are discontinued, tardive dyskinesia often persists long after treatment, and can be irreversible. It cannot be predicted with
any certainty at the outset whether a
particular patient will benefit from psychotropic drugs or experience adverse
12
705 P.2d at 968 n.3 (emphasis added) (citations
omitted).

side effects. In short, the only way to
avoid tardive dyskinesia is to avoid using
psychotropic drugs.

Psychotropic Drugs Can Severely
Affect Mental Processes
The court in U.S. v. Charters correctly
found that these drugs are also "mindaltering," with "the potential to allow
the government to alter or control
thinking and thereby destroy the independence of thought and speech so crucial to a free society."13 As the Supreme
Judicial Court of Massachusetts observed,
psychotropic drugs have a "profound effect ... on the thought process of an individual." 14 While these drugs are effective in ameliorating hallucinations and
delusions, far from uniformly enhancing
the mentally ill person's ability to concentrate and communicate, psychotropic
drugs often diminish these abilities.
Psychotropic drugs can encourage docility and diminish a patient's ability and
inclination to interact with environmental stimuli. The opinion in Charters correctly identified precisely these mental
effects in assessing the potential harms
of psychotropic drugs. I Recognition of
these mental effects has also consistently
led other courts to conclude that psychotropic drugs implicate First Amendment interests by intruding upon a patient's ability to form and communicate
ideas.'6
Furthermore, as the Charters court
correctly observed, the issue of forced
13
829 F.2d at 492. citing Bee v. Greaves. 744 F.2d
at 1394.
14ln re Guardianship of Richard Roe, III. 421 N.E. 40,
53 (Mass. 1981).
15
829 F.2d at 483 n.2. 489.
'"E.g., Bee v. Greaves. 744 F.2d at 1394; Davis v.
Hubbard. 506 F.Supp. at 927-929.

medication will arise not only in cases of
patients who are profoundly disturbed in
all aspects of mental functioning. It will
also arise in cases of patients who may
be delusional in some aspects but mentally sound in others,17 and patients who
are functional but recovering from
short-term emergency treatment for
acute psychosis. In such cases, forced administration of psychotropic drugs precludes a patient's ability to opt for preservation of the "normal" aspects of
mental functioning by foregoing the
medication.

A Prisoners' Constitutional Right to
Refuse Psychotropic Drugs
The Supreme Court has repeatedly
held that "[a]mong the historic liberties
protected by the Due Process Clause is
the 'right to be free from.... unjustified
intrusions on personal security.' "18 The
individual's firmly embedded common
law "right to determine what shall be
done with his own body,"19 is without
question one of the "personal rights that
can be deemed fundamental or implicit
in the concept of ordered liberty" and is
therefore protected by the Due Process

Clause. 2o This right to personal security
mental hospital, a few have involved
and bodily integrity, the Supreme Court
prisoners, mostly pre-trial detainees. 22
has made clear, encompasses a fundaSome courts have based their conclusion on the constitutional right to form
mental interest "in independence in
making certain kinds of important deciand express ideas, others on the constitutional right to privacy, to personal insions" about what will be done to one's
body and mind?1
•tegrity, to personal security, or to sub!Scintive due process. That these courts
Because the forced administration of
\Jf:lave not agreed on a single rationale for
psychotropic drugs intrudes upon not
only these interests in personal security ,.*the right is not an argument against recand bodily integrity, but also upon the .. ',' ognition ofthe right. To the contrary,
sanctity of the mental process, an indi- ,'t: the breadth of constitutionally protected
vidual's right to refuse psychotropici( interests which these courts have cited
drugs is protected by the United States,;r demonstrates thatlorcible administration
Constitution.
of psychotropic dr~gs implicates a panoThe Supreme Court has never
ply of fundamen~k~iberty interests. Resquarely decided what substantive and
gardless of the specific source of the
procedural protections the Constitution
right, the mentally ill, whether in prisons
affords a mentally ill prisoner, patient, or or hospitals, have a constitutionally proother person who refuses psychotropic
tected right to refuse psychotropic
medication. Nevertheless, every lower
drugs that must be respected by the
court that has considered the question
government. 23
in the past decade has concluded that
-continued on next page
the right to refuse psychotropic drugs is
a substantive liberty interest protected
llU.S. v. Charters, 829 F.2d 479 (4th Cir. 1987)
by the federal Constitution-although
(pre-trial detainees); Bee v. Greaves, 744 F.2d 1387
courts have differed in demarking where (10th
Cir. 1984), eert denied, 105 S.Ct. I 187
the right must yield to a compelling gov- (1985) (pre-trial detainees have a constitutional
ernment interest. While most of these
right to refuse psychotropic drugs); Osgood v. Disdecisions have arisen in the context of a
trict of Columbia, 567 F.Supp. 1026 (D.D.C. 1983)

17

829 F.2d at 489.

'·Vitek v. jones, 445 U.S. 480, 492 (1980) (quoting
Ingraham v. Wright, 430 U.S. 651, 673 (1977».
19Sehloendorff v. Society of New York Hospital, 211
N.Y. 125, 129, 105 N.E. 92 (1914) (Cardozo,J.).

>OSee Palko v. Connecticut, 302 U.S. 319, 325
(1937) (Cardozo, J.) (internal quotation omitted).
"Whalen v. Roe, 429 U.S. 589, 599-600 (1977).

Sweden Pushes for Better Conditions
in the Pen
Mark Lopez' article on psychotropic
drugs in this issue of the NPP JOURNAL,
and a recently released NPP publication
entitled "Status Report: State Prisons
and the Courts," underscore two problems in United States' prisons: forced
drugging and overcrowding.
Sweden recently enacted legislation
which outlaws cramped cages and forbids the use of drugs except to treat
disease. Both these measures sailed
through the SweClish Parliament
unopposed.
What is this-a new prisoners' rights
law? Has the Supreme Court of Sweden,
unlike our Supreme Court. issued a landmark decision outlawing overcrowding
in prisons and jails? (See, Rhodes v.
Chapman).
Actually, the Swedish government
long ago prohibited the forced drugging
of prisoners and guaranteed that prisoners would not live in overcrowded
conditions.
The new arena for these rights is
none other than the barnyard: cattle,
pigs and chickens have been freed from
the restrictions of intensive, or factory-

farming, in which animals are kept in
crowded conditions and are administered hormones and antibiotics.
Pigs can no longer be tethered and
must be granted separate bedding and
feeding places. Cattle have been given
grazing rights under the new law. Chickens must be liberated from their small
cages.
The act declares that "all slaughtering
must be done as humanely as possible."
Astrid Lindgren, ai-year old creator
of Pippi Longstocking, the children's
book character, is the force behind Sweden's animal rights movement. She has
written a series of satirical allegories in
leading newspapers in Stockholm underscoring the plight of farm animals. Her
stories are grown-up versions of children's fairy tales.
Animal rights activists hope that the
rest of the world will follow the example set in Sweden. "People have become
sensitive to pig tethering first in Sweden," said Pascal Phelan, president of
Master Pork Packers in Ireland, "but
it's going to come everywhere,
believe me." II1II

(former mental patient has a constitutional right, in
jail, to refuse psychotropic drugs).
"See Rogers v. Okin, 478 F.Supp. 1342 (D. Mass.
1979); Rogers v. Okin, 634 F.2d 650 (I st Cir.
1980); and Rogers v. Okin, 738 F.2d I (I st Cir.
1984) (on remand). See Winters v. Miller, 446 F.2d
65 (2nd Cir.), cert denied, 404 U.S. 985 (1971);
Davis v. Hubbard, 506 F.Supp. 915 (N.D. Ohio
1980); Rennie v. Klein, 653 F.2d 836 (3rd Cir.
1981) (en bane), cert granted and judgment vacated
and remanded, 458 U.S. 1I 19 (1982), on remand,
720 F.2d 266 (3rd Cir. 1983); In re KKB., 609
P.2d 747 (Okla. 1980); johnson v. Silvers, 742 F.2d
823 (4th Cir. 1984); and Rogers v. Commissioner of
Mental Health, 390 Mass. 489, 458 N.E.2d 308
(1983). See .also, Project Release v. Prevost, 722 F.2d
960 (2nd Cir. 1983), and Anderson v. Arizona, 663
P.2d 570 (Ct. App. Ariz. 1982), both of which
hold that patients have a right to refuse psychotropiC drugs and appear to ground that right in
both the federal Constitution and state law. And
see, Knecht v. Gillman, 488 F.2d I 136 (8th Cir.
1973) (mental patients have a constitutional right
to refuse the drug apomorphine); Scott v. Plante,
532 F.2d 939 (3rd Cir. 1976) (complaint alleging
forced administration of psychotropic drugs states
a claim under the federal Constitution); and
Mackey v Procunier, 477 F.2d 877 (9th Cir. 1973)
(complaint alleging forcible administration of the
drug succinycholine to a prisoner in a state mental
facility states a claim under the federal Constitution). Furthermore, although sympathetic to a federal constitutional right, many other courts have
found it unnecessary to reach that question and
have ruled, instead, that involuntarily hospitalized
mental patients have a common law right, a state
statutory right, or a state constitutional right, to
refuse psychotropic drugs. Eg., Rivers v. Katz, 67
N.Y.2d 485, 495 N.E.2d 337 (1986); Goedecke v.
State Department of Institutions, 603 P.2d 123
(Colo. 1979); People v. Medina, 705 P.2d 961
(Colo. 1985) (en bane); Opinion of the justices, 465
A.2d 484 (N.H. 1983).

SPRING 1989

9

~ontinued

from previous page

Of course, recognition of a prisoner's
right to refuse treatment with psychotropic drugs does not mean that right is
absolute. As the Supreme Court made
clear in Youngberg v. Romeo,24 a case involving the use of physical as opposed to
chemical restraints, to determine the appropriate scope of this right requires a
weighing of "the individual's interest in
liberty against the State's asserted reasons for restraining individual liberty."25
In Romeo, the Court held that a profoundly mentally retarded patient in a
state hospital had an individual liberty interest in safe conditions and freedom
from unnecessary restraint. However,
this interest, the Court stated, could be
adequately protected by a legal standard
requiring that "professional judgment
was in fact exercised" in deciding upon
the extent of restraint imposed or of
training given. 26
While Romeo has provided some gUidance in delineating the scope of the right
to refuse psychotropic medication, most
courts have held that, absent an emergency, a competent prisoner's or patient's decision to refuse the medication
should be respected, even if that conclusion differs from the one recommended
by the treating physician?7 This conclusion should not come as a surprise, given
the severity of the potential intrusion
and the difficulty of the calculus respecting the advisability of medication with
psychotropic drugs. The government's
failure to respect a prisoner's competent
decision to refuse these drugs threatens
fundamental principles of personal security and individual dignity. The extreme
difficulty of predicting when administration of the drugs will cause adverse side
effects exacerbates the threat to fundamental interests; government's power to
act must be most restricted where, as in
this case, the decision raises the possibility of serious risks to individual health
and has no clear and predictable outcome. Under these circumstances, the
forced administration of psychotropic
drugs seriously infringes on the constitutional rights bf prisoners who are being
treated as mentally ill.
Counterbalancing the state's interest
in administering such medication in
emergency situations, the courts have
found that state officials have a legitimate interest in forcibly medicating prisoners or patients who are dangerous to
themselves or others, or who pose an
24

457 U.S. 307 (1982).
25ld. at 320.
26ld. at 321-324.
27See e.g., U.S. v. Charters, 829 F.2d at 495-497;
Bee v. Greaves, 744 F.2d 1387; In re the Mental
Commitment of M.P., 510 N.E.2d 645 (S.Ct. Ind.
1987).

10 SPRING 1989

Political Fallout Means Fewer
Furloughs
Rosemary Barberet

~

On furlough from a Massachusetts 9~
prison in 1986, convicted murderer ~I­
lie Horton raped a Maryland woma~'cimd
attacked her fiance. This one incidept
proved to be extremely damagingt6
Governor Michael Dukakis' campaigii for
the presidency.
The "Horton incident" provided a
convenient setting from which to launch
an uninformed and divisive debate
geared to stimulate fear and its companion-racism--among the public. It was a
difficult tactic to counteract-partly because defending rehabilitative programs
for prisoners is no longer fashionable,
and partly because racism in the 1980s
has become more subtle. Rather than
commending a rehabilitative furlough
program that posed little threat to public safety, Dukakis and his supporters
were eager to erase the whole incident
or blame it on a previous Republican
administration.

Rosemary Barberet, an NPP volunteer, is a
doctoral student in criminology at the University of Maryland and a former research
analyst for the Massachusetts Parole
Board.
immediate and substantial threat of becoming violent. Under these circumstances, the state's police power interest
in preserving order and protecting patients and staff within the institution will
be sufficient to override the patient's refusal of psychotropic drugs if-but only
if--other less intrusive approaches
would be ineffective in preventing
violent behavior, and only for a short
duration pending a court competency
hearing?8 In the absence of such an
emergency or a finding of incompetency,
prison officials may not unilaterally administer psychotrogics to a prisoner
over his objection. 9
Although prison officials have an interest in the safe and orderly administration
of their prisons, this interest has never
been held to be sufficient in itself to
override a competent individual's right to
accept or refuse medically indicated
treatment. Were the medical treatment
at issue here an intrusive or risky procedure such as bypass surgery, a mastectomy, or dialysis, it is inconceivable that
the Constitution would be held to per28U.S. v. Charters, 829 F.2d 479, and cases cited
therein.
>Old.

The facts about furlough
programs have failed to surface
in the mass media.

,

NationwidEt'reaction to Horton's act
appears to have jeopardized the privileges and programs of prisoners and
their families. What long-term effect will
the Horton incident have on corrections
policy generally, and on community reintegration programs specifically?
According to "The Lessons of Willie
Horton: Thinking About Crime and Punishment for the I990s," a report issued
in February 1989, by The Sentencing
Project, a nonprofit organization based
in Washington, D.C., Bush's success in
using the Horton incident was due to
several factors: cleverly simplified "sound
bites" produced by the Bush campaign;
Dukakis' inability to rebut the charges; a
simplification of the issue portraying
Bush as "for victims" and Dukakis as
"for criminals"; the use of Horton as a
dramatic symbol for a complex problem;
and the public's fear of crime and lack of
mit the federal government to force a
competent adult to undergo such treatment against his or her will. There is
simply no principled distinction between
the chemical invasion of drug therapy
and the mechanical invasion of surgery.
Because psychotropic drugs are similarly
intrusive and pose the risk of similarly
unwanted side effects, a competent decision to refuse these drugs must likewise
receive constitutional protection. l1li

Author's note: Since the completion of
this article, the panel opinion in U.S. v.
Charters, supra, has been reversed by the
Fourth Circuit Court of Appeals sitting en
banco See, U.S. v. Charters, 863 F.2d 302
(4th Cir. 1988). Purporting to follow the
standard announced in Youngberg V. Romeo, 457 U.S. 307 (1982), the full court
held that the initial decision on the nonconsensual use of anti-psychotic drugs may
be left to prison doctors. And in Washington

V.

Harper, 43 Crt 2285 (7/7/88),

where the Washington Supreme Court held
that a state prisoner has a due process
right to a judicial hearing before being administered anti-psychotic drugs against his
will, the U.S. Supreme Court granted certiorari earlier this year to determine
whether judicial intervention is a constitutional prerequisite. 109 S.Ct-(I989).

.

.

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Va. Halts Furloughs for Inmates·Con~.
pended withoutannouncemel1t Nov:saulted" herh~sband':'whiJe;,~ii"::'f~~~:":':''ill T~.i':fJrli>lign:
3. "We're ba~ic.aJh.. ~:>tli ...... ~,.......... ,:",:~ ",-o~~~:' '",'.',,:::',,',,",,/: i::;'_ ~",::-:".; ... l-;:-~,~:";"~' ,'c_,'" ':;~::

<:: "', ",; ,.:::::.:-;-.:;." ': .:' ".,';:::.-::.'.~,':::'.",:'(':'.,~<-',"':' . :::":,:.;'::';'::':\'/':(-. leave,for' 21,jnmates':anrl,.an~,;:.',.·;·tinnp . rrn-;::>t,,:~ll~tj~~~~~'i~:~'~k':; ,",'
"THE NEW YORK

TIM~.THVRSDAY,

~.

NQ'VEMBER24.198!• .

The Facts: The Contact Center's
Comprehensive Survey
Defenders of the reintegrative and rehabilitative benefit of furloughs may find
themselves strange bedfellows of supporters of furloughs because they can
serve to control prisoners. Yet, the
"pro-furlough" view has received little
attention. Even the facts about furlough
programs have failed to surface in the
mass media.
The Contact Center in Nebraska conducted a survey of furlough practices
around the country from May to September of 1988. Published in the August
and September-October issues of their
newsletter Corrections Compendium, the
survey found "Widespread, successful and
relatively problem free [use of furloughs]." All states, the Federal Bureau
of Prisons (BOP), and the District of
Columbia have some form of temporary
release program for prisoners. About
200,000 furloughs were granted in 1987
for more than 53,000 inmates. All but
three states reported success rates over
90%. Furthermore, almost every system
considered furloughs to be helpful for
both reintegrative and institutional control purposes.
Thirty-six states, the Federal Bureau
of Prisons and the District of Columbia
allow furloughs for prisoners serving life
sentences. Six of these systems rarely
grant furloughs,Jor lifers, even though
furloughs for lifers appear generally successful, as they are for other inmates.
Two states which allowed furloughs for
lifers without parole in 1987-Massachusetts and Arizona-have since rescinded
that policy.
At least six states--Texas, Virginia,
Maryland, Virginia, Louisiana and Michigan--are considering revision of their
furlough policies. Says Hardy Rauch of
the American Correctional Association,
"This was bound to happen. If you see a
fire in your neighbor's house, you are
going to be darn sure that your fire
alarm is in working condition."
Texas officials admitted that they took
a second look at their program as a re-

"How do you prepare the
offender for coming back out into Chris Dodson: The Denial of
Furloughs Punishes the Family
society? That's the correctional
For Chris Dodson, family member of
dilemma."
In Virginia, most violent offenders
have not been granted furloughs since
November 1988, even though they may
be eligible for them under department
policy; inmate highway work crews have
also been curtailed. "What do you replace the furloughs with?," deputy director of corrections Edward Morris told
the Boston Globe in February. I "How do
you prepare the offender for coming
back out into society? That's the correctional dilemma. It's the public safety
short-term versus the public safety longterm."
In Mississippi, where nonemergency
furloughs are allowed only around the
Christmas holidays, the names of 350
I Pamela Reynolds, "Furlough Programs Still Reeling
From 1988," The Boston Globe, (February 16,
1988).

Lewis Dickinson, a first degree lifer at
Norfolk prison in Massachusetts, the
Horton incident had grave consequences
for her family and her future--yet no
newspaper covered her story.
When furloughs were first suspended
for first degree lifers in Massachusetts in
June 1987, the year follOWing Horton's
infamous furlough, prisoners and their
families were told it was temporary, in
order to conduct "psychological reviews." Prisoners were told that the furlough program was over. Then at 2:00
a.m. one morning in December 1987, all
first degree lifers in minimum security
were moved to higher security settings.
At that time, Lewis Dickinson had
served 14 years for first degree murder,
and had been going on furloughs for
three years.
The change from a hard-earned mini.mum security placement to a higher se-continued on next page

SPRING 1989

II

.

. . . . . ". ~.tlll.itf{
.:~,."-,,.,.:.c

-continued from previous page

I
I·.
",

j

I

I

curity one-especially one that appeared
to be for purely political reasons--was
devastating for both prisoners and their
families. Dickinson's young children refused to visit him at the medium security
facility because they were intimidated by
the clearly prison-like atmosphere and
the stricter searches. Dodson has seen
other relationships dissolve and other
families suffer.
What Dickinson misses most, of all his
privileges, is his work release and the
furloughs that enabled him to attend
events at the state mental hospital
where he worked. That is where he and
Dodson, an administrator, first met.
"That's what really kept him going,
really made him feel like a contributing
member of society," says Dodson. "In
the mental hospital, Lewis helped run
treatment groups for chronic schizophrenics. He and others umpired Little
League games."
Robert Kessler, superintendent of
the Acton Schools, where five lifers held
clerical and maintenance positions, protested to the governor when his workers were recalled. "He wanted his lifers
back," said Dodson. "He felt they were
honest, trustworthy employees who did
not deserve to be pulled from their
jobs."
Dickinson and Dodson hope that he
will be granted a sentence commutation
to second degree murder, which would
make him eligible for parole. Although
chances of that are slim, they cling to
the hope. Furloughs had been one way
to prove that Dickinson was ready for
life on the outside again. "I never understood what hope was before I went
through this; it's as necessary to human
beings as air," reflected Dodson.
Lifers, ironically, are often the "best"
inmates. Key to understanding the reason for this, according to Dodson, is
understanding institutionalization. "It's a
psychological change that is hard to
imagine. You build up stakes in conformity." Dodson, who has been asked to
teach a course on "Prisoners and Families" at the University of Massachusetts
12 SPRING 1989

L.

at Boston, is frustrated by the high public expectations regarding reintegration.
"We thought that a 98% success rate
for the furlough program was good. We
were told it was not good enough."
Linda Thurston: It Looks Like
Prisoners Won't Reintegrate
Gradually Anymore

Linda Thurston is the coordinator of
the American Friends Service Committee's Criminal Justice Program, based in
Roxbury, Massachusetts. She was familiar
with the Horton incident and its aftermath through her network of prisoners
and their families, and her work with
various inmate committees in the Massachusetts prisons.
Thurston works on the Massachusetts
Commissioner of Correction's AdVisory
Group on Long Term Offenders, established to deal precisely with the aftermath of the Horton drama.
Thurston is most concerned that the
reaction to the Horton incident is the
beginning of a trend. "It used to be, you
went into maximum, gradually worked
your way out, so you didn't get paroled
from behind a wall. You had furloughs,
you had work release. Now, it looks like
there's more bUilding of maximum security facilities than of minimums. It looks
like every prison is turning into a maximum security prison. It looks like prisoners won't reintegrate gradually
anymore."
Norma Gluckstern: The Reaction
to the Horton Incident Has Gone
Beyond Punishment

The Patuxent Institution in Jessup,
Maryland recently came under fire when
the public learned of Robert Angell's
furloughs. Norma Gluckstern, a psychologist and director of Patuxent, took a
strong stance defending the leave system
and its rehabilitative value. Her position
changed, however, under public and political pressure. No less convinced that
furloughs are essential to Patuxent's
unique system, Gluckstern told the NPP

JOURNAL:

__

.. > .... ,..

",:-':':!..'_.',".;

"It's clear I believe in rehabilitation.
But my role now is to show you the
consequences of your act. You, the citizens, the legislature, make your decision.
I'm free then to make a decision as to
whether this is a system I want to be
part of. We did what we were supposed
to do, what we were charged to do."
Furloughs are an important carrot in
Patuxent's four-level system for violent
offenders. Patuxent offers a semi-behavior modification approach where responSibility and privileges increase as the offender's behavior and response to
therapy improve. It has its own parole
board and parole officers. Prisoners
serving life sentences, if selected for
Patuxent, can conceivably be released
earlier than if they served their terms at
other Maryland correctional facilities.
Stressing that furloughs are most vital
at Patuxent for their reintegrative function, as a prison administrator Gluckstern recognizes their strength as a control mechanism. "If an inmate doesn't
have any hope, then why bother behaving himself in the institution? A furlough
is something to look forward to. If you
deny all leaves and furloughs you are
going to be setting up correctional facilities that will be very difficult to manage
or maintain. For a correctional manager,
furloughs are a way of maintaining security and custody within a correctional
institution."
Gluckstern has predicted that the
1989 Maryland legislative session will
limit Patuxent's discretion. She anticipates that criminal justice decision-making will become more and more political, but hopes that no "radical surgery"
will be done on prison programs.
Not one to underestimate the impact
of the Horton symbol, she says, "The
Willie Horton incident allowed American society to express this incredible
fear they have about crime in general. It
just fueled that kind of fear. The anger
that you hear-it goes beyond punishment. We have had incidents like this
before, yet there has been no tremendous outcry like this one, absolutely
nothing like this."

Gluckstern says the issue boils down
to values. "To what degree is the community morally or ethically committed
to supporting or helping some of these
people? It's the judeo-Christian ethic. If
we don't want to take any risks, we can
lock people up forever, if that's the kind
of society we are." •

Editor's note: Gluckstern's predictions were
correct The 1989 legislature narrowed the
eligibility requirements for entering the
program, and tightened the criteria for
release. The review board has been restructured to give it a more victim's rights
voice. Gluckstern and the chief psycholo-

gist have since resigned.
For further information, see:
I. "Furloughs," Parts I and II and "Furloughs for Lifers," Corrections Compendium, Contact Center, Inc., P.O. Box
81826, Lincoln, NE 6850 I (surveys reported in the August and September'0'
October issues).
~
2. "The Lessons of Willie Horton:
'-:"i
Thinking About Crime and Punishment /f'
for the I990s,', The Sentencing ProjecF~' ,
Washington, D.C., February 1989.
,,:J
3. Patuxent Institute, descriptive brQ'~
chure. Available from Fran Kessler, Patuxent Institution, P.O. Box 700, jessup,
MD 20794, 301/799-3400.

FDR THE RECDRD
•
Representatives of victim-offender
groups have established the U.S. Association for Victim-Offender Mediation
(USAVOM), an organization committed
to serving a broad and inclusive network
of victim-offender reconciliation and mediation groups operated by both private
and public agencies.
The organization aims to provide information about,victim-offender programs to the gel'{eral public and to en;'iJ-eontinued on next page

1III 1I11.I'E
judy Greenspan
A brief look at the history of AIDS in
prison shows a series of struggles and
conflicts.
• December 1987: Prisoners set up
support groups to organize against mistreatment of prisoners with AIDS in the
federal prison system.
• May 1988: In New York State,
prisoners report that their efforts to establish a prisoner-run AIDS education
program has been blocked by corrections officials.
• june 1988: Rhode Island passes
AIDS legislation prOViding for the mandatory HIV testing of all state prisoners.
• September 1988: Prisoners' Legal
Services of New York files suit against
the New York State Commission of
Correction to protest the designation of
a special dorm for prisoners with AIDS
at the Greene Correctional Facility in
Coxsackie.
• October 1988: Congress passes
national AIDS Omnibus Bill which mandates HIV testing of all people convicted
of sex- or drug-related crimes.
• October 1988: Over 2,000 people
with AIDS and...their supporters shut
down the Food and Drug Administration
(FDA), demanding immediate release of
all experimental AIDS drugs and an expansion of drug programs. ACT-UP, a
national organization of AIDS activists,
calls for an end to mandatory prisoner
testing for AIDS.
In recent months, legislators have
passed laws, prisoners' rights activists
have filed lawsuits, prisoners have attempted to organize, and protesters
have registered outrage at government
policies. All the while, prisoners with
AIDS suffer in our jails and prisons from
medical neglect and discrimination. Not
only are their lives being threatened as a
result of the deadly disease AIDS, so is

1988 Survey on AIDS and Prison
AIDS & Prison: The Facts for Inmates
and Officers (available soon in Spanish)
1988 Bibliography on AIDS in Prison
While the newly issued AIDS and
prison education booklet has been ordered by many jail and prison administrators, the most enthusiastic response to .
the booklet has come from prisoners.
Prisoner publications such as the AngoJite
in Louisiana and Pro Se in New York
have helped spread the word about the
pamphlet, which is distributed free to
prisoners. In the past three weeks, over
300 prisoners have requested copies of
the booklet to distribute in their facilities. A group of Alabama state prisoners
recently asked their prison to purchase
1,000 copies. When the corrections administration refused, the inmates began
j their own fund raising campaign to pay
... for the AIDS educational booklets.
~
Now, in addition to the other information made available, the NPP JOURJudy Greenspan, AIDS information coordinator
NAL is beginning a regular column to
for the NPP, will contribute a regular column
keep readers informed about the most
on AIDS in prison to the NPP JOURNAL
up-to-date facts on AIDS in prison. The
their right to privacy, to due process,
column will be written by NPP AIDS inand to freedom from cruel and unusual
formation coordinator, Judy Greenspan.
Some of the future articles will cover:
punishment.
The National Prison Project has taken
• up-to-date information on legislation affecting prisoners with AIDS;
the lead in fighting inhumane, unjust
prison conditions and practices for both
• interviews with HIV-infected prisoners and PWAs (people with AIDS);
HIV-infected prisoners and prisoners
with AIDS. The NPP opposes mandatory
• interviews with corrections and
medical experts on AIDS;
testing of prisoners, segregation based
on seropositivity, and the denial of ade• the latest medical information on
quate medical care and programming for AIDS;
HIV-infected inmates and those with
• developments in the courts, particularly on AIDS cases which may affect
AIDS. (See "AIDS Policies Tested in
prisoners.
Alabama Prison Case," NPP JOURNAL,
Meaningful and ongoing education for
Number 17, Fall 1988.)
both prisoners and corrections staff is
The NPP has recently released three
our best weapon against the disease.
publications to aid this education
campaign:
SPRING 1989

13

-continued from previous page

courage networking among association
members and the broader justice community. USAVOM offers information
services, a membership directory, a
newsletter, a job bank service and an automated management information sys-:~,
tem. USAVOM also presents an annual. :;}
conference and has scheduled this year'~I~
conference for june 10-1 3 in St. Paul,:l1
Minnesota.
The PACT Institute of justice wilke
provide administrative support to th~~
new association. New memberships are
encouraged. For more information,contact john Gehm, Secretary, U.S. Association for Victim-Offender Mediation, 254
S. Morgan, Valparaiso, IN 46383, 219/
462-1127.
•
1989 marks the Bicentenary of the
French Revolution. To pay this occasion
tribute, an international poster
exhibition has been assembled by the
French government-appointed "Mission
for the Bicentenary of the French Revolution and the Declaration of the Rights
of Man and the Citizen." The exhibition
features original work by 65 of the
world's most acclaimed poster artists
who based their designs on the concept
of the Declaration of the Rights of Man.
The show opens in May 1989 and will
be shown simultaneously in hundreds of
locations around the world. Arrangements have been made to place the exhibition in prisons in a number of countries, and discussions about the exhibit
are taking place with prison officials in
the U.S.
The exhibition was a prize-winning
entry in the "Invent 89" competition organized by the Grande Halle at the Parc
de la Villete, and is one of the few projects commemorating the Bicentenary
with an international outreach.
For more information, contact Gilbert
Fillinger and Bruno Ughetto, Artis 89,
48 rue Lepic, 75018, Paris, France.

The Rights of Man exhibition will feature posters by internationally acclaimed poster artists,
including these contributions by Roger Pfund of
Switzerland (above) and M&CO of the U.S.A.
(below).

g;

'f
:::.

~

~

13
14 SPRING 1989

• The 13th Annual Conference on
Correctional Health Care, sponsored by
the National Commission on Correctional Health Care, will be held November
9-11, 1989, in Chicago. More than 600
professionals in correctional health care
and related fields are expected to attend
the conference, which is considered to
be among the most important of all annual correctional health care educational
meetings. The Commission includes representatives from 31 professional organizations concerned with health care or
corrections. Conference planners are
currently developing an agenda of speakers. For more information, contact
NCCHC, 2000 N. Racine, Chicago, IL
60614, 3121528-0818.

• The National Institute of Corrections (NIC) and the Kutak Foundation
have made available the third monograph
in the series, Research in
Corrections.
"Pretrial Release: Concepts, Issues,
and Strategies for Improvement," by
Stevens H. Clarke, summarizes research
and law on pretrial release and the effectiveness of various approaches for its
improvement. Charles Worzella and
Bowne Sayner, both of Wisconsin
Correctional Services, and Michael
Schumacher, c"~f probation officer in
Orange Countx~ California, respond with
practical advic~ on applying Clarke's
findings to local corrections.
Complimentary copies of this publication are available from the NIC Information Center, 1790 30th Street, Suite
130, Boulder, CO 8030 I. Single copies
of the first monograph, "Statistical Pre-

Guns Kill People,
Too
• Researchers at the universities of
Washington, British Columbia and Tennessee compared rates of various crimes
between 1980 and 1986 to determine .
whether stringent Canadian restrictions
on handguns, enacted in the late I970s,
affected the frequency of murders and
assaults.
Although the overall rate of assaults in
Seattle was only slightly higher than that
of Vancouver (a city similar to Seattle in
most respects other than its handgun
laws), assaults involving firearms (about
85% involving handguns) were nearly
eight times more frequent.
The study appeared in a November
1988 issue of The New England Journal of
Medicine. Previous studies have been
flawed, some experts say, because they
compared data from countries with
Widely varying cultures. The authors said
they chose Vancouver and Seattle because they are of similar size and share
many geographic, economic, and cultural
traits.
The report said that, while more research is needed, "the results suggest
that a more restrictive approach to
handgun control may decrease national
homicide rates."
Paul Blackmun, research coordinator
for the National Rifle Association, accused The New England Journal of Medicine of publishing "shoddy social science
research."
Canada abolished the death penalty
and enacted strict handgun control legislation in 1976. The Canadian homicide
rate has gone down every year since,
according to the Solicitor General of
Canada.

diction in Corrections," by Todd Clear,
Ph.D., and the second monograph, "The
Effects of Diet on Behavior: Implications
for Criminology and Corrections," by
Drs. Diana Fishbein and Susan Pease, are
also available at the same address.
Research in Corrections is edited
by Joan Petersilia at the RAND Corporation in Santa Monica, California.

•

Nurturing Today, a quarterly journal,
announces the publication of a special issue entitled "Families of Prisoners." This
expanded, 48-page issue includes a wide

I

range of articles by noted family and
corrections authorities. Authors include
Ellen Barry on prenatal care for pregnant mothers; Ann Adalist-Estrin on
"Parenting Behind Bars"; Jean Harris on
the Bedford Hills summer program for
children; James W. Mustin on the role of'i,
the family in the correctional process;
and John Smykla on families of death''''?
row inmates.
/~"
A special section, "The Fathers'
""
Exchange," is devoted exclusively to a~~
ticles on prison fathering. Another se¢;
tion, "Nurturing Program Review,"

1

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

The National Prison

- L - Project JOURNAL,
$25/yr. $21yr. to prisoners.

QTY.COST

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. 8th Edition, published December
1988. Paperback, $25 prepaid
from NPP.

Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
subject contained in our files.
Includes information on abortion, behavior modification
programs, lists of other bibliographies, Bureau of Prison
policies affecting women in
prison, juvenile girls, women in
jail, the problem of incarcerated mothers, health care, and
general articles and books. $5
prepaid from NPP.

Offender Rights Litigation:
Historical and Future Dev;lopments. A book chapter
by Alvin J. Bronstein published
in the Prisoners' Rights
Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys
the state of the law on various
prison issues (many case citations). 24 pages, $2.50 prepaid
from NPP.

A Primer For Jail Litigators is a detailed manual with
practical suggestions for jail litigation. It includes chapters on
legal analysis, the use of expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case citations and correctional standards. Ist Edition, February

Fill out and send with check payable to

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

looks at different institutional programs
developed to improve the quality of
family life.
"Families of Prisoners" also features
an extensive list of resources, including
a reading list for adults and children.
Poetry, book and film reviews, and
photographs round out the issue.
Single copies are available for $5; bulk
orders are available at a 40% discount.
A 50% discount is available on orders of
50 or more copies. To order, contact:
Nurturing Today, 187 Caselli Avenue #A,
San Francisco, Ct 94114, 415/861-0847.

1984. 180 pages, paperback
$15 prepaid from NPP.
I
The Jail Litigation Status
- L - Report gives a state-by-state
listing of cases involving jail
conditions in both federal and
.dl6\ state courts. The Report covY' ers unpublished opinions, consent decrees and cases in
progress as well as published
"",,':"",; decisions. The Report is the
...
first nationwide compilation of
litigation involving jails. 1st
Edition, published September
1985. $15 prepaid from NPP.
I
AIDS in Prison Bibliog- L - raphy lists resources on AIDS
in prison that are available
from the National Prison Proj-

:~i{,;i~~ ~n~ :~r~:~~:~~~~~s i~~Ud'_

AIDS, educational materials,
medical and legal articles, and
\~ recent AIDS studies. 31 pages.
< $5 prepaid from NPP.

AIDS in Prisons: The Facts
for Inmates and Officers is
a simply written educational
tool for prisoners, corrections
\ staff, and AIDS service provid\,'\ ' ers. The booklet answers in an
~~
easy-to-read format commonly
,
I asked questions concerning
~ the meaning of AIDS, the
•
medical treatment available, Ie~ gal rights and responsibilities.
Sample copies free. Bulk orders: I00 copiesl$25. 500 copies/$IOO. I,000 copies/$150
QTY. COST
prepaid.

~

¥'!

~

NAME

_

ADDRESS

_

CITY, STATE, ZIP

_

SPRING 1989

15

1Illillllllll.
The following are major developments
in the Prison Project's litigation prbgram
since November 15, 1988. Further details of any of the listed cases may be
obtained by writing the Project.
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, Fifth and
Eighth Amendment rights. In September,
defendants appealed the district court's
decision in favor of the plaintiffs, and
oral argument was held March 17, 1989,
in the D.C. Court of Appeals.
Harris v. Thigpen-This case challenges the Alabama Department of Corrections' program to test all prisoners
for HIV antibodies, and to segregate
those who test HIV-positive. On November 22, the court denied defendants'
motion for summary judgment on the
testing issue, citing their failure to state
any rationale for their mandatory testing
program. A trial was scheduled in late
March, 1989.
Inmates of Occoquan v. D.C.-This
case seeks to improve conditions and relieve overcrowding at the District of
Columbia's Occoquan facility. Parties engaged in intense settlement negotiations
but were unable to reach an agreement
before the scheduled trial date. Trial was
completed in January 1989, and post-trial
briefs were filed in March.

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

New AIDS Update Column.
See page 13.
16 SPRING 1989

~

Maryland Jails: Hendricks v. Welc~
Macer v. DiNisio, Dotson v. Satte~.
field-These cases, filed by the Prison,
Project and the Maryland ACLU, ch~;
lenge conditions and practices in thr~
jails on Maryland's Eastern Shore. I",November, the court granted our fe~ petition in Dotson in full. Defendants filed
motions asking the court to reconsider
its order, but their motions were denied
on January 20, 1989. Our fee claim in
Hendricks was settled in February.
Palmigiano v. DiPrete---This case
challenges conditions in the Rhode Island
state prison system. The parties and the
judge met for a status conference on
January 31, 1989, to discuss the defendants' plan to relieve overcrowding. Defendants, who were found in contempt
for violating population limits at the Intake Center, must achieve full compliance with the court order by February
20 or pay fines which could amount to
$10,000 a day. Discovery commenced on
overcrowding at other facilities.
Anderson v. Orr-In 1987, the National Prison Project joined as co-counsel in this pending suit challenging conditions at the Westville Correctional
Center in Westville, Indiana. A settlement agreement has been filed with the
court covering all issues and we are
awaiting approval.
Dickerson v. Castle---This case challenges conditions in the Delaware prison
system. In November, the Court of
Chancery in Delaware approved a settlement covering all four of Delaware's ma-

jor prisons. The settlement includes provisions covering overcrowding, physical
plant improvements and sanitation, medical care, and access to the courts. Legal
Aid of Delaware will undertake primary
monitoring of compliance.

,

Estevez v. P~elps-This new case,
filed with the Tulane University Law
Clinic and the New Orleans ACLU affiliate, challenges conditions in the Orleans
Parish Prison in New Orleans, Louisiana.
The alleged unconstitutional conditions
include inadequate medical and psychiatric care, overcrowding, unsanitary liVing
conditions, and high levels of violence.
The facilities house both pre-trial and
sentenced prisoners, women, juveniles,
federal prisoners and mentally ill individuals awaiting bed space in state mental
hospitals.
Murray v. Giarratano--This case,
filed by a former named plaintiff in the
Mecklenburg Correctional Center case;
challenges the denial of access to court
for prisoners on death row in Virginia.
Following a favorable decision in the trial
court and full Fourth Circuit Court of
Appeals, the Supreme Court granted review. We filed a friend of the court
brief in the Supreme Court urging
affirmance.
Knop v. Johnson-Our favorable decision involving conditions in four Michigan
prisons has been appealed and our first
brief was filed in January. A hearing on
our claim for attorneys' fees was held in
early March.

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