ing, the wheel has been invented. The
various lists of standards (American Correctional Association, American Bar
Association, American Law Institute,
United Nations, National Sheriffs' Association, American Medical Association,
American Public Health Association,
National Fire Protection Association,
state food protection, etc.) should be
consulted. We often forget that there
are likely to be analogous standards
developed outside the institutional setting that may carry even more weight
with the courts.•For example, the

NUMBER 2,

ISSN 0748·2655

WINTER, 1984

Strategies for
Future Prison Litigation

My experience is that the courts
give such deference to corrections
officials in these cases that the
officials honestly do not believe
they actually have to comply with
the orders-certainly not in a
timely fashion. Contempt should
be built into the timetable.

Ralph Knowles
One need not be reminded that
"institutional litigation" is currently out
of favor with the Reagan Administration's Justice Department and with the
current Supreme Court of the United
States. [See, e.g., Rhodes v. Chapman,
432 U.S. 337 (1981); Youngblood v.
Romeo, _U.S._, 102 S.Ct. 2452

(1982); Pennhurst State School & Hospital
v. Halderman, __U.S.__ , 104 S.Ct.
900 (1984); Block v. Rutherford,
_U.S._, 104 S.Ct. 3227 (1984);
Hudson v. Palmer, __U.S. __ , 104
S.Ct. 3194 (1984)]. Litigators around
the country are facing increasing hostility
as they attempt to enforce the Constitution behind the walls of jails, prisons
and mental health institutions. That hostility is likely to grow. Consequently, we
might all be served well by reflecting on
our experiences in prison litigation in the
past to determine which tactics and
strategies have worked and which have
not, so we can put our very best case
forward. Anytiling less will no longer
succeed.
The following thoughts assume a
"totality of conditions" lawsuit but similar issues must be addressed even in a
narrower piece of litigation. I
I. INITIATING THE LAWSUIT
A first and crucial consideration is
to identify two factors: (I) What are
the most needed items of relief for the
'Some experienced Iitigators are now having
second thoughts on whether totality litigation (in
the historical sense--'-attacking all the conditions
in a system or institution, as opposed to a totality approach to a specific problem, e.g., conditions in a segregation unit) is the litigation of
choice at the moment.

plaintiffs and, (2) which important items
of relief will be the most difficult to get
into an order and to then enforce.
Once those items are identified, the
strategy with the court or negotiations
with the defendants can evolve-always
maneuvering to assure the inclusion of
those items even if others have to be
compromised or even left out.
Obviously, various "checklists" are
available and should be utilized by litigators to make sure as many factors as
possible are being considered in deciding
what should be included. Although there
is certainly still room for creative think-

American National Standards Institute,
Inc., (1430 Broadway, New York, New
York 10018), has approved nearly 8,500
industry standards recognized voluntarily
by the various industries in safety areas.
Moreover, there is no shortage of .
prior orders as well as law review and
other professional journal articles dealing
with the various issues which usually
arise. These should certainly be consulted. [See, e.g., Thornberry and Call,
"Constitutional Challenges to Prison
Overcrowding: The Scientific Evidence
of Harmful Effects," 35 Hastings L.].
313 (Nov. 1983)].
-continued on page 7.

The Legal Implications
of Privatization
Alvin J. Bronstein
In the last issue of the JOURNAL
(Fall 1984), we described the new trend
towards private management and operation of jails and prisons and discussed
some of our policy concerns. The legal
implications of this movement are many
and will vary depending upon the particular contractual arrangement, the statutory authority (if any) for private prison
operations, a particular set of facts, and
differing public entity immunity laws.
Differences in state law concepts may
dictate different results on the same
issue in neighboring states. Therefore,
we will attempt to address only some
general legal implications based upon
Federal statutes and the Constitution.

Public officials who work for state
and local governmental agencies can be
sued for the violation of a prisoner's
rights under 42 U.S.c. § 1983 (The Civil
Rights Act) because their actions constitute "state action" or are considered to
take place "under color of state law."
Although the state itself may not be
sued under the Civil Rights Act b.ecause
of the 11th Amendment, the Supreme
Court recently held that local governments and their agencies may be sued
under the Act for constitutional violations arising from a "policy statement,
ordinance, regulation or decision officially adopted and promulgated by that
-continued on page 2.

A PROJECT OF THE AMERICAN CIVIL.. LIBERTIES UNION FOUNDATION, INC.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _1II_F'l••.'111=

_

-continued from page I.
body's officers" or even a "custom."1
And unlike individual governmental
employees, a local government is not
entitled to the defense of qualified
immunity.2
It is difficult to imagine a situation in
which a private prison owner or operator would not be held suable as acting
under color of state law or as a state
actor. Both the "public function" and
"close nexus" tests articulated in § 1983
case law promulgate standards that make
this kind of suit particularly applicable in
a private prison situation. The persuasiveness of the case law is bolstered by a
strong common sense argument that
states and local governments cannot
contract away their duty to provide
constitutional conditions of imprisonment for those whom they arrest, convict, andlor sentence. For "when private individuals or groups are endowed
by the State with powers or functions
governmental in nature, they become
agencies or instrumentalities of the State
and are subject to its Constitutional limitations." Woodall v. Partilla, 581 F.Supp.
1066, 1076 (N.D. III. 1984) [quoting
Evans v. Newton, 382 U.S. 296, 299
(1966)].
When a private party (as compared
to a state employee) is sued for violating
the Constitutional rights of a prisoner,
the plaintiff, in order to prevail, must
show that the deprivation complained of
was the result of action taken "under
color of state law." Generally, this
showing is made when it has been determined that the requirement of •'state
action", which must be met in order to
bring an action under the Fourteenth
Amendment, has been fulfilled. Lugar v.
Edmondson Oil Co., 102 S.Ct. 2744
(1982). The first inquiry is whether the
deprivation resulted from the exercise
of a right or privilege having its source
in state authority. Clearly, the answer
for the private operator who functions
under a contract or agreement with the
state is yes. The second question is
whether thos~ who caused the deprivation were state actors. There the courts
have listed different factors which have
been used as indicators of state action in
the past: the public function test, the
state compulsion test, the nexus test,
and in some cases, a joint action test.
The public function test provides
that if a private entity or person is
engaged in. the exercise of what are traditionally government functions, their
activities are subject to constitutional
limitations. The state cannot free itself
from constitutional restraints in the
'Monell v. NYC Dep't. of Social Services, 436 U.S.
658 (1978).
20wen v. City

of Independence, 445 U.S.

(1980).
2 WINTER 1984

622

. . . the private entity, in
assuming the role of the state by
performing this public function, is
subject to the same limitations as
the state itself.
operation of its traditional government
functions by contracting or delegating
responsibility to a private entity. And,
the private entity, in assuming the role
of the state by performing this public
function, is subject to the same limitations as the state itself. In other words,
the function of operating prisons was
"exclusively left to the states in the
past" and a private prison operator is
considered to be engaging in state
action. Medina v. O'Neill, U.S.D.C., S.D.
Texas, Houston Division, C.A.
H-81-2928 (1984).
The state compulsion test can result
in state action justifying a claim under
§ 1983 where the state has a clear duty
to provide the services in question. Thus
in Lombard v. Shriver Center for Mental
Retardation, 556 F.Supp. 677 (D. Mass.
1980), the court found that the state
had an obligation to provide adequate
medical care for the mentally retarded
and that the private organization prOViding the service for the state was engaging in state action for the purposes of an
action under the Fourteenth Amendment.
In a case quite similar to the situation anticipated in a private prison, a
federal court found that a private secondary school for delinquent and emotionally disturbed boys was acting under
color of state law because there was "a
sufficiently close nexus between the
states sending the boys to school and

the conduct of the school authorities."
Milonas v. Williams, 691 F.2d 931 (10th
Cir. 1982). Boys were placed at the
school through the action of juvenile
courts or other state agencies; local
school districts placed boys there and
paid their tuition; and there was extensive state regulation over the educational
and treatment programs at the school.
The various state defendants entered
into consent decrees and the private
defendants were held liable under § 1983
for various constitutional violations
because they w.,ere engaged in state
action.
In some cases, courts have held private defendants liable as state actors
because they were joint participants
with state officials in using a state
statute that was procedurally defective
under the Fourteenth Amendment.
Lugar v. Edmondson Oil, supra at 2756.
Because prison operation and management have always been exclusive
functions of the state, and the process
which leads to imprisonment is the
exclusive domain of the state, it is not
difficult to fit the private prison operator into the part of state actor. It is
doubtful that a private operator could
benefit from immunities granted to the
government by state law. And, as a result
of being sued either directly or by the
insurance carrier for the private operator, there seems to be no basis for the
idea that a state or local government
will be able to avoid liability in civil suits
brought by prisoners if they join the privatization movement. •

Initial research for this article was
done by Maggie Wood Hassan, a law student intern.

The National Prison Project of the
American Civil Liberties Union Foundation
1346 Connecticut Avenue, N.W.
JAN ELVIN
Editor, NPP JOURNAL

Washington, D.C. 20036

(202) 331-0500

ALVIN J. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

EDWARD I. KOREN
MARY E. McCLYMONT

URVASHI VAID
CLAUDIA WRIGHT

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

DAN MANVILLE
Research Associate
LYNTHIA SIMONETIE

STAFF ATTORNEYS
ADJOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

The National Prison Project is a tax-exempt foundation-funded project of the ACLU Foundation which
seeks to strengthen and protect the rights of adult and juvenile offenders; to improve overall conditions in
correctional facilities by using existing administrative, legislative and judicial channels; and to develop alternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the stipulation that the National Prison Project
JOURNAL be credited with the reprint, and that a copy of the reprint be sent to the editor.
The JOURNAL is scheduled for publication quarterly by the National Prison Project. Materials and
suggestions are welcome. Deadline for next printing is January 31.
The National Prison Project JOURNAL is designed by James True.

Dramatic Change in Oklahoma
Juvenile Justice System
Edward I. Koren

With the May 3 I, 1984 signing of a
consent decree, Federal Judge Ralph J.
Thompson, of the Western District of
Oklahoma, put one of the final nails into
the coffin of the traditional, and
counterproductive, juvenile corrections
policies and practices in Oklahoma. During the seven year course of the Terry
D. v. Rader lawsuit which led to the settlement and consent decree, the Oklahoma juvenile system was brought into
line with nationally recognized standards
for the treatment of juveniles confined
to state facilities.
Prior to the filing of the case in
1978, Oklahoma had ignored the trends
that swept through juvenile corrections
and child care systems in the preceding
decade. While other states were emptying their training schools Oklahoma was
sending virtually its entire juvenile
offender population into institutions.
While most states were building smaller
institutions closer to the urban areas
their offender population came from,
Oklahoma continued to send its juvenile
population away to remote areas where
it was impossible to find qualified staff.
While other states were deinstitutionalizing their status offender and deprived
and neglected children populations, Oklahoma continued to place non-delinquents
in these facilities and even mix these kids
with others who had committed criminal
acts.
The Oklahoma child care system at
this late date was still characterized by
abuse and mistreatment beyond even the
prevailing norm. These abuses took
many forms, from beating, hog-tying (a
practice of tying feet and hands behind
the back and joining them with a chain),
solitaryconfine.t;nent and sexual misconduct, to the incarceration of abused and
neglected children, dangerous health and
safety conditions and the simple warehousing of youngsters without meeting
many of their most basic needs.
Some specifics are in order: Taft:
Bay Hall, on the North Campus of the
State Children's Home located in Taft,
Oklahoma, was a two-story dormitory
housing about 80 children. It had two
solitary confinement cells, one on each
floor. The downstairs cell was located
near the bathroom and reeked of feces
and urine. It had no bed, toilet or furnishings. Numerous windows were
broken, others were covered with plywood boards; broken and leaking plumb-

Photo by Dan O'Brien

ing fixtures were observed and the
stench of excrement and sweat pervaded the bUilding. In the junior boys'
dorm upstairs the solitary cell had a
heavy metal grating covering the windows. A 10-year old boy was confined
there at the time of one attorney's visit
for the "crime" of running away.

. . . much of the change is not
attributable directly to the terms
of the final 1984 settlement
decree itself but to changes that
were forced during the seven-year
litigation effort.
On the South Campus of the institution at Taft (a converted mental hospital) attorneys observed and talked to
children locked in solitary confinement
cells. These cells were also bare of furnishings, toilets and beds; children were
stripped to their underwear and given
blankets. One child was locked up there
for 13 days. In order to go to the bathroom, the children had to pound on
heavy metal doors to gain the attention
of the staff member on duty who did
not always respond.
Whitaker: Despite its characterization as an ••open campus", there was
very little difference between the operation of the facility at Whitaker and the
state training schools for delinquents.
Experts referred to Whitaker as "the
sickest institution of them all," primarily
because the population was made up
entirely of non-offenders.
Whitaker was extraordinarily
repressive. All children, regardless of

their individual treatment needs, were
forced to endure a behavior modification point system, where points were
given or taken away based on the performances of wqrk chores, behavior and
attitude. Restrictions (the childrens'
word for punishments) were freely given
by staff and resulted in loss of points and
other priVileges. As a result, few children were able to fully enjoy the privileges that state administrators claimed
existed, such as off-campus passes.
When too many restrictions were
accumulated, children were sent to the
segregated unit known as the "limited
privilege cottage", where they might
stay indefinitely. The level of restriction
in the unit was even greater than in the
general population.
"General population" children had
to have a specific number of points just
to go out and sit on the dorm porch.
Children who, in frustration, left their
dorms and ran around the campus just
to get outside, were chased down in
vans and placed in segregated confinement. The chasing of AWOL's from the
institution was described by state departmental evaluators as a para-military
operation, one wnich the staff seemed
to relish greatly. While there was no
barbed wire fence around Whitaker, the
facility was secure in every other sense
of the word.
Helena: At this facility, which
housed about 160 boys, the secure
detention unit was known as Dodge
House. This unit consisted of barren,
oppressive isolation cells in which
children were known to have been held
for more than 100 days. Hog-tying was
part of the daily routine at Dodge
House. As at Whitaker, boys who managed to escape were run down in vans,
and were often stripped and beaten
when apprehended.
As a direct result of the Terry D. litigation, Oklahoma undertook fundamental and sweeping changes in the structure
and direction of its entire child care system. Four major juvenile institutions
were closed, including Taft-South Campus, Helena, Boley and Whitaker; the
institutionalized population has decreased
drastically. Abused and neglected youngsters may no longer be confined in state
institutions. Community-based programs
have multiplied seven-fold, and comprehensive national child care standards have
-continued on next page.
WINTER 1984 3

-continued from previous page.
been adopted. Abusive child care practices have been prohibited while institutional programs and conditions have
improved somewhat from a few short
years ago.
All of this would not have occurred
without the litigation effort made by a
group of lawyers from several organizations, including the National Prison Project, Legal Aid of Western Oklahoma,
and the National Center for Youth Law.
It is interesting that much of the change
is not attributable directly to the terms
of the final 1984 settlement decree
itself but to changes that were forced
during the seven-year litigation effort.
For example, in their initial 1978 complaint, the plaintiffs urged the elimination
of unconstitutional conditions of confinement in the system's solitary confinement units. During the prosecution of
the lawsuits the state authorities bulldozed the detention cells at the COJTC
and Helena facilities. The detention cells
at Taft-South and Whitaker were
closed; the notorious Bay Hall was also
demolished.
But for this lawsuit, comprehensive
state legislation would never have seen
the light of day. The Oklahoma
legislature passed legislation with
significant reform provisions only
because of its fear of the federal court
intervention and supervision which
loomed on the horizon, as well as
intense adverse local and national
attention given to the conditions in the

Children who, in frustration, left
their dorms and ran around the
campus just to get outside, were
chased down in vans and placed
in segregated confinement.
state's institutions. The legislation
includes provisions prohibiting corporal
punishment in institutional schools, the .
creation of an Advocate Defender grievance program and a comprehensive legal
assistance program for indigent children.
Most importantly, the statute establishes
a legislative preference for home placement, a prohibition on the placement of
non-offenders in state facilities and a requirement for their removal from those
institutions. Moreover, under the terms
of this enactment juveniles were
ordered removed from confinement in
the state's local jails by July I, 1985-a
progressive step which the litigation did
not expressly request.
The complex, protracted and sometimes bitter litigation that brought all
this about has seen, among other things,
two motions for summary judgment,
various motions for preliminary relief,
extensive discovery by both sides, numerous expert tours, three trips to the
4 WINTER 1984

United States Court of Appeals, significant changes in the state's policies, practices, and facilities, new juvenile justice
legislation and two negotiated settlements. (The federal judge refused to
sign a similar 1982 agreement between
the parties without legislative approval,
which was finally obtained).

Many of the dramatic changes
brought on by Terry D. are in place;
others depend on future action by the
authorities. The next step, therefore,
requires assurance that the changes
already made are permanent and that
promises made in good faith to the children of Oklahoma are kept._

PART II

Prison Litigation: Making
Reform a Reality
,
Mary E. McClymont
In the last issue of the JOURNAL
(Fall 1984), we discussed the power of a
federal district court to fashion an effective remedy once a constitutional violation had been established. That discussion centered on those remedial devices
that were least intrusive and which relied
heavily on good faith compliance efforts
on the part of defendants. However,
the history of the last fifteen years indicates that jail and prison reform is politically unpopular and is not high on the
agenda of the responsible local ahd state
authorities. The court may then resort
to more intrusive enforcement options
to make constitutionally required reform
a reality.

I. Contempt
Rule 70 of the Federal Rules of Civil
Procedure and 18 U.S.c. §40 I (3) expressly authorize a federal court "to
punish by fine or imprisonment, at its
discretion ... " contempt of its authority including disobedience of an order or
decree. Failure to comply with an injunctive order issued by a court of competent jurisdiction is actionable as contempt of court. I Howat v. Kansas, 258
U.S. 181 (1921).
In Mobile County jail Inmates v.
Purvis, 551 F.Supp. 92, 96-97 (S.D.Ala.
1982), affd 703 F.2d 980 (11th Cir.
1983), the court held county officials in
contempt for failure to comply with
court orders related to unconstitutional
jail overcrowding. The court summarized
its civil contempt power.
'A contempt order may be of three types: coercive, criminal, or compensatory. Coercive contempt is prospective; it seeks to effect future
obedience. In contrast, criminal and compensatory contempt are retrospective-they 'respond
to past violations. If a defendant willfully disobeys an injunction, a judge may impose criminal
contempt in the form of a fine or imprisonment. The real distinction between civil and
criminal contempt is the nature of the relief
asked and the purpose of that relief.

Broadly speaking, a civil contempt is a
failure of a litigant to do something
ordered to be done by a court in a civil
action ... Walling v. Crane, 158 F.2d
80,83 (5th Cir. 1946). Civil contempt,
where appropriate, serves "to preserve
and enforce the rights of private parties
to suits, and compel obedience to
orders and decrees made to enforce the
rights and administer the remedies to
which the Court has found them to be
entitled ...." (citations omitted).
The plaintiffs must prove the con- .
tempt by "clear and convincing" evidence. U.S. v. Rizzo, 539 F.2d 458, 465
(5th Cir. 1976); Shakman v. Democratic
Organization of Cook County, 533 F.2d
344, 351 (7th Cir. 1976). As the court
stated in Mobile County jail Inmates,
supra, 551 F.Supp. at 97, "[w]hile the
defendants ... are not held to 'absolute
compliance' with the court's order ...
the court looks to see whether the
defendants took 'all the reasonable steps
within their power to insure compliance
with the orders' . . ." "Wilfulness" is
not an element of civil contempt so the
defendants' intent is not at issue.

McComb v. jacksonville Paper Co., 336
U.S. 187, 191 (1949). Of course, there
must be a specific order against which
officials may be found in contempt, e.g.,
a remedial court order, a consent
decree, a court-ordered plan.
Upon a finding of contempt, the
officials may be incarcerated or fined.
Newman v. Alabama, 683 F.2d 1312,
1318 (II th Cir. 1982), cert. denied, 103
S.Ct. 1773 (1983) (imprisonment or
fine); Miller v. Carson, 550 F.Supp. 543
(M.D.Fla. 1982) (fine). In Palmigiano v.
Garrahy, supra, 448 F.Supp. at 672, and

Mobile County jail Inmates, supra, 551
F.Supp. at 97, the court imposed daily
fines for each day the defendants were
out of compliance. They were able to
purge themselves of contempt with
resulting revocation of the fines if they
achieved compliance by a certain date.
The sanction was coercive in nature.

,

NPP photo-Fountain Correction Center. Atmore. Alabama

2. Order for Population
Caps/Reduction
.This remedy is obviously used primanly for overcrowding violations. A
large number of courts in jail and prison
cases have ordered population caps or
reductions after a hearing. See, e.g.,
Wellman v. Faulkner, 715 F~2d 269 (7th
Cir. 1983) (where the court affirmed
the district court in ordering a twostage reduction in population at the
prison); Leeds v. Watson, 630 F.2d 674
(9th Cir. 1980) (where the court
affirmed a jail population cap in light of
overcrowding); Ruiz v. Estelle, 650 F.2d
555, 570 (5th Cir. 1981), cert. denied,
.103 S.Ct. 1438 (1983) (the court noting
Its acceptance of the principle that
". . . a district court in exercising its
remedial powers may order a prison's
population reduced in order to alleviate
unconstitutional conditions"); Campbell
v. Cauthron, 623 F.2d 503 (8th Cir.
~ 9~0). (reversing trial.court and ordering
limitations on population per cell in
Arkansas jail); Battle v. Anderson, 564
F..2d 389 (10th Cir. 1977) (affirming
tn~1 court order to reduce inmate population at two state penal facilities); Martinez Rodriguez v. jimenez, 537 F.2d I
(1st Cir. 1976) (denying stay of trial
court order capping facilities'
population); Campbell v. McGruder, 580
F.~d 521 (D.C.pr. 1978) (remanding to
tnal court to see if overcrowding in fact
~ccurred with instructions that population cap could be reinstituted and suggesting that evidence in record was sufficient to sustain population cap); Inmates
of Allegheny County jail v. Wecht, 565
F.Supp. 1278 (W.D.Pa. 1983); French v.
Owens, 538 F.Supp. 910 (S.D.lnd.
1982); Gross v. Tazewell Co. jail, 533
F.Supp. 413, 416 (W.D.Va. 1982);
McMurry v. Phelps, 533 F.Supp. 742
(W.D.La. 1982); and jones v. Wittenburg, 509 F.Supp. 653 (N.D.Ohio
1980).
Recently, the Court of Appeals for
the Second Circuit in Badgley v. Vare/as,
729 F.2d 894 (2nd Cir. 1984), imposed

a ban on intake of pre-trial detainees in
order to ensure compliance with the
population limit which had been imposed
by the district court in an order three
years earlier. The court believed this to
be an appropriate enforcement measure,
short of releasing prisoners.

ance with the court's first orders. The
court discussed the "extraordinary circumstances" which made necessary the
only alternative to the court: receivership. The court found receivership "the
more reasonable and the more promising approach" as opposed to closing the
several prison facilities. Id. at 635. It
found that appointment of a monitor
offered little hope of swift compliance in
light of all thecircumstances. 2
It should be noted, however, that
the court appointed the Governor of
Alabama as receiver, on his own petition, in response,to the plaintiffs' application. The Governor's petition was
supported by the leaders of the Alabama
Legislature. It would appear that the federal court chose a seemingly harsh sanction and at the same time one that was
politically less intrusive into state affairs.
Finally, in an unreported decision in
Wyatt v. Ireland, (M.D.Ala. Oct. 25,
1979), judge johnson also appointed the
Governor of Alabama as receiver of the
mental health system, again on his own
petition. That case also involved a protracted history of non-compliance by
state officials.

3. Appointment of Receiver
"[W]hen more common equitable
remedies prove to be inadequate, a
court in equity may impose less common
4. Closing of Institutions
ones such as receiverships to take over
As a last resort, courts have also
temporarily the essential functions of
ordered
the closing of institutions in
the institutional decision makers to
light of unconstitutional conditions.
ensure that the remedy is successfully
These cases include the following: Gates
implemented." Reed v. Rhodes, supra,
v. Collier, 548 F.2d 1241 at 1243 (5th
500 F.Supp. at 397 (and citations thereCir.
1977) (noting with approval the disin). The court ordered a receiver in this
trict court's action during pendency of
school desegregation case noting that
appeal of closing prison camps unfit for
:'[t]h~ ~undamental test governing the
Imposition of a temporary receivership is human habitation and remanding the case
one of reasonableness under the circum- to the district court " ... to continue
.the implementation of conversion to a
stances," [citing Morgan v. McDonough,
540 F.2d 527, 533 (1st Cir. 1976), cert. constitutionally permissible penal system"); Dimarzo v. Cahill, 575 F.2d. 15
denied, 429 U.S. 1042 (1977)].
(I st Cir. 1978), cert. denied, 439 U.S.
Where the "more usual remedies927 (1978) (affirming trial court that
contempt proceedings and further inMassachusetts county jail and house of
junctions-were plainly not very promiscorrections
would be ordered closed if
ing [and] ... inadequate," the courts
certain
mandated
changes were not
have been forced to resort to receivermade);
Rhem
v.
Malcolm,
507 F.2d 333
ships. Morgan, supra, at 533. The Reed
(2nd
Cir.
1974)
(remanding
to trial
court elaborated on the circumstances
court to enter order to close Manhattan
which make compliance unlikely and may
House of Detention unless specified
justify receivership:
standards
are met); Palmigiano v. Gar[r]epeated or continuous failure of the
rahy,
443 F.Supp. 956 (D.R.1. 1977)
officials to comply with a previously
(order that population in Rhode Island
issued decree; a reasonable forecast that Adult Correctional Institution be
the mere continued insistence by the
reduced and that maximum security
court that these officials perform the
facility be closed by a certain date);
decree would lead only to "confrontaHamilton v. Landrieu, 351 F.Supp. 549
tion and delay"; and a lack of any lead(E.D.La. 1972) (order for closing of
ership that could be expected to turn
Orleans Parish Prison by certain date).
the situation around in a reasonable
time. Reed at 397.
5. Release of Prisoners
In Newman v. Alabama, 466 F.Supp.
·In Duran v. Elrod, 713 F.2d 292,
628 (M.D.Ala. 1979), where the Ala297-98 (7th Cir. 1983), cert. denied,
bama prison system was put into receiv-continued on next page.
ership, judge Frank johnson noted that
------2See also Chayes. The Role of the Judge in Public Law
after 6 years the Board of Corrections
Utigation, 89 Harv.L.Rev. 1281, 1303 n.92 (1976).
had still not achieved substantial compliWINTER 1984 5

-continued from previous page.
-continued from page /2.
104 S.Ct. 1615 (1984), the appellate
court upheld the lower court's order to
release pre-trial detainees in order to
through the demand for sentencing
meet an earlier imposed population cap.
gUidelines, and by requesting habeas
The appellate court reasoned that there
corpus relief in a challenge to the constiwas substantial non-compliance with the
year-old consent decree limiting the pop- tutionality of the sentence imposed. A
number of states have developed senulation. Although county officials had
tencing guidelines. The information
been given the opportunity to develop a
received to date concerning these guideworkable remedy, they had failed and
lines, however, indicates that rather than
instead had sought to modify the conresolving the problem, the sentences for
sent decree. Moreover, the lower court
blacks have become even harsher than
had ordered the releases on a condithe sentences for whites accused of a
tional basis, giving the Illinois state
similar crime. This is the reported expecourts an opportunity to first specify a
rience of Maryland (especially in Baltidifferent method.
more) and Minnesota. 10
In Benjamin v. Malcolm, 75 Civ.
Similarly, habeas corpus litigation, to
3073 (S.D.N.Y. Nov. 4, 1983), the trial
cour-t finally ordered jail inmates released date, has failed to provide a meaningful
remedy for this discrimination. The
after an extensive effort to enforce
defendants who raised this issue in their
compliance through means of a less
petitions for writ of habeas corpus preintrusive nature. The court had earlier
suggested a variety of ways to end over- sented studies done in the state or
region where they were sentenced
crowding, short of court-ordered
which found that people of color
release. Benjamin v. Malcolm, 564
received harsher sentences than similarly
F.Supp. 668, 670-71 (S.D.N.Y. 1983),
situated white defendants. The courts'
However, the Eleventh Circuit
routine denial of this claim is based on
Court of Appeals, in Newman v. Alathe legal argument that in each individual
bama, 683 F.2d 1312 (11th Cir. 1982),
case there was no shOWing that this parvacated a district court order releasing
ticular defendant received a harsher senprisoners, ruling that the court order
tence than a similarly situated white
was. to be enforced first through the
defendant.
contempt power of the court rather
Appellate court judges are reluctant
than a release order. The court found
to grant habeas corpus relief on the
that plaintiffs did not show the inadebasis of discrimination because such a
quacy of their available legal remedy but
finding would affect not only the particinstead "sought new and extraordinary
ular case before the court, but every
injunctive relief that was beyond the
similar case in the state. II
scope of the consent decree" (which
Judges may also be hesitant to find
had set a population limit on state pris• racial discrimination for fear of tarnishing
oners in the county jails). Id. at 1319.
the "sanctity of the judicial process."
The court found that the release order
Many people believe that judges and
was greater than necessary to remedy
jurors are "supposed to," and thus do,
the constitutional violation.
set aside any racial prejudices in order to
[A] district court in exercising its remedial powers may order a prison's popula- decide the matter before them. If this
were really the case, we would not see
tion reduced in order to alleviate
the pattern of racial discrimination in the
unconstitutional conditions, but the
criminal justice system generally, and the
details of inmate population reduction
sentencing process in particular. Conshould largely be left to prison administration. This is consistent with the policy scious and unconscious opinions that
people of color are not only inferior,
of minimum intrusion into the affairs of
but are less than human,12 influence
state prison administration that the
Supreme Court has articulated for the
IOWashington Post, "Prosecutor Hits Sentencing
federal courts. See Williams v. Edwards,
Rules", June 18, 1984; Testimony of Leslie
S47 F.2d 1206, 1212 (Sth Cir. 1977).
Green, Minnesota Department of Correction,
/d. at 1320-21 [(quoting Ruiz v. Estelle,
before the Subcommittee on Criminal Justice,
6S0 F.2d SSS, S70-71 (Sth Cir. 1981)].
Judiciary Committee, House of Representatives,
As the Newman case highlights, the
April 4, 1984.
level of intrusiveness upon the state's
"Maxwell v. Bishop, 398 F.2d 147.
I2This attitude is very much a part of our not so
administration is a paramount concern in
bright history:
selecting the remedy most suitable at
"Good gracious. Anybody hurt?"
any particular stage in achieving compli"No'm. Killed a nigger."
ance with federal court orders in prison
"Well, it's lucky because sometimes people
and jail litigation. Moreover, the optional
do get hurt." ...
remedies briefly discussed above must be
Mark Twain, The Adventures of Huckleberry Finn,
tailored closely to the particular consti306-7 (New York: Harper and Row Brothers
tutional violation.•
Publishers, 1884).

Racial Disparity

6 WINTER 1984

those who must decide not only
whether someone committed a crime,
but what punishment must be given.
Those of us concerned with the
eradication of vestiges of slavery, (the
social, political, and emotional encumbrances which are a result of conscious,
intentional acts of racial injustice) must
find a way to prove that sentencing
practices are .discriminatory. This is
especially important given the negative
impact imprisonment has on the black
family, further undermining its ability to
thrive. After the Supreme Court decision in Pulliam'" Allen,13 a civil action
brought against judges for prospective
relief appears to be a viable approach.
Pulliam confirms that state judges
violating federal constitutional rights may
be enjoined by a court.
A statistical study demonstrating
racially discriminatory sentencing practices in one particular state would be
valuable. The introduction of evidence
that people of color receive harsher sentences than their white counterparts can
shift the burden to the defendants to
show that the differences in sentences
were based on considerations other than
race. Problems of proof must be
thoroughly analyzed, but these problems
should not prevent us from proceeding
to develop such a suit.
Racial discrimination in both judge
and jury sentencing practices suggests
that a civil action would be more effective in redressing this systemic racism
than a petition for a writ of habeas
corpus. An individual habeas corpus victory would set a useful precedent. However, a finding of statewide sentencing
discrimination wolild have even greater
impact. Such a victory would force
changes in the sentencing practices of
judges throughout the state. By its very
nature, a holding like this makes ridiculous the notion that only in this particular case did this judge give a harsher sentence to a black defendant than to a
white defendant.
Development of a litigation strategy
which will address individious discrimination in sentencing practices is necessary
if we are to end "the insidious destruction of the human spirit [which] is the
essence of both slavery and the worst
aspects of contemporary ... racism." 14
We must demand that racially unjust
sentencing be enjoined; sentencing practices must be studied and racially neutral
mechanisms developed to guide judges
and jurors in the determination of a sentence. Monitoring systems must also be
developed to assure that the victory,
when achieved, is a lasting one. •
13 104 S.Ct. 1970 (1984).
14D. Bell, Racism in American Courts, p. 165, see
note 4.

-continued from page I.

Litigation Strategies
With the increasing recognition of
the importance of including enforcement
mechanisms in the original order itself,
one should also utilize the various
articles by Vincent Nathan and others
on what methods work-and why-as
checklists for enforcement provisions. 2
Having consulted and utilized the
checklists, however, it is important to
remember that in any prison some items
are more important and more difficult
to achieve under the current state of
the law and the facts than others. Lawyers should not be satisfied merely to
get some "form language" relief in
those areas. Rather, the more difficult
the area, the more specific and extensive the relief and the enforcement
mechanisms should be. Consultation with
the plaintiffs is important throughout the
litigation process; it is even more important here. After all, the plaintiffs are the
ones who not only know what is most
egregiously wrong but how the defendants are likely to subver~-intentionally
or not-any form language in an order.
As to the question, "What are the
judges looking for at this stage of a
case?", I suspect the answer is extremely dependent on the judicial philosophy
and eccentricities of the judge. These
must be taken into account-along with
the views of the Court of Appealsthroughout the process.
A settlement between the parties is
the ultimate goal. Most judges will do
almost anything to accomplish this end.
Many may not have realized that the initial order is only the start of the process, but so be it. The plaintiffs should
certainly take into account this propensity of most judges in trying to get the
court to push the defendants toward
settlement when matters get difficult.
Moreover, a settlement is so desirable
to most judges that they are usually
anxious to approve almost any settlement presented.
I regret to <$ay that if a settlement
cannot be reached, most judges will look
toward the most limited relief that can
be entered against the defendants under
the facts presented. In spite of evidence
of long-standing constitutional violations,
judges tend to accept distorted and inappropriate "deference, comity, federalism, non-intrusive" notions when entering orders. They Gften ignore the hard
realities of what it will take to get a
state or locality to follow the law and
instead operate on the hope and prayer
that a general order without strong enforcement mechanisms will be followed.
2E.g., Nathan, "The Use of Masters in Institutional
Reform Litigation," 10 Toledo L.Rev. 419 (1979).

After finding massive
constitutional violations, Uudge
Kane] rejected well-briefed,
specific, comprehensive remedial
proposals of the plaintiffs and,
instead, chose the "assume good
faith, non-intrusive" approach
usually advocated by defendants.
These tendencies make it imperative
to educate your court on the history of
orders in cases such as these and the
necessity to deal forthrightly and forcefully with the problems in the initial
order so that the order not only fully
addresses the violations to be remedied
but is also clear to all involved and can
be enforced without interminable future
post-judgement litigation.
II. SPECIFICITY OF ORDER
SOUGHT
I am radical on this issue. My experience teaches me that Iitigators for the
plaintiffs must fight every minute for
extreme specificity although I also
believe specificity is normally desirable
from the standpoints of all the players:
prisoners, administrators, monitors/masters, and the court. Why do I believe
that?
First, lawyers for prisoners should
never forget for a minute that with rare
exceptions you must operate with one
truth:
THE LEAST YOU GET FOR YOUR
CLIENT ON ANY ISSUE IN THE
ORIGINAL ORDER IS THE MOST
YOU WILL EVER GET.

From the entry of the first order
on, you will be fighting an ongoing and
wearing battle with defendants to
ignore, subvert, appeal, and modify, or
declare "substantial" compliance with its
terms. I fear that most judges are so
happy to see any compliance with any of
the terms of an order after years of
non-compliance with the Constitution
that they almost always fall into the
"look how far the state has come" or
"look how much money the state has
spent" syndromes. It's as if orders in
prison cases involving constitutional
rights are not to be taken as seriously as
commercial cases.
Second, I think it is important that
all parties-and legislators and other public officials for that matter-understand
clearly from the beginning what is to be
reqUired of them. This prevents frustration on the part of prisoners and staff.
Neither side may like what it got, but at
least they know what it is. The state
and its managers can enter into meaningful planning and budgeting without trying

to guess what is going to be required
after the next compliance hearing.
Third, you have an order that can
be monitored and can be enforced without continual arguments and litigation
over the threshold question of what is
required by the order.
On the other hand, there are, of
course, arguments for having broad principles established by the order which
contain flexibility in application to particular situations within the prison or the
different prisons affected by the order.
The first such cOfltention is usually based
upon a feeling that all situations are not
. best improved by rigid formulae laid out
by the courts and the parties. Moreover, the parties and the court cannot
foresee all the problems at the time of
the order. The establishment of one
method of dealing with one problem
may adversely affect the ability of the
managers to satisfactorily deal with
another. Finally, it is said that the defendants who are going to be running the
institutions in the long run should be
reqUired and allowed to wrestle with
how to solve problems and come up
with their own methods. Through that
process, it is said, the managers will have
an investment and pride in what they
have done and will be enthusiastic about
carrying it out-or at least will not be
so hostile toward making needed
changes.
No one can really argue with these
justifications for non-specificity in orders
in the abstract-assuming competent
governors, legislators, prison administrators, and guards who are acting in good
faith and have the financial and other
wherewithal to devise and carry out
their own plans to solve the problems. I
have yet to see such a situation in the
real world.
Among the prison cases I have been
involved in are Ramos v. Lamm 3 (the
Colorado prison case) and Duran v.
Anaya" (the New Mexico prison case).
Ramos was tried for six weeks after a
settlement reached between the plaintiffs and the executive branch of the
State of Colorado was rejected by the
legislature. Duran was settled. Judge John
Kane of Colorado is one of the most
. sensitive and creative judges in the country. After finding massive constitutional
violations, he rejected well-briefed,
specific, comprehensive remedial proposals of the plaintiffs and, instead,
chose the •'assume good faith, nonintrusive" approach usually advocated by
defendants. He ordered that five simple
principles be met, to-wit: safety, health
care, productive activity, motility, and
-continued on next page.

--------

'Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).
<Duran v. Anaya, c.A. No. 77-721 JB (Consent
Decree Entered July 14, 1980.)

WINTER 1984 7

-continued from previous page.
coherence. He then ordered the defendants to come up with plans to meet
these principles.
In Duran, on the other hand, after
seemingly endless negotiating sessions
with prisoners and corrections officials
at the table with their lawyers, a consent order was entered which was 145
pages long and which at the time was
clearly the most specific order that had
been entered in such a case.
In Ramos, there was immediate litigation over what the order really meant
and what would have to be done to
meet the terms of the order. That litigation is continuing at this time. Even with
the specifics of the Duran order, there is
still litigation underway asking for modifications-and squabbling over what the
order really requires.
Nonetheless, the difference is that
in Duran it is the defendants who are
fighting for modifications, whereas in
Ramos the plaintiffs have had to fight to
establish the principles to begin with. For
my money, I still say specifics are the
clear choice. If corrections officials and
the state are acting in good faith, counsel for the plaintiffs can always review
plans that justify modifications and/or
give innovative approaches to the problems not contemplated and additional
consent orders can be entered to conform to the methods developed by the
state.
III. MONITORING AND
ENFORCEMENT OF THE
ORDER
If the last decade of prison and jail
litigation has taught us anything, it is that
a substantial effort must be made to get
automatic monitoring and enforcement
devices into the original order. Otherwise, the almost inevitable sequence of
events is that a period of time will go by
during which the lawyers for the plaintiffs attend to other business only to
find out that the order is not being carried out. That means massive "rediscovery and retrial" of all the issues all over
again. Indeed,"'the compliance "trials"
are usually more complex than the original trial. My current view is that there
should be the following in all prison or
jail orders:
A. The establishment of an independent master/monitor operation paid for
with a continuing fund of state money.
The operation must be adequately
staffed and operated in a manner similar
to the ones which have made Vincent
Nathan the premier master in the prison
world. Orders which only require the
state to submit reports on compliance
are almost universally a failure and only
waste time of state officials who produce reports that are almost always
8 WINTER 1984

If the average defendant in a civil
money trial showed the lack of
adherence to court orders that
state officials do in prison cases,
judges would put them in jail.
inaccurate and inadequate. This then
causes the court not only to rule on the
state of compliance but also to challenge
the credibility of state officials-not a
healthy situation. Moreover, the experiences I have had with "monitoring"
operations short of the Nathan models
have been frustrating, inefficient, and
have not ultimately shortened the litigation or speeded compliance.
B. It is also important that the
state and corrections officials have
reporting responsibilities within the
context of the master/monitor operation. This is mainly so that corrections officials and the state will have to
deal with the terms of the order themselves and will thus be better able to
plan and organize to come into
compliance.
C. Finally, sanctions for non-compliance should be built into the order itself.
I'm not sure what sanctions work best
in the interest of society, but at the
least, I think there should be automatic
fines imposed for continued non-compliance, with the money to be utilized for
the prisoners' benefit beyond what
would be prOVided for them in a constitutional system. In fact, the money
should probably go directly to prisoners
so as to invoke the ire and get the
attention of the taxpayers and corrections officials. My experience is that the
courts give such deference to corrections officials in these cases that the officials honestly do not believe they
actually have to comply with the
orders-certainly not in a timely fashion.
Contempt should be built into the timetable. If the average defendant in a civil
money trial showed the lack of adherence to court orders that state officials
do in prison cases, judges would put
them in jail. I also firmly believe, and
have seen in Alabama, that the serious
threat of automatic releases of prisoners
or money to be paid to convicted
prisoners makes people sit up and take
notice and causes them to become more
serious about complying with orders.

After all, the plaintiffs are the
ones who not only know what is
most egregiously wrong but how
the defendants are likely to
subvert-intentionally or not-any
form language in an order.

IV. INVOLVEMENT OF THE
COURT AND STATE
OFFICIALS
The desirable and the possible seem
to be very different under normal circumstances. Any substantial prison
remedial order is going to require
serious action from state officials outside the corrections system. My view is
that it would be desirable for the governor, legislative leadership, or other
relevant high officials to be involved in
the settlement discussions as soon as
these discussions are reasonably close to
completion, so' the officials cannot say
later that they were blind-sided and use
that rationale to resist moving to compliance with the orders.
However, my experience is that
governors and legislators normally don't
want the political baggage of haVing
approved, by implication or otherwise,
any settlement or order that gives substantial benefits-much less attorneys'
fees-to prisoners or their lawyers.
Some have told me that they would help
get money and legislation to help with
compliance but did not want to be saddled with prior participation in the discussions leading to an order.
Further, in settlement negotiations,
one has to look at the scenario that is
going to play out. If involvement of leg:
islators or other state officials is going
to mean, as a practical matter, that no
settlement can be reached, it may be far
better to reach the settlement with the
duly authorized corrections officials and
deal with the others after the order is
signed, sealed, and delivered.
V. CONCLUSION
The above strategy discussion
undoubtedly represents a cynical view of
judicial enforcement of court orders in
the prison domain. I do not intend for a
minute for anyone to be unappreciative
of the enormous improvements that
have been made in most of the prisons
of this country solely because of judicial
intervention. Nonetheless, as the
Supreme Court continues to send negative messages to trial judges, it is important to approach such litigation
realistically .•

Ralph Knowles, an experienced civil
rights litigator, is currently in private practice in Tuscaloosa, Alabama. He was previously the Associate Director of the National
Prison Project. This article is an adaptation
of his remarks to a conference of lawyers,
judges, academicians, and corrections
experts, presented in May, 1984.

Women in Jail:
Problems and Needs

-s

EARL Y half a million
women are locked
up in America's
crowded and deteriorating jails each
year. Although
many are charged
with non-violent
offenses and are

'ts-

not a danger to

I

~

f

the community,
o
they remain in jail,
~ often without adequate medical care,
without services or programs to prepare
them to re-enter life as productive citizens, and without hope.
The National Coalition for Jail
Reform, in its recently published brochure, Women in Jail: Special Problems,
Different Needs, calls upon community
groups, elected officials, criminal justice
personnel and the general public to
examine the problems of women in jail
and to seek solutions. Here are some of
the points made in the brochure:
FACTS ABOUT WOMEN IN JAIL
• 73 % of the women in jail are under
30;
• 58% lived on less than $3,000 a
year and 92% had less than a $10,000
yearly income;
• 66 % were unemployed before their
imprisonment;
• 47% have at least one child dependent upon them;
• 58 % have less than a 12th grade
education;
• 59% have not been found gUilty of
the crime with which they are charged,
but are in jail awaiting trial or
arraignment.
PROBLEMS FACED BY
WOMEN IN JAIL
Not only Clo women face the harsh
conditions of our overcrowded, understaffed, underfunded and antiquated jails,
they are confronted by many problems
specific to their gender:

Incarcerated nnothers
I. Many women in jail are mothers
with dependent children, often either
single parents or the sole support of
their household. Most jails, however,
either do not permit children to visit
their mothers in jail or severely restrict
those visits; in other jails contact visits,
where a mother can hold and play with
her child, are denied;
2. While the mother is separated
from her children, she is likely to lose

custody of them to the state;
3. Even if custody is retained, the
reunion of mother and child can be
difficult after the emotional and
economic strain of the jail experience.

Poverty
Many women commit crimes out of
financial desperation, and they cannot
afford to post bail.
Progranns
Women in jail are often housed
under tighter security and more restrictive conditions than are appropriate for
their offenses because of limited facilities
and resources available for women
prisoners.
I. Women generally have less
access than male inmates to recreation,
education, work release and vocational
education programs, when such programs even exist in the jail;
2. When there are occupational
training programs in the jail, women may
be limited to training in beauty care,
sewing, cooking and other traditionally
female, low-wage occupations instead of
the better paying jobs for which men
are trained;
3. Lack of past employment outside
the home often means lack of qualifications for a work release program;
4. Fewer community resources are
directed toward women leaving
.
jail-fewer halfway houses, employment
programs and other vital social services-than toward men.

Medical issues
I. Mood altering drugs are prescribed two to three times more often
for women in jail than for men;
2. Lack of gynecological care for
jailed women is not only dangerous, but
can be fatal. There is seldom special
health care for pregnant women, and
the use of contraceptive pills is often
interrupted because they are unavailable
in jail.
These problems do not need to
exist. First of all, there are alternatives
to the jailing of women. The Coalition,
consisting of 40 'national organizations
including the National Prison Project,
the National Sheriffs' Association, the
American Bar Association, the American
Public Health Association, and the
National Urban League, urges an
increased use of pretrial diversion and
release programs, sentencing alternatives
such as probation, restitution and community services, and sentencing reform,
particularly for victimless crimes and
other minor offenses most common to
women offenders.
Along with the use of alternatives
to jail, the needs of women in jail must
be met. The Coalition's brochure cites
several programs which have been successful in meeting those needs.
The Coalition urges community
members to talk to sheriffs, jail administrators, district attorneys, judges, and
social service agency directors to determine the scope of the problem of
women in jail in their communities and
to try to seek solutions.
The Coalition's brochure is available
by writing to the National Coalition for
Jail Reform, 1828 L St., N.W., Suite
1200, Washington, D.C. 20036.•

National Prison Project
Highlights
In this issue of the JOURNAL we
are beginning the practice of listing the
major developments in the Prison Project's litigation program since July I,
1984. Further details of any of the listed
cases may be obtained by writing the
Project.

Abbott v. Richardson - This is the
national class action which challenged the
Federal Bureau of Prisons' policies on
censorship of mail and literature. In September we received a disappointing decision rejecting most of our claims and we
have filed a notice of appeal.

Akers v. Landers - This case challenged the Virginia Department of Corrections' policy which automatically separates newborn babies from their
incarcerated mothers. We initially filed a
notice of appeal from an unfavorable ruling in the district court but have withdrawn it following the unfavorable
Supreme Court decision in Block v.
Rutherford (no contact visits for pretrial
detainees).
Bobby M. v. Grahann - This case challenges conditions and practices at three
-continued on next page.
WINTER 1984 9

-continued from previous page.

consent decree was signed in July
which settled. all the remaining
issues.

Florida juvenile training schools.
We have already obtained a series
of favorable orders and
agreements. During the summer,
200 children were released from
the Okeechobee school as a
result of a number of negotiation
sessions.

Garza v. Heckler - In August,
we filed a lawsuit challenging a
1983 amendment to the Social
Security Act which eliminated
convicted felons from old age
insurance coverage.

Brown v. Landon - We have
been preparing to file a contempt
Grubbs v. Bradley - A large
motion for the defendants' failure
step towards compliance with the
to comply with the consent
earlier d~ision in this Tennessee
d~cree in ~~is case, whic~ deals
\\l~ rl'\1:,c.c.c.\~ fYt<d ""
lie
~\I
I
AUI\II:,DUII
St.ate
Prison case was taken in July
CT
With conditions and practices at
1m ~', .... ,~'-Vloa'"
l1\1. n, I"\'""'\" lliil\... with the entry of an order produring the summer, after the court's
viding for detailed improvements in
the Virginia super-maximum security
facility. During the summer we began
December 1983 decision barring all
classification, security, management,
experiencing great difficulty and delays in triple-ceiling and limiting double-ceiling.
sanitation, food services and job
interviewing our clients and in SeptemThe parties reached agreement and we
programs. The defendants are required
submitted a proposed order to the
to create a minimum of 75 new inmate
ber we filed a preliminary injunction
motion. After an evidentiary hearing, we court for approval.
jobs a month; for any month in which
received an excellent opinion and order
they fall below that figure, they are
Duran v. Anaya - After an inmate
required to release a number of inmates
granting all the relief we requested on
the access to clients issue.
suicide, the court held the defendants in
equal to the difference between 75 and
contempt for violating the consent
the number of jobs.
Canterino v. Wilson - This case chaldecree.
lenged the totality of conditions at the
Mohler v. P.G. County, Anderson
Flittie v. Solem - We received a favv. P.G. County, Gray/Barger v.
Kentucky Correctional Institution for
P.G. County - The series of damages
orable decision in April 1984 in the
Women. After several earlier favorable
South Dakota State Penitentiary case,
cases filed in 1983 which concerned brudecisions in August, the court ruled that
since defendants had not yet come up
tal assaults and rapes at a Maryland jail
which required the defendants to submit
with an acceptable plan, the court would a plan. The defendants' appeal of that
was settled for $200,000 early this summer. We will receive our costs and a
order specific relief (e.g., defendants
order was dismissed by the Court of
must provide additional vocational educa- Appeals on July 26.
small share of the fees shortly from the
tion and prison industries programs by
private lawyers who we encouraged to
January I, 1985).
Freeman v. Georgia D.O.R. - This
be primarily responsible for the cases.
case challenged the involuntary drugging
Delgado v. Cady - Certain overcrowd- and transfer to mental hospitals without
Nelson v. Leeke - In the statewide
due process of women at the Georgia
conditions case in South Carolina, a seting issues at the Waupun Correctional
Institution in Wisconsin were settled
Women's Correctional Institution. A
-continued on next page.

G
0"'''''''

HEN we saw the
cartoon shown above,
we thought, "Oh
wow. Free advertising!" But what a minimalist approach it took
to the wonders NPP
... performs!
So we thQ.,ught, why not use it as installment # I in our very first ad campaign? We could expand on the issue of
cold coffee and call it •'the Java Campaign", very Madison-Avenue, you
know. Hard-nosed; corporate. Dispel
those myths that good liberals can't be
good businesspersons. And what a perfect opportunity to experiment with
wordplay, Le., "Coffee grounds for filing suit?"
Here's how the plan looks so far.

Bringing In Expert Witnesses.
We would no more fail to mention our
experts in an ad than Diet Pepsi would
forget to mention Nutra-Sweet. So for
installment #2, we thought we'd show
Alvin Bronstein sitting at a table with
10 WINTER 1984

I\,.IW

two women, each wearing a sign saying,
"Expert."
Expert my eye, you think, They
look more like a couple of grandmothers. I knew those sky-high expert
fees would bring prison litigation to this
sad state of affairs. But look again: the
experts are none other than those
famous coffee-mongers Cora and Mrs.

Chock Full of Nuts
Betsy Bernat
Olson, and AI is asking them, "But what
about that mountain grown taste? What
about decaf?"
The Class Action Issue. People
haJ(e the strangest notions about our
work. "Oh, you're those people who
support luxury hotel accommodations
for ax-murderers," they say. Yes, we
reply, and don't forget steak on days

beginning with a "T", and a VCR in
every cell!
Well, let's set at least one thing
straight: we wouldn't file a lawsuit
because one inmate had been served
cold coffee. So installment #3 will show
not one, but hundreds of inmates banging their mugs on the table, and they'll
be yelling, "We all have cold coffee!
We all demand an ACLU lawyer!"

The U in ACLU is Really for
Understanding. If misery loves company, then the ACLU-NPP is all for
keeping company with its clients. Why,
when we gripe about the office cockroaches, AI merely waves us aside. "I
put those roaches there," he claims. "A
measure of sympathy for our clients."
Heaven knows the same thing goes
for coffee. Installment #4 has Alvin
Bronstein sitting at his desk. Surrounding
him is his staff: attorneys, secretaries,
the whole show. They are not happy
people. They are angry and they are
shouting. "Our coffee is cold!," they
exclaim. "Get us the A.G.'s office!" •

-continued from previous page.
tlement was reached on virtually all the
issues, and the settlement agreement
was approved by the state legislature.
Approval of funding to implement the
settlement is pending.

Palmigiano v. Garrahy - The Rhode
Island prison system continued to move
closer to full compliance with the
various court orders.

Pugh & James v. Britton - We
received a disappointing decision from

the Court of Appeals in the Alabama
prison case which reversed last year's
prisoner release orders and contempt
citations against the Attorney General
and Commissioner of Corrections.

Correctional Institution, a women's facility, on both Eighth Amendment and
equal protection grounds, and a final settlement agreement was filed with the
court on September 4.

Spear v. Ariyoshi - We filed a lawsuit

During this period the National Prison
Project received $203,694 in attorneys'
fees and costs, in the following cases:

in September challenging the totality of
conditions at the Hawaii Women's
Prison and the men's Oahu Community
Correctional Center in Honolulu.

Witke v. Crowl - This case challenged
the conditions at the Northern Idaho

QTY. COST

presently under court order, or
dealing with pending litigation in
the entire state prison system
or major institutions in the state
which deal with overcrowding
and/or the total conditions of
confinement. (No jails except
District of Columbia). Periodically updated. $3 prepaid from
NPP.

Back issues, $1 ea.

Bibliography of Women in
Prison Issues. A bibliography

The Prisoners' Assistance
Directory, the result of a na-

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.

tional survey, identifies and
describes various organizations
and agencies that provide assistance to prisoners. Lists national, state, and local organ'izations and sources of assistance
including legal, library, medical,
educational, employment and
financial aid. 5th edition, published December 1982. Paperback, $15 prepaid from NPP.

Offender Rights Litigation:
Historical ancl Future Developments. 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.

make up part of the Prison Project budget
and enable us to .-::ontinue our work. l1li

QTY. COST

The National Prison Project
Status Report lists each state

The National Prison
Project JOURNAL,
$1 S/yr. $2/yr. to prisoners.

Duran v. Anaya, Freeman v. Georgia
D.O.R., Grubbs v. Bradley, and Lovell
v. Brennan. These fees and costs help

A Primer For Jail Litigators
is a detailed manual with practical suggestions for jail litigation.
It includes chapters on legal
analysis, the use of expert witnesses, class actions, attorneys'
fees, enforcement, discovery,
defenses' proof, remedies, and
many practical suggestions.
Relevant case citations and correctional standards. Ist edition,
February 1984. 180 pages,
paperback, $15 prepaid from
NPP.

Prisoners'

Rights

1979. ,/ 'oJ ' , / ' , /

Course handbooks prepared
for the Prisoners' Rights National Training Programs held
January-March 1979. Includes
articles, legal analyses, and litigation forms. Prepared by the "," ,'t""", J
staff of the National Prison
Project. Available in paperback. '/',/'","',/',/,
$35 per set, from the Practising
Law Institute, 810 Seventh I / ' J ' , V ' J
Ave., New York, N.Y. 10019.
2 Vols., 1163 pages. This set,
plus Representing Prisoners 1'0,'"',,,"
(below), can be purchased for 1'0/ , / , , /
$40.

Representing Prisoners. The
course handbook prepared for
the Prisoners' Rights National
Training Programs held in June
and July 1981. Includes articles,
legal analyses, and litigation
forms. Prepared by the staff of
the National Prison Project.
Available in paperback from the
Practising Law Institute, 810
Seventh Ave., New York, N.Y.
10019. I Vol., 980 pages. $35.
ACLU Handbook, The
Rights of Prisoners. A guide
to the legal rights of prisoners,
pre-trial detainees, in questionand-answer format with case
citations. Bantam Books, April
1983. Paperback, $3.95 from
ACLU, 132 West 43rd St.,
New York, N.Y. 10036. Free
to prisoners.

Fill out and send with check payable to

The National Prison Project

NAME

1346 Connecticut Ave. NW
Washington, D.C. 20036

ADDRESS
CITY, STATE, ZIP

_

WINTER 1984 II

..

Vestiges of Slavery:
Racism in Sentencing
Adjoa A. Aiyetoro
ACIAL INJUSTICE
in the state and
federal criminal
justice systems has
been enjoined by a
number of courts. I
To our knowledge. however. no court in the United
States has ever found racial discrimination in the imposition of a sentence.
although the prison populations are
disproportionately black. According to a
1982 report of the Bureau of justice
Statistics. 45% of those imprisoned in
the United States are black. Claims of
racial discrimil)ation in sentencing have
been raised in an attempt to obtain judicial relief from a sentence thought to be
unconstitutional. 2 The courts. although
unsympathetic to this claim. have
granted relief to some of these individuals based on other grounds, e.g.• a finding of arbitrariness in the imposition of
the sentence. 3
The failure to find racial discrimination in sentencing is alarming given the
disproportionate representation of
minorities in prisons. 4 Racial injustice has

been a dominant theme in the United
States since the arrival of the Mayflower. Racism has led the attacks upon
Native Americans. Chinese, Africans,
Hispanics and japanese; Mount Vernon
was built and maintained its grandeur on
the backs of African slaves. The use of
Africans as chattel slaves led to the only
civil war this government has known;
racism allowed the gains of that war,
documented by Reconstruction. to be all
but eradicated.
Olir history strongly suggests that
all major systems in the United States
are infused with the germ of racism. In
addition, the results of many studies
belie the notion that there is no racism
in the sentencing process. The studies
indicate that "racial disparity" (a more
palliative phrase then either "racism" or
"racial discrimination") is a national
phenomenon. A statistically significant
higher proportion of blacks throughout
the South are sentenced to death
although their crimes and criminal
histories are not markedly different
from whites. s Twenty-eight percent of
the convicted blacks in Virginia received

'See. e.g.• Whitus v. Georgia, 385 U.S. 545 (1983)
and Casteneda v. Pastida, 430 U.S. 482 (1977)
(jury panels); Washingtan v. Lee, 263 F.Supp. 327
(M.D. Ala. 1966). aff'd per curiam, 390 U.S. 333
(1968) (racial segregation in prison housing).
2See, e.g.• Maxwell v. Bishop, 398 F.2d 138 (8th
Cir. 1968); Britton v. Rogers, 631 F.2d 572 (8th
Cir. 1980); Johnson v. State of Alaska, 607 F. 2d
944 (Ala. 1980).
3See• e.g., Furman v. Georgia, 408 U.S. 328
(1972).
4See Footnote I above. See generally, Bell,

Racism in American Courts: Cause of Black Disruption and Despair, 61 Cal. Law Review 165
(1973); D.Bell, Race, Racism and American Law,

National Prison Project
American Civlt Liberties Union Foundation
1346 Connecticut Avenue, NW. Suite 402
Washington, DC 20036

Little, Brown and Co., 1972, 1975 Supp.;
National Minority Advisory Council on Criminal
Justice, The Inequality of Justice: A Report on Crime

and the Administration of Justice in the Minority
Community, Oanuary 1982). See also, A. Leon
Higgenbotham, Jr., In the Matter of Color, (1978)
for an excellent discussion of racism as the
founding block of the United States.
SWolfgang and Reidel, "Race, Judicial Discretion

sentences of three years or less (light).
while 42% of similarly situated whites
received such sentences. Conversely,
35% of blacks received heavy sentences
(nine years or more) while only 14% of
the whites received heavy sentences. Of
blacks in Virginia with felony records,
only I9 % received light sentences while
38% got heavy ones. Thirty-five percent
of the whites with felony records got
light sentences and only 22% got heavy
ones. 6
When controlled for other factors,
minorities recei~e sentences which are
from one to seven months longer than
those received by whites in California,
Michigan, and Texas.7 Likewise, sentences of blacks and native populations
in Alaska are from 2 to 8 months longer
than similarly situated whites for burglary, larceny. receiving, fraud. forgery
and embezzlement. Sentences for blacks
are approximately 42 months longer
than similarly situated whites for drug
offenses. 8 Finally. blacks incarcerated at
Walpole Prison in Massachusetts receive
a minimum sentence which is typically
one year longer than whites. 9
Those concerned about racial injustice in sentencing have attempted to
address the problem in two ways:
.
-continued on page 6.
and the Death Penalty", 407 The Annals of American Academy of Political and Sociol Sci. I 19,
123-124 (1973).
"The Richmond Times-Dispatch, "Unequal
Justice", a series published October 16-21,
1983. See also, The Governor's Task Force on Sentencing, "A Report To the Governor on Criminal Sentencing in Virginia", (December 1973).
7Joan Petersilia, Racial Disparities In the Criminal
Justice System, Prepared for NIC, U.S. Dept. of
Justice, xix, June 1983.
"Alaska Judicial Council, "Judicial Council Findings
Regarding Possible Racial Impact in Sentencing",
September 6, 1978. Table A.
'The Boston Globe, "Blacks Receive Stiffer Sentences", p. 50, April 4, 1979.

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