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Recent NPP Litigation

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1;

ISSN 0748-2655

NUMBER 20, SUMMER 1989

A Lawyer Looks Back at 16 Years With Case:

Monitoring Committee on
Prisons in Alabama Folds; Court
Gives Up Jurisdiction
Ralph I. Knowles Jr.
On December 29, 1988, judge Robert Varner, United States District judge
for the Middle District of Alabama,
ended "the Alabama prison case"-Newman v. Alabama. Unfortunately, 16 years
of litigation and monitoring of this case
could not end with a celebration, as
players in the case over the years had
hoped. A political climate demanding
longer, sometimes mandatory sentences
along with serious state budgetary problems caused the dream of the creation
of a constitutional and humane prison
system to cruelly and persistently elude
us. 1

Ralph Knowles has been a litigator in Tuscaloosa, Alabama for the last 19 years except for three years from /978 to /98/
when he served as associate director of the
National Prison Project His firm engages
primarily in civil"/itigation but continues to
be involved in major constitutional and political litigation. The firm was involved in
the primary landmark mental health cases
arising from Alabama as well as the prison
litigation.
'On May 9, 1989, john Hale, spokesperson for the
Alabama prison system, issued a press statement
that the rapid growth in the prison population (averaging a net increase of over lOOper month since
the end of the litigation) might quickly put the system back under federal court control. For a detailed, accurate and readable history of litigative
action and strategy in the Alabama Prison case
from its inception until 1985, see Yackle, L, Re-

More than 16 years after Federal Judge Frank M. Johnson Jr.
cited the state of Alabama for "barbarous" and "shocking" treatment
of prisoners, the lawsuit has been
dismissed.
After Judge Johnson turned the
case over to Judge Robert E. Varner,
Varner in 1983 established the Prison
Implementation Committee to recommend improvements in the system
and monitor prisoner complaints.
In December of last year the
committee recommended to the
judge that he dismiss the lawsuit and
disband the committee. Ralph
Knowles was one of the lawyers
working on behalf of the prisoners
for 14 of the 16 years. He was also a
member of the committee.

My involvement in the case began
in 1974, as one of the lawyers who tried
the "totality of conditions" case a¥ainst
the entire Alabama prison system.

The Case Had National Importance
I thought the case was of enormous
importance, not only for Alabama, but
for the nation. All the ingredients were
there: horrible facts; a humane, creative
and respected judge who was interested

form and Regret, The Story of Federal Involvement in
the Alabama Prison System, (Oxford University

2Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala

Press, 1989).

1972).

The 4xB cell in the "doghouse" which held six
prisoners in almost total darkness. Draper Correctional Center, Alabama, 1975.
in the case; and, good lawyers ready to
give the judge a record to support a
broad order. I became the local lawyer
for the National Prison Project of the
American Civil Liberties Union (NPP)
after johnson allowed the NPP to enter
the case as amicus curiae with rights of a
party.3
-continued on next page
'Matt Myers did most of the day-to-day work for
the NPP at this stage of the litigation; AI Bronstein
provided a guiding and experienced hand in preparing and presenting the qse. judge johnson also
appointed United States Attorney Ira DeMent and
the United States of America as amicus curiae with
rights of a party. Until the Reagan years brought
William Bradford Reynolds to the scene, the
United States, and particularly attorney Steve
Whinston, was of enormous assistance in protecting the constitutional rights of prisoners in the Alabama prison system. After Reynolds took control
of the Civil Rights Division at the justice Department, other counsel tried to keep the United
States out of the litigation because of its negative
impact.

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

•
and at the same time, keep control out
of the hands of outsiders and in the
hands of the highest elected official- of
the state. James enlisted Rod Nachman
to execute an innovative, courageous, although somewhat bizarre, plan. In February 1979, the court entered its extraordinary order appointing Fob James
"temporary r~eiver" of the Alabama
prison system~nd transferring all powers
of the Board}if Corrections to him. s
James did not function as a receiver.
Instead, he hired a new-albeit more
competent---eommissioner of corrections and went about business as usual,
assuming that his new commissioner
would implement simple management
principles and that the problems and the
federal court would go away. Naturally,
although improvements were made, such
was not in the cards. Population problems continued to grow; county jails
were loaded with state prisoners living

-continued from front page

On January 13, 1976, Judge Johnson
issued his landmark, comprehensive order affecting every important aspect of
the entire Alabama prison system."
From the outset, Judge Johnson
wanted a monitoring mechanism to help
achieve implementation of the wide
scope of the order. Thus, instead of appointing a "Receiver or Special Master"
as suggested by the plaintiffs and amici,
he appointed a blue ribbon "Human
Rights Committee" composed of 39
prominent Alabama citizens. s He selected a Montgomery lawyer, Rod Nachman, as chairman of the committee, and
allowed Nachman to hire George Beto,
the well-known former head of the
Texas Department of Corrections, as
chief consultant. The experience of the
Human Rights Committee was difficult
and frustrating to the committee and to
the litigants. Nachman zealously attempted to move an incompetent Board
of Corrections to carry out the terms of
the orders. 6 He and Beto succeeded in
getting the Alabama legislature to pass
progressive legislation which would have

The case was o( enormous
importanc~ noton~(or

Alabama, but (or the nation.
enabled the Department of Corrections
to dramatically improve educational programs and prison industries, and to give
expanded good time to prisoners. However, Johnson put meaningful, swift compliance efforts on hold when he informed the litigants that he would
entertain no major compliance hearings
until the appeal of his order was completed. Then, in the spring of 1977, the
court of appeals upheld the substantive
relief ordered..by Johnson but struck
down the Human Rights Committee as
being "too intrusive" because of its size,
credentials and its mandate to "take any
action."7
This left Judge Johnson with no
monitoring mechanism other than the
parties themselves.
In February 1978, Judge Johnson ordered the Department of Corrections
'Pugh v. Locke, 406 F. Supp. 318 (1976).
5The art and science of "mastering" in institutional
li\igation had not really been developed in 1976.
"Indeed, Nachman's aggressive activities on behalf
of the judge caused his "intrusive role" to be a
major focus of the state's attack on the order in
the court of appeals.
'Newman v. Alabama, 559 F.2d 283 (5th Cir.
1977).

2

SUMMER 1989

to file a "complete and detailed compliance report." Plaintiffs and amici objected to the contents and conclusions
of the report. A hearing showed that
much remained to be done; plaintiffs and
amici filed motions for further relief, including the appointment of a receiver to
run the prison system. Little did they realize that their wish would be granted in
a most unusual way.

Change of Command
The 1978 Alabama governor's election altered the course of the litigation
in a way none of the litigants had foreseen. George Wallace could not succeed
himself; a preViously little-known Auburn
football star who had become a millionaire by producing barbells and dumbbells
was elected. Fob James had simplistic,
conservative views about government.

James enlisted Rod Nachman
to execute an innovative and
courageous, although
somewhat bizarre, plan.
He thought all problems of institutions
could be solved by the application of
simple management principles. In his
view, federal court intervention had
been brought about by the ineptitude of
his predecessors. After election, but before taking office, he met privately with
Judge Johnson. He wanted, as governor
of the state of Alabama, to be appointed
as receiver.
His plan was to get rid of the inept,
but independent, Board of Corrections,

Judge Varner told defendants
they had better "qUit cursing
the darkness" and "light some
candles."
in horrible conditions; overcrowded
prisons were still understaffed and
poorly maintained; there continued to
be a lack of adequate mental health
-continued on page four

--------

"Newman v. Alabama, 466 F. Supp. 628 (M.D. Ala.
1979).

THE

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 facilrties by using existing administrative, legislative and iudicial channels; and to develop a1.
ternatives to incarceration.

The reprinting ofJOURNAL 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.

Dormitories at Draper Correctional Center in Alabama were so dangerous that no guard dared venture inside.
SUMMER 1989

3

---continued from page two
care--and on and on.
Meanwhile, judge johnson was elevated to the I Ith Circuit Court of Appeals and the case was transferred to a
conservative Republican judge, Robert
Varner. Surprisingly, Varner was willing
to be more forceful in attempting to
force compliance with the court's orders
than judge johnson had been.
Motions to hold the defendants and
the receiver in contempt for noncompliance were filed. Another hearing was
set for early january 1983. Contemporaneously, George Wallace won the gubernatorial election again. The stage was
set for the establishment of one of the
oddest monitoring mechanisms ever employed in institutional litigation-the
Prison Implementation Committee.
Receiver/Governor james had become disenchanted with his role. In spite
of hiring more competent managers and
taking some courageous political positions to attempt to deal with the
crowding, things just were not as simple
as he had thought. Moreover, he seemed
to have second thoughts about being
party to such "intrusive" federal intervention. Enough had been done, james
felt, to merit release from federal court
intervention, even though he had failed
to gain substantial compliance with the
order as it had been amended by agreement of the parties in October 1980.9
Nachman was unwilling to let the
prison system to which he had devoted
so much time over the years simply be
turned back over to the state under
George Wallace. He knew also that the
evidence would not support james' effort to end federal court supervision.
Those of us on the other side of the litigative table were in our own quandary.
We knew we would "win" at the hearing and, in the process, paint a dismal
picture of continued overcrowding and
other gross deviations from the October
9 order. Nonetheless, we were concerned about what would happen on the
inevitable appeal of any strong action
that Varner might take.
The hearing proceeded as we expected. At the end of a long day of testimony, judge Varner gathered the lawyers around the bench, saying: the
evidence given so far showed serious
noncompliance with the October 9 order; under a prior I Ith Circuit order he
might be forced to hold Attorney Gen'James, in fact, resigned as receiver while on the
witness stand at the hearing after delivering a nonsensical, meandering statement about the role of
courts and other matters.

4

SUMMER 1989

eral Graddick and Governor james in
contempt; and, they "had better quit
cursing the darkness" and "light some
candles." Varner's message moved the
parties to serious settlement discussio~,~
The plaintiffs and amici originally.: .
had two goals in mind: first, to keep the
October 9 standards intact as much ~
possible; and, second, to get a real master or monitor in place this time. 'o
Graddick blindly resisted any compromise while Nachman pushed forward to
try to reach accord before Governor
Wallace's inauguration.

By

lOSee, e.g., Porter, Order
The Court: Special Masters in Corrections (Edna McConnell Clark Foundation, 1988).

The Implementation Committee

Nachman and, through him, james,
maneuvered to avoid an outside enforcement mechanism and, instead, to have a
committee which would include Nachman as a member. II Although we felt
Nachman was sometimes too Willing to
chalk off serious deprivations as mere
administrative etror not subject to court
review, he w~/committed to forcing
the state to meet minimal standards as
he saw them. The question for the negotiators quickly became the make-up of
the rest of the proposed implementation
committee and the committee's role.
"I am confident that this was based on Nachman's
heartfelt desire that his longstanding work on the
Alabama prison system not be lost.

casionally, he rose, stood behind his
chair, or walked back and forth behind the bench--perhaps to encourage circulation, perhaps to register
disapproval. johnson showed no favorites. He was severe with all the
lawyers, intending, as he had throughout his career, to strike an intimidating posture in order to foster the appropriate
decorum in his courtroom.
"6
E
By contrast, he was extremely cordial
.§.
to witnesses. johnson understood that
'"
the expert witnesses had inconvenienced themselves to testify and made
< l;
it clear that he appreciated their
~
If anything, the judge was
efforts.
.c'
even more sensitive to the prisoners
~
whom Taylor and Segall brought to
Montgomery. Unlike other judges,
:E
who preferred to maintain tight secuJudge Johnson's descriptions of the "rampant rity when prison inmates were in
violence and jungle atmosphere" in the Ala- court, johnson allowed no distracting
bama prisons captured the nation's attention. precautionary measures. During trial,
Worley james and another named
plaintiff in the james case, William
judge Frank M. johnson jr. presided
Campbell, were in the custody of fedover the 1975 Alabama prison trial.
eral marshals. Yet there were no
When johnson issued his landmark
handcuffs, no chains. At recesses,
opinion, he cited the State for its
james and Campbell joined everyone
"barbarous" treatment of prisoners.
else in the corridor outside. Inmates
In this excerpt from his recent book, called to testify were also well
Professor Larry Yackle describes johntreated. It was inconceivable that anyson's courtroom demeanor.
one, even a convicted felon, would
judge johnson presided at trial in dare disturb proceedings before judge
the firm style for which he was fajohnson. The marshals anticipated that
mous. Anyone in the room must be
prisoners would behave themselves
vitally concerned with the business at and they did. II
hand; marshals instructed spectators
Excerpted from Larry W. Yackle, Reto stop talking and put aside newspa- form and Regret: The Story of Federal
pers. The judge peered down at the
Involvement in the Alabama Prison Sysproceedings over glasses that seemed tem (New York: Oxford University
to slip lower as the hours passed. Oc- Press, 1989), p.79.

I
I

Ultimately, an agreement between the
governor and the plaintiffs was reached
which established an "Implementation
Committee" of four: Rod Nachman and
Ralph Knowles or John Carroll,'2 and
two members nominated by the first
two and approved by the court. I would
represent the plaintiff side on the committee. The sides had agreed in advance
to nominate "corrections experts"
George Beto (selected by Nachman) and
John Conrad (selected by Carroll and
me) as the two other representatives.
The Implementation Committee
was given broad authority to "work
with the Governor, the Commissioner
of Corrections and all other relevant
state officials in monitoring and assuring
implementation of the Court's orders in
the most expeditious and fiscally sound
manner possible." The defendants were
to "make expeditious progress in fully
meeting the orders of the Court in all
facilities housing state prisoners." (Emphasis added.) Thus, the plaintiffs again managed to keep the strong and specific
provisions of the October 9 order intact. The committee was given authority
to require reports from the commissioner. It had access to all institutions,
staff, prisoners and records of the department and other relevant state agencies. Reasonable fees and expenses for
the committee members and any experts it might hire were to be paid by
the Department of Corrections. The
committee was to make reports to the
court as necessary and, as "a course of
last resort to be utilized only after the
Committee ha[s] done everything within
its powers to work with the Commissioner to achieve compliance without intervention of the court," it could recommend further action to the court.
Finally, the agreement gave the incoming
Wallace administration the ability to dissolve the committee. Then, in effect, it
took this power away by stating that if
the committee was dissolved, "the
Court will take whatever actions are
necessa~ to assure compliance with the
orders." 3 The agreement recognized
priorities for the committee: state prisoners housed in county jails; mental
health care; and, conditions in
segregation.
Over objections of the incoming
Wallace administration and Attorney
I2John Carroll, now a United States Magistrate, had
done yeoman service in representing the plaintiffs.
131n spite of this explicit provision and regular
complaints about the continued existence of the
committee over the next six years, the state never
moved for its dissolution.

Ralph I. Knowles Jr., a member of the Prison
Implementation Committee, said the committee
was not willing to put a "Good Housekeeping
Seal of Approval" on the prison system.

General Graddick, and with the grudging
oral approval of the Justice Department,
Judge Varner entered the order approving the settlement one day after George
Wallace resumed the governorship of
Alabama.

The Personalities of the
Committee
Rod Nachman was a prominent
business defense litigator known for taking an aggressive, sometimes insulting
posture toward anyone he deemed adversarial to him or the position he was
espousing at the moment. While president of the Alabama State Bar Association he had studied, and condemned, the
conditions in Alabama's prisons. During
that time, he had become friends with
George Beto, the controversial former
director of the Texas Department of
Corrections.

We never once in six years
issued a report that was not
unanimous.
Lutheran minister George Beto had
become director of the Texas Department of Corrections and then taught in
and administered the Criminal Justice
Center at Sam Houston State University
in Huntsville, Texas. He certainly was
not viewed as a friend to prisoners'
rights by those of us who litigated on
the side of prisoners. Further, he had recently testified as an expert that great
improvements had been made in Alabama's prisons under the James
receivership.

John Conrad grew up professionally
in the California Department of Corrections and was a true practitioner and
scholar of corrections, particularly violent offenders. He was a primary corrections expert for plaintiffs and amici in
the original trial in 1975. He continued
thereafter to consult with, and testify
for, prisoners in conditions cases. Once
described by atorrections official in Alabama as "a betded liberal from California," Conrad responded that it was an
outright lie--he did not have a beard.
My litigation background was
steeped in constitutional and civil rights
litigation on the plaintiffs' side. I served
for three years as the associate director
of the National Prison Project of the
American Civil Liberties Union, supervising and conducting litigation against jails,
prisons and juvenile institutions. Although I hope my reputation is that of a
reasonable person, some view me as
having radical beliefs on some topics.
The success of the Implementation
Committee may be owed to the varying
personalities and the structure of the
committee. From its inception, it was
the committee's job to "work with"
counsel for state officials and prisoners
to bring about compliance with the
Constitution and the court's orders.
Terms of the order required that three
out of the four would agree before the
court could be requested to take further
action. Moreover, we all knew that if we
spoke with more than one voice on any
substantial issue we would diminish
whatever power we might have to get
results. Corrections and state officials
knew, of course, of our different perspectives. Frequent efforts were made
to play upon these differences to fragment and lessen our efforts. Nonetheless, even though there were often
strong and heated disagreements, we
never once in six years issued a report
that was not unanimous.
Group dynamics and external forces
tended to bring us closer together, not
just as colleagues but as friends. I had
long known John Conrad to be a kind
and decent person. My beliefs about
George Beto were not the same. However, Conrad had known Beto from various American Correctional Association
ventures and assured me that he was
not what I believed him to be. I now believe he is an extremely well-educated
man who honestly cares about and actively contemplates the human condition.
Interestingly, although Conrad and I
were usually on the same side of disagreements within the committee, that
-continued on next page
SUMMER 1989

5

·

"

--continued from previous page
was not always so. Indeed, more times
than one would expect, Beto and I
worked together to persuade Nachman
and/or Conrad to take a different position. We had, and have, strong disagreements, yet I never saw any member of
the committee take a position for corrupt or personal reasons.
The Wallace/Smith Years
George Wallace was not going to
allow Governor James' people to run his
prison system. He quickly appointed
Freddie Smith, the Department of Corrections' associate commissioner of research, monitoring and evaluation, as
commissioner of corrections. Smith skillfully instituted a Supervised Intensive
Restitution (SIR) program to give prisoners early release to reduce the population. He preached the right gospel
around the state on not being able to afford building new prisons and the need
for alternatives. On the other hand, he
was absolutely untrustworthy.
. Smith demanded specifics from the
committee of what he had to do to get
the system out from under federal court
supervision. The obvious answer was to
eliminate state prisoners from county
jails and comply with the terms of the
extensive and specific October 9, 1980
order. This he refused to accept. Further, he demanded that if at any point
there was compliance with any part of
the court's orders, then there should be
a dismissal of that part of the order. We
succeeded in sticking together on the
position that this was, after all, a totality
of conditions case and that compliance
would be judged overall.
Smith waged a constant news media
battle with the committee, calling for its
end and claiming that we were in it only
for the money. Despite these attacks, his
associates continually came with new
plans in response to substantive issues
raised by the committee or John Carroll.
Movements toward a better system included: development of the SI R program; development of a credible study
to determine the need for correctional
officers; promising activities for prisoners
in administrative segregation; and modifying cells used to house prisoners in
need of mental health care.
In July of 1983, Smith filed what he
called a "Federal Court Order Final
Compliance Report," and announced to
the media that this would be his final report to us. He further demanded that
the Implementation Committee's scheduled meeting to review the report be
held at his office, not Nachman's. Unwill6

SUMMER 1989

ing to allow the court to be manipulated
in such a crude way, we proceeded wit"
our meeting as scheduled. Smith contin-.'
ued his guerrilla warfare against the
,,;~;
committee by setting up name cards
(printed by prison industries) around
table at his office and holding a televised
press conference to lambast us for "(liiding reasons to continue our existence!"
The committee overcame its initial
bitterness towards Smith's cheap tactics
and instead looked at the good changes
that had been made. Nachman, Beto
and, to some extent, Conrad, were actually optimistic that by year's end the
committee could declare that the prison
system should be released from court
order. I, on the other hand, still insisted
on a system that met all the terms of
the October 9 order. The winter of
1983 and spring of 1984, however, discouraged us all.

Smith was absolutely
untrustworthy.
The numbers of prisoners could not
be managed in spite of the SIR program
and the opening of a I,OOO-person facility in St. Clair County in the summer of
1983. Attorney General Graddick continued to undermine any effort to reduce crowding through prisoner release
by attacking the parole board and the
SIR program. A meeting of the Implementation Committee with the parole
board to encourage more paroles of
nonviolent offenders succeeded in getting members to agree that more paroles should be granted. We were unsuccessful, though, in persuading them to
have the political guts to do anything
about it.
Graddick ultimately filed a successful lawsuit in state court challenging the
SIR program-the linchpin of Smith's
population control effort. 14 The committee then joined with the plaintiffs in urging contempt sanctions against Graddick
for interfering in compliance with the
orders. Judge Varner once again obliged,
because of a previous I Ith Circuit mandate, which he believed required that he
hold officials in contempt before ordering the release of prisoners. He also held
Commissioner Smith in contempt for
noncompliance. Since he was holding
state officials in contempt, he finally ordered Smith to select inmates "least deserving of confinement" to be released if
any state facilities remained over"The Legislature later took appropriate actions to
allow the SIR program to continue.

crowded as of March 15, 1984. Graddick
appealed the orders.
At the same time, the committee
recommended that the legislature pass a
"population cap" statute, allowing the
commissioner to release prisoners when
the population limit was exceeded.
Needless to say, that proposal went nowhere. After le$islation was passed continuing the SIR ~rogram, we urged Smith
to increase the";,:humber of people in the
program to save money and space. At
this point, however, Graddick's demagoguery had taken hold and Smith instead decided to load industrial barracks
at the new West Jefferson facility with
bunks and prisoners. We toured the facility and issued a strong report condemning this action as foolhardy and
dangerous. Yet no immediate relief was
taken. Appeal of the contempt citations
was pending, further stifling our efforts.
In September 1984, the I Ith Circuit issued a bittersweet order. On the
one hand, it glowingly approved of the
Implementation Committee and ratified
its powers. On the other hand, it sub- .
stantially damaged the power of the
committee and the court to act decisively in the future by reversing the contempt citations. The Circuit held that
before Varner could order releases, he
would have to hold a full hearing and
consider the constitutionality of conditions in Alabama's prisons anew in light
of more recent Supreme Court edicts
concerning conditions of confinement.
Through the rest of our tenure, we studiously avoided showing any concern
about this order. I was able to pull language from it to support the view that
the prior orders were still persuasive in
determining the constitutionality of the
system. In reality, it caused us to be
much more circumspect in our actions.
Smith continued to demand publicly
that we go out of existence, but did not
file proper motions. We debated among
ourselves whether the committee could
continue to be useful. Nachman and
Beto thought that the state did deserve
some credit for the progress that had
been made. John Carroll did not relish
the thought of another full-fledged trial
before Varner on prison conditions and
the inevitable appeals of those decisions.
Nachman again began to contemplate a
compromise.
The Court Relinquishes Jurisdiction
In a pleading worthy of notation in
legal history, the committee filed a
"Consent Order of Dismissal" with
Judge Varner in November 1984, entered on behalf of all parties except At-

torney General Graddick, who objected.
Consequently, the court entered an order finding that conditions in the prison
system, except West jefferson, were "in
sufficient compliance" to recommend
"dismissal of this action" subject to the
other conditions of the order. Plainly
and concisely, the court relinquished
jurisdiction as of December 3, 1984.
In the next paragraph, however, the
order extended the life of the Implementation Committee until january I,
1988, to "conduct such monitoring activities as it deems appropriate in accordance with the fulfillment of its role
in these cases." Finally, judge Varner
held that "the jurisdiction" of the court
could only be reactivated upon petition
of a majority of the committee. If the
committee did not recommend reactivation, the case would be dismissed with
prejudice on january I, 1988. However,
now the committee had total control of
the agenda even if weakened somewhat
by the I Ith Circuit order. Curiously
(and by design), the committee and lawyers for the parties held a ceremony
with Governor Wallace and Commissioner Smith announcing that the prison
system was no longer under federal
court jurisdiction.
The committee met for a meeting
in October 1985 to review the status of
the prisons. Carroll again raised the old
problems of crowding, idleness and lack
of adequate mental health care. We demanded reports on all issues and met
again in February 1986. We did our
usual thrusting and parrying and, as usual,
made some progress on identified problems. Separately, I became involved in
litigation through the summer and fall of
1986 which resulted in Attorney General Graddick's removal as the Democratic nominee for governor. Because of
voter anger, it resulted, to my chagrin,
in the first Republican being elected governor in over a""hundred years. Nonetheless, Graddick's defeat was probably my
major contribution to the Alabama
prison system.

Unsatisfactory Meetings
In the meantime, corrections was
badly underfunded for 1986. A new facility could not open because of a lack of
money for staff. More bunks were
placed in overcrowded facilities. The
committee met with the new governor,
Guy Hunt, just before he took office.
We prepared a detailed memo for
the Hunt meeting about the prison system and state sentencing practices. We
advised him to seek alternatives to incarceration; to extend the good time laws;

to do away with the Draconian habitual
officials, law enforcement officers. vicoffender act; and to move away from
tims' rights advocates, legislators and
new building as an answer to crime since.~ others who met often and around the
the state simply could not afford it. We;j~state. The Task Force developed a broad
were quite proud of our collaborative~, agenda for change which called for a
effort.
/f zero-based growth rate in the prison
I will never forget the day of the ',,;' system within two years.
meeting. It was rainy and cold. We haq;1'
agreed to pay a farewell visit to George Overcrowding Clogs the System
Wallace after seeing Hunt. We walkCi!p
Nonetheless~the numbers continto the Hunt meeting with unjustified en- ued to far outpacl! the spaces available.
thusiasm. After cooling our heels outside The parole board became even more
his office while various political hacks
paralyzed as a result of a grand jury inwalked in, we were finally ushered into
vestigation over the release of a prisoner who committed a particularly bruhis office. He clearly had no clue as to
tal crime. Thus, as the date for the
who we were, why we were there or
committee's termination approached, we
what we were talking about. After 15
minutes of a blank face, there was a loud once again agonized over our role and
knock at the door and the governorwhat we should do. Many in state govelect said he had to go. In dismay, we
ernment and in the criminal justice sysleft to go to the governor's mansion and tem told us the system would go backWallace.
wards without the pressure of the
committee. The governor's office told us
they would help in getting the parole
Governor-elect Hunt clearly
board to reduce the numbers; they
thought the job could be done in six
had no idea who we were,
months. Some of us on the committee
why we were there, or what
believed there were still serious syswe were talking about.
temic problems relating to physical conditions, staffing, housing and care for the
mentally ill, and idleness. Others considNachman and I had both been foes
of Wallace for many years. Nonetheless. ered crowding to be the evil which exit was depressing to see this once strong acerbated the other problems. Our
and feisty man dressed in a stiff white
quandary was worse because. in truth,
shirt and tie lying in bed barely able to
we all were burned out on the case. Fihear and to sit up only for a few minnally. we decided we could not in good
utes at a time. After 30 minutes of lisconscience fold up and leave.
We issued a lengthy report to the
tening to the pitiful rambling of a very
judge, outlining the history of the
sick man, we tried to leave. His last
question was, did I really think his man
crowding problem, recognizing the
Freddie Smith had done all right? I griother problems in the system. asking
that the committee life be extended unmaced and allowed as how he had done
some good things and then he had not
til july I. 1988. and recommending. that
done so good on some things. He didn't the court appoint Commissioner Thigpen as "temporary receiver" of the paseem satisfied. ls
role board with all its powers if the
Hunt appointed Morris Thigpen
crowding problem was not solved by
commissioner. He had directed the Misthen. On December 30, the court ensissippi system and was known as a
thoughtful and progressive administrator. tered the requested order and opined
that the state would save much money
He subscribed to the need for alternatives to incarceration to deal with over- in welfare benefits if people who were
now being housed in prisons were out
crowding. Further, members of his staff
communicated to us that they wanted to working.
We met monthly thereafter with
do what was necessary to get out from
the parole board and corrections offiunder the court's jurisdiction. In the
cials. Under our threat and aid from the
summer of 1987, the committee met
governor's office, and under the new
with trial judges from around the state
to discuss the crowding problem and the leadership of a Republican former police
officer, joel Barfoot, the parole board
need for alternatives. Chief justice C.C.
moved forward. Between March and
Torbert activated a broad-based Prison
july, there was a net decrease of over
Task Force. which included corrections
900 prisoners as a result of its activities.
When july came, we could see the
,sSmith was later indicted and convicted for douresults of our efforts but they were cerble-billing on trips to New York. He died in a sin-continued on next page
gle car accident while speeding and drunk.
SUMMER 1989

7

-continued (rom previous page
tainly not complete because of overcrowding. We also had little confidence---despite assurances to the
contrary-that the parole board would
continue that pace or anything close to
it. We commended the actions of the
board to the court and, once again, recommended an extension until December
31, 1988. This time the Department of
Corrections formally moved that the
court dismiss the case and discontinue
the committee. We were informed in
no uncertain terms of Thigpen's and the
governor's office's displeasure with our
request to extend. On the other hand,
some high officials continued to tell us
privately that it would be disastrous for
us to leave. The judge granted the committee's request and denied their
motions.

A Frustrated Committee Disbands
At this point, the tired and frustrated committee was moving inexorably
toward abolition. The case had gone on
for over 16 years. john Carroll, the able
lawyer for the plaintiffs, was now a
United States Magistrate. Thus, we were
in the awkward position of becoming adversaries instead of remaining a neutral
body meant to mediate and force action
when necessary. Without any doubt, the
barbaric conditions that existed at the
time of judge johnson's order were long
since gone. Yet, in addition to the
crowding, other persistent problems
with staffing, mental health care, conditions in segregation, and idleness continued to dog the system. All four of us
had been involved in the case in some
way from the beginning. We wanted it
over.
john Conrad and I decided we
could not make a final report without
reviewing conditions in at least some facilities one last time. Beto and Nachman
deemed such tours unnecessary because
they knew they would continue to find
the problems identified in the past. We
did not announce our tour until an hour
before we arrived at Holman prison.
What we saw was discouraging.
Physical conditions at three of the older
major prisons were deplorable. The
"mental health prison" at Union Springs
seemed to be questionable in operation.
There was much idleness. Many prisoners should not have been incarcerated
at all. While the improvements since the
beginning were obvious, we certainly
would not be able to give the prison
system a "Good Housekeeping Seal of
Approval." Conrad and I reported our
findings to our colleagues who also re8

SUMMER 1989

The case had gone on for ~ver .~
/6 years. ... We wanted It;~~
over.
...

i*·

,.;

viewed snapshots I had taken. Both ~er~
chagrined. Again, we were barraged~\
with advice not to end the case. Unfortunately, the parole board had greiltly
reduced its parole rate. We all became
emotional about what we should ethically d<>-ranging from further strong
action to simply letting the case end
without comment.
Finally, we all came to a unanimous
conclusion. Much progress had been
made. While serious problems existed
and while we all thought the overcrowding would ultimately have the system back in court, the Implementation
Committee's tenure should end. Over
time, in spite of enormous achievements,
our structure was no longer adequate to
the task. Additionally, we were burdened with the knowledge that the I Ith
Circuit had recently held that as long as
we continued, all complaints from Ala-

bama prisoners which related to our
broad order must be consolidated into
our case. We had never functioned in
that manner and would be a fraud if we
continued.
We filed a report which detailed
the historical improvements made; gave
well-deserved praise where due; identified our concern over existing problems;
and warned th\t the statistics were ominous for the future. The judge accepted
our report arfd on December 31, 1988,
the Prison Implementation Committee
became history.
The Prison Implementation Committee was, in many ways, a successful
mechanism for progressive change and
movement towards substantial compliance with constitutional standards. Its
flexible approach allowed victories in the
political arena which probably would not
have been possible under a more traditional approach. The committee was, on
the other hand, aberrational in origin
and personnel. Although lessons have
been learned from its existence, it may
not be a model for other institutional
cases. I11III

Georgia Study Reveals Racial Bias in
Sentencing
Maria Martino
According to a three-and-a-halfyear study of prison and probation case
files handled in Georgia courts between
january I, 1985 and August 31, 1988,
black men convicted of a wide range of
offenses in Georgia were at least twice
as likely to go to prison as white men
convicted of the same crimes.
Evidence of racial disparities in sentencing emerged from an Atlanta JournalConstitution study based on data obtained
from the Georgia Department of
Corrections.
The study suggests that race may
play more of a role in sentencing than
Georgia judges realize. Findings indicate
that black men convicted of burglary
were 50% more likely than white men
to go to jail; black men in 12 circuits
were more than twice as likely to face
prison terms for violent crimes; and in
22 of the 38 circuits, black men were
20% more likely to go to prison in drug
sale cases.
In a time of prison overcrowding
and law-and-order public sentiment, the

Maria Martino is a staff assistant at the
National Prison Project

issue of fair sentencing has never been
more urgent.
Although most Georgia judges reported that they try to be consistent
rather than race-conscious, a few say the
defendants' race may inevitably get factored into the sentence.
"People don't necessarily lose their
biases when they're elevated to the
bench," john H. Ruffin jr., a superior
court judge in the Augusta judicial Circuit told the Atlanta Constitution. "It's
naive to think that the judiciary is insulated from the attitudes that exist in
other segments of society." I11III

Dramatic Rise in Numbers of
Elderly Prisoners Means Special
Care, Increased Costs
Betsy Bernat

•

I worked for the state as oyster inspector. That was at Chincoteague
up on the Eastern Shore, the forgotten part of Virginia, from out here
that is. I had to do with water a/l
my life. I'm a boatman. I was told
when I came here that the only
water I would see was that which
come out of the spigot, and I reckon
that's about right I love the water
and I miss that so bad that it hurts. I

A Small But Growing Number
For years they were easy to forget.
"Old joes," as they've been called, were
relatively quiet, their numbers few. But
elderly prisoners, both male and female,
are now one of the fastest growing segments of the prison population, and evidence points to greater increases to
come. Care of the elderly is a specialized, complex field in which few corrections administrators are trained. Their
care is also expensive. Corrections administrators are facing a problem growing qUickly in dimension, involving unique
solutions and prohibitive costs, with little precedent to guide their response.
Statistics illustrate the steady
increase:
• In 1985, 10,563 persons over
55 were incarcerated in state and federal prisons. In just three years, that
number rose to 12,878.2
• In 1987, Florida housed 1,350
prisoners aged 50 and over. Projections
put that number at 3,094 by the year
2000. Also, the 'humber of inmates in
Florida aged 56-65 grew by 56% between 1981 and 1987. The general population increased by just 25%.3
No wonder, then, that the National

Betsy Bernat is the editorial assistant for
the NPP JOURNAL
'The author thanks Eve Kupferman of National
Public Radio for making available tapes of elderly
inmates at Virginia's Staunton Correctional Center
from which quotations throughout this article
were taken.
'American Correctional Association, Directory,
(1986, 1989).
3Richard L Dugger, "The Graying of America's
Prisons," Corrections Todoy, The American Correctional Association, June 1988.

, population was serving an average sentence of 25. I years according to a February 1989 profile of the state's prison
,
population.s
• 49%, 0~,.3,578, of Tennessee's
7,253 state prisoners were serving sentences of 20 years or more in 1988 as
were 44%, or 4,845, of Alabama's
11,020 prisoners. 6
• In 1982, 42,451 offenders in 42
states and the federal system were sentenced to 20 years or more in prison.
By 1988 the figure had risen to 71 ,848
in 45 states, including 8,569 inmates sentenced to natural life imprisonment.?
• In New Jersey, in 1979 just 51
of that state's inmates were sentenced
to prison terms of over I0 years. By
1985, that figure had jumped to 1,645.8
j
As these inmates age, they will
:: need all the special treatment and medi~ cal attention normally required for
~opulation projections forec~st an alarming rise
proper elderly care.
m the numbers ~f elderly prtsoners, w.hose care
"When I began working with elcan cost three tImes that of younger mmates.
derly offenders back in 1973," says Dr.
Council on Crime and Delinquency
Braden L. Walter, a private consultant in
(NCCD), in its 1988 prison population
Pennsylvania, "there were only a handful
forecast, predicted the advent of "cor[of elderly inmates]." They included inrectional 'senior citizen' rest homes."
mates serving long sentences and career
criminals who'd been in and out of
prison all their lives.
The Forgotten Few
"In 1980, we saw this third kind
start to emerge: people who had been
model Americans all their lives," says
I have a 40-year sentence, at 74
Dr.
Walter, "but at the age of 60, 65,
years of age. It's so long and I work
70 were committing serious crimes: sex
as hard as I can, and I've never had
offenses, arson."
a charge and I'm trying to get home
Elderly crime has increased partly as
before I die, you see.
a result of demographics: our population
is aging, therefore we have more elderly
criminals. What's surprising, however, is
One of the major forces behind the how many have been convicted of vioincrease in elderly offenders is the trend lent crimes: homicide, rape, child molestoward mandatory and longer sentences. tation. Naturally these crimes command
More and more inmates are being senlonger sentences, thereby doubly imtenced to terms which practically guarpacting statistics.
antee they'll grow old in prison. The ef"Getting people interested in gerifect of this trend will become even
atric offenders is an uphill battle," says
more critical as these young offenders,
-continued on next page
sentenced now, begin to age. Their
numbers are already staggering and point 'Characteristics of the Felon Population, Virginia Department of Corrections Research and Evaluation
to potential disaster down the road.
Unit.
• In 1988, 49% of Virginia's state
6/988 Corrections Yearbook, Criminal Justice Instiprisoners-5,567 of I 1,410 inmatestute, (South Salem, NY).
were serving sentences of 20 years or
7/982 and 1988 Corrections Yearbook, Criminal Jusmore." Furthermore, the confined felon
tice Institute, (South Salem, NY).

•

'1988 Corrections Yearbook, Criminal Justice Institute, (South Salem, NY).

"Andrew H. Malcolm, "Prisons Seen Facing Surge
of the Elderly," New York Times, (December 24,
1988).

SUMMER 1989

9

-continued from previous page
Dr. Joann Morton, former director of
special projects for the South Carolina
Department of Corrections. "Problems
such as overcrowding strain the entire
prison system. We have the need, but
we don't have the resources to meet
the need. The elderly tend to be
forgotten."

Classification

•

You just can't associate with everyone here because there are different
types of people. I try to associate
with people more my age. You can
discuss things with people my age
and they'll understand what you're
talking about I like to read a lot
and discuss things I read. I cut articles out of the paper. I go and discuss them with those young boys out
there and they look at me like I'm
crazy.

Should elderly inmates be housed
by themselves, where they won't be victimized by younger inmates, or with the
general population? Dr. Larry Fultz, a
staff psychologist for the Maryland Parole Commission, surveyed the state's
elderly inmates and found that "over
90% wanted to be housed with their
own age group."
A sizable percentage of elderly inmates committed brutal crimes; do they
themselves pose a security risk?: sometimes, but not always.
"There's this belief that if someone's old and infirm, they can't hurt anyone," says Dr. Walter. "That's just silly."
A few older inmates are dangerous and
require maximum security placement.
"Security is a complicating. factor,"
Dr. Morton acknowledges. "We have
three choices. You can centralize based
on age, decentralize or do both. What
you find you have to do is prOVide services in minimum, medium and maximum
facilities.
...
"If they can't function, especially
medically," Morton continues, "or they
can't cope, then we bring them into a
special unit." South Carolina has a geriatric and handicapped unit in a minimum
facility and a smaller one in a medium/
maximum facility.
.

The older prisoner often requires special medical attention rarely available in prisons.

alarmed Pennsylvania officials in the late
70s that they released many older
inmates.
Many inmates may even require
skilled nursing home care, beyond that
which the prison can financially prOVide,
yet they can't be paroled.
Experts also often recommend soft,
bland diets. Facilities should be fitted
with railings in the hallways, and ramps
for prisoners who use walkers or wheelchairs. The elderly inmate's lowered resistance to illness gives more importance
to a clean environment. 10
Staff need to be trained in gerontology. "They don't know what it's like
to be old, how this presents certain psychological, economic and social problems," comments Dr. Julia Hall, a social
psychologist specializing in criminology
and gerontology at Drexel University.

"To keep somebody busy for 20
years is a trick," says Barbara Gottleib,
staff psychologist at the Correctional

Center for Women in North Carolina.
"What do you do to give your life
meaning?"
Many benefit from substance abuse
programs. A strikingly high number have
substance abuse problems; their crimes
are often alcohol-related.
Older offenders are not too aged
to profit from educational programs,
.
though some experts suggest separate
classes to ease the frustration they might
feel among younger, faster learners. I I
Recreational programs are also popular. A South Carolina program combines crafts and horticulture, encouraging inmates to build on experiences
from their youth. One man had been
taught to crochet by his grandmother;
he then taught the skill to other
inmates.
Programs which focus on the aging
process itself have proved rewarding,
too. Dr. Hall meets weekly with the
Concerned Seniors at Graterford, a
group of elderly offenders at Pennsylvania's Graterford Prison who look at issues of aging and at the older community to which they'll be returning.
Recently, Maggie Kuhn, national
convener of the Gray Panthers, visited
the group. The result? "They're forming
the first prison chapter of the Gray
Panthers!" Dr. Hall exclaims.
Experts also stressed the importance of community involvement, for instance, through church and senior citizen
groups. Besides providing a link to the
outside world, these contacts can be
useful at parole time as elderly offenders
return to the community.
When they do return, the elderly
often have no place to live, and are too

'OJoann B. Morton and Judy C. Anderson, "Elderly
Offenders: The Forgotten Minority," Corrections
Todoy, (December 1982).

"Gennaro F. Vito and Deborah Wilson, "Forgotten People: Elderly Inmates," Federal Probation. 49
(I), (1985).

Programming for Elderly Offenders

•

I attend a group and go to AA
meetings over here every week. I go
around this track so many times
now every day when it's open, and
the fella been telling me that every
time I go around five times, it's
three miles or something if you
walk. So I go around every day.
Sometimes I go to the library and sit
around and read different books and
the newspaper.

Special Care
"Medical needs are paramount,"
says Dr. Morton. Elderly inmates require
such frequent, and often acute, medical
care that their cost of incarceration is
estimated to be three times that of
younger inmates. 9 The expense so
'Id.

10 SUMMER 1989

old to work. They don't know where to
turn for medical care and other services.
Both Dr. Walter and Dr. Hall have developed programs aimed at making return to the community successful.

Elderly Women in Prison
Perhaps the fastest growing population of all is the female offender, many
of whom carry long-term sentences. "A
lot of the women are here for violent
crimes against an abusive spouse and in
this state they get life for it," says
North Carolina's Gottlieb.
But because there are fewer female
prisoners, their facilities tend to be
more centralized, often making visits difficult. 'Their family might be five hours
away," Gottlieb explains. "They might
not have the money to visit or reliable
transportation. What happens is the family stops visiting after a year or two."
One advantage elderly female offenders have over their male counterparts is the tendency in women's prisons
to create 'families.' Older women take
on a motherly role and often are referred to as "Mom" or "Granny."

This sense of family, though comforting, can make release time even
more difficult, particularly if a woman
has lost touch with her real family on
the outside. "A lot of them feel tremendous anxiety," Gottlieb says. "Who will
hire you? Who will be there for them?
People aren't isolated here. When they
leave, the isolation's pretty extreme. A
lot of women commit infractions to
come back in."

Questions and Options

•

I don't think jails are the proper answer. I never thought you could
make a dog better by being cruel to
him and deprive him of his rights,
like you chain him and keep him in
a close place.

-"A lot of the older offenders are
not a danger to themselves or others
and could be supervised in the community if alternative resources were Widely

Parole
"The elderly often don't have
families," points out Dr. Julia Hall, a
social psychologist specializing incriminology and gerontology at Drexel
University. "They may have expended
all their funds on legal costs. Many
have not had regular employment sl:!
they don't have pensions." They often
can't afford proper housing and many
require nursing home care.
"It's tough enough to find ajob
when you're old," she says. "As an
ex-offender, you've got a double
stigma. And if you've been imprisoned for a while and haven't had a
chance to upgrade or learn new skills,
you're not very marketable."
Also, elderly ex-offenders often
lack a social support system, particularly if they flave no family, and may
find it difficult to develop one with
people their age. "Crime is one of
the greatest fears among elderly, so
imagine an ex-offender coming to a
senior citizen center," Dr. Hall
explains.
She has developed a program
which trains parole and probation
agents and readies the elderly inmates
for release. Agents learn to understand their clients' special concerns,
and to identify the services, programs
and benefits available to them. "Information and referrals can make thedifference whether these older people
survive," Dr. Hall says.

Dr. Hall meets weekly with the
Concerned Seniors at Graterford to
discuss the older community to which
they'll be returning. Recently she invited a group of senior citizens from
the community to a meeting. "They
walked in apprehensive," she says,
"but then they started talking with
the inmates about their mutual concerns and found they had more in
common than not. There's a great
deal of empathy where there was
hostility and apprehension before."
Dr. Braden Walter, a private
consultant, is developing an elderly
offender project under the auspices
of Consilium, Inc., a nonprofit group
based in Pittsburgh. This program will .
target elderly offenders while they're
incarcerated and follow them closely
through the pre- and post-release
process.
.
Based on the "notion of finding
the right thing that works for each
person," according to Dr. Walter, the;
program calls for lots of personal attention, individual and group counseling, and life and personal skills training
in subjects ranging from reading to
grandparenting. Project support follows the inmate upon release, assisting with housing and job placement,
and allows the inmate to transfer his
dependency on the prison system to
the project until he or she is able to
function alone. III

available," says Dick Franklin of the National Institute of Corrections. "Many
police, courts, and probation staff lack
knowledge of the aging process and so
many of the older offenders end up in
prison because people don't know what
else to do with them."
Is the public being well-served by
incarcerating them, in terms of both security and economics?
Marci Brown of the National Center on Crime and Delinquency replies,
"It depends on how you judge that.
Ages 18 to 22 a~ the high crime ages.
It tapers off aftet that, so we can figure
there would soH: of be a natural tendency for this person not to commit as
many crimes. Second, do you measure
success as it affects the crime rate? This
country's attempts to do that with gettough laws have been a miserable failure.
We have more people locked up than
ever before with very little change in
the crime rate.
"Corrections departments need to
conduct statewide projections to see
how their present system will look 10
years down the road."
According to Bud Walsh, executive
assistant to Adult Institutions in New
Jersey, "Some people have proposed
separate sentencing courts as we do
with juveniles. Say you get a person
who's 70. Despite the fact that the person could logically receive a 30-year sentence, would you mitigate that because
of age? Do you need to give that person
a longer sentence, or reduce it so he has
some life left when he gets out?"
Despite the recent interest in elderly offenders, is it realistic to think
they'll receive more attention and better funding in the future?
Brown is skeptical. "If policies stay
the same as they are now, and if the
prison population grows as much as our
projections figure it will, then it's very
doubtful that those needs will be met. It
will put a further strain on correctional
budgets. The prison system is going to
be so overcrowded that all services will
be more limited." III

•

When you look at [the younger people] you see how you went into
prison. You just have to go to the
mirror to see how it made you. I
didn't have that white hair when I
started. Now I've got it Prison made
that white hair.

For further information: The National Institute of Corrections plans to publish a report on the elderly offender this summer.
Contact Dick Franklin, NIC, 320 First St,
N.W., Washington, D.C. 20534.
SUMMER 1989

II

Citizen Involvement Can Play
Key Role in Corrections
Margot C. Lindsay
At a recent conference a circuit judge
asked the people in the audience to put
themselves in his shoes. He presented
two cases, and asked his listeners to decide whether to grant probation without
any conditions as requested by the offender, or to send him to prison. To
many in the audience, neither punishment seemed a good fit, and that was
exactly the point the judge wanted to
make.
"There are very few open and shut
cases," he said. "We need a middle
ground." Or, in the words of another
judge echoing his appeal: "We need
tough, meaningful punishment outside
the walls."
The untenable number of inmates in
our prisons make this "middle ground,"
this "tough, meaningful punishment outside the walls," not just a good idea
from the point of view of justice, but an
urgent need, lest state after state sink
.under the cost of building the cells
which will be required if present sentencing patterns continue.
Development of these options can be
difficult. Legislative and public support
are needed to make these changes successful, but the changes aren't comfortable ones. As long as offenders are put
in prison the public feels safe. But middle
ground options, be they intensive supervision probation or intensive parole,
community service or restitution centers, halfway houses or house arrest, directly affect the public. Offenders end
up on the street rather than behind
bars. To citizens already upset about
crime, this can seem extraordinarily
threatening to their own safety and to
the safety of their families and neighbors.
To many, prison is the only valid form of
punishment; "anything less is but the
proverbial "slap on the wrist." Middle
ground options can be very hard to sell.
A Role for the Public
These feelings on the part of the public are understandable. In the past, prison
reformers have not paid much attention
to those with different priorities. In the
1970s, many prison bills, enacted in the
wake of the uprising at Attica, were in-

Margot C. Lindsay is the chair of the National Center for Citizen Participation in
the Administration ofJustice. She has
worked extensively with adVisory board
members and administrators and serves on
a number of justice-related boards.
12 SUMMER 1989

,.;f¥

The best way for citizens to
become informed is to be o~;ed
a ringside seat
i~
tended to prOVide more humane conditions for inmates. It was difficult for
many people to see why that was important. There was little mention that
these reforms could also serve the public's safety, that more humane conditions
would produce more humane individuals
coming out from behind the walls.
No comparable measures were being
enacted on behalf of victims, who were
left to organize and make their own demands a few years later. This conveyed
an impression that advocates of prison
reform were "soft on crime" and more
interested in the welfare of the inmates
than in the welfare of the general
population.
Furthermore, the development of
community-based sanctions may seem to
be yet another government policy which
considers the rights of special groups at
the expense of the rights of "ordinary
people." The community-based trend in
corrections follows the communitybased trends for other populations: juveniles, addicts, the mentally ill and the
mentally retarded.
Therefore, it becomes vital in planning
community-based sanctions for the public to be brought into the process. They
need to learn early on just what they
are being asked to accept from those directly involved in planning and implementation. They need a chance to respond, and to feel they have been heard.
Here are some of the things members of
the community will want to consider:
• which community-based sanctions
are being considered and why they represent true punishment;
• which procedures will provide for
the safety of nonoffenders and why they
will be effective;
• what impact these programs are
likely to have on the tax rates and the
demands they may make on local fire
and police departments and on other
community resources;
• how these programs will be monitored and evaluated, and who will decide whether they should be continued;
and above all,
• how the concerns of the public
will be heard and addressed.
We believe the best way for citizens

to become informed, reassured, and finally supportive of "middle ground" options is to become involved, to be offered a ringside seat, a role in reviewing
the plans and monitoring their implementation. Many states with "middle
ground" options have already developed
such a role for the public:
• In Virginia, citizen panels screen offenders from their area to see whether
they are acceptable candidates for community sentences;
• In Iowa, citizen advisory groups to
individual programs join with district
boards of direttors to form a monitoring, as well asi>supportive, network
around the whole array of communitybased correctional programs;
• In Idaho, adVisory board members
of community correctional work centers
meet monthly to monitor operations, to
voice needs of the community and see
that they are met, as well as to help residents gain access to local resources;
• In counties included in their states'
Community Corrections Act, citizens sit
with criminal justice professionals to plan
programs, to see that procedures respond to citizen anxieties, to allocate
funds, and to receive progress reports.

Over half the states in this
country have some mechanism
for citizen participation built into
their community-based programs.
Community-Based Programs
Residential programs in particular require the involvement of those most directly affected. Such successful pioneers
as Bryan Riley of Massachusetts Half-way
Houses, Inc., have long recognized the
value of community involvement. Riley
always walks the neighborhood with the
local legislator before opening a new
home. Each of his halfway houses has a
community committee drawn from the
neighborhood and chaired by one of his
board members. The neighbors then
have a chance to see how the program
operates, how supervision works, and to
voice any concerns and, incidentally, to
add to the quality of offenders' lives by
prOViding access to community resources
and an occasional ticket to a sports
event!
Legislators, too, are recognizing this
need, and are bUilding a role for the
public into statutes. In Illinois, for example, Citizens' Advisory Councils are reqUired in order to "strengthen and assist" in the operation of each community
correctional center (and parole district).
The goals of the Council are listed as
follows:
I. pursue ways and means of commu-

nicating the Community Services Division's mission to the public;
2. assist in the identification of public
service projects;
3. develop resources which will benefit inmates/releasees;
4. assist in the development of private
business enterprises to provide employment to the inmates/releasees;
5. advise the Chief Administrative Officer on policies which affect the community; and
6. provide other advice and input
which will enhance the Community Services Division's position in the
community.
Florida has regional advisory councils
for its residential programs "to communicate the ideas of the community and
the local criminal justice system to the
regional administration of the Department of Corrections ... [To] provide a
forum for receiving citizen complaints
and holding hearings on general problems relating to the Department." Ohio,
Idaho, Iowa, Pennsylvania, Montana and
Texas also require boards for each of
their community-based centers. Minnesota, Oregon, Kansas, Tennessee and
other states which have a Community
Corrections Act involve citizens on their
county criminal justice planning boards.
California, Massachusetts, Missouri and
New jersey have advisory boards to
many of their county or district probation offices, although not statutorily required. And this is not an exhaustive list.
In fact, over half the states in this country have some mechanism for citizen
participation built into their communitybased programs.

There is no better tool for public
education than to allow small
groups to see, firsthand, the hard
facts and implications of
overcrowding.
Citizen Advisory Boards
A compelling case can also be made
for the public's role in prisons. There is
no better tool for public education than
to allow small groups to see, firsthand,
the hard facts and implications of overcrowding; to understand the makeup of
the inmate population so they understand that some categories of offenders
could serve their time outside the walls;
to review the criteria for early release,
and then convey this information to
their peers in the community.
Citizen advisory boards are an effective and popular way to provide this
role. While advisory boards used to be
decorative objects, today's models are
taken seriously and deal with substantive

issues. Board members, offered the
chance to see programs at work and to
suggest changes, can then serve as educators of their peers whenever the need
arises, and testify to an agency's concern
for, and responsiveness to, the citizens •
of the area.
.~
Benefits derived from citizen boards i,i~
can go beyond the development of pub,,·
lic support. Board members can signifj::' ,
cantly improve services by providing f't.
access to local resources, finding VOIU0~
teers for programs, and, above all, bj'Jr
serving as advocates for resources CVld
change. Citizen advisory boards to prisons can also assure that improvements
mandated by court order remain in place
once the court relinqUishes jurisdiction.
A board in Massachusetts has been written into a consent agreement for just
that purpose.
Many an administrator has used its citizen board to good advantage. Kevin Lucey, chief probation officer of a rural district court in Massachusetts, was having
trouble gaining the attention of the
regional offices of two state agencies
whose cooperation he desperately
needed. With the encouragement of his
commissioner and local judge, he formed
a citizen advisory committee. Members
of the committee quickly carried the issue to the executive branch, a move
which assured the eventual cooperation
of the two agencies.
To advocate a role for the public is
not to suggest that correctional administrators share their authority, responsibilities or their ultimate accountability. It is
Simply to recognize that local officials
and members of the community have a
valid and constructive role to play in the
success of community-based corrections,
and particularly in the residential programs that most affect their daily lives.
Such a role, well-defined and understood, will not interfere with management needs, but will help the public
accept the programs, and feel a sense
of commitment to their success.
Creating a Dialogue With the
Public
Some officials have developed public
education programs. Others speak of
"marketing community corrections." But
public education and marketing are essentially one-way streets. By themselves,
they are not enough. In order to gain
acceptance from the public, there must
be dialogue and mutual responsiveness.
The public must have a chance to discuss, to digest, and then to discuss again
with those who can respond to their
concerns and suggestions. The delivery
of facts and figures, though important,
represents an intellectual response to
what is fundamentally an emotional issue.
Because the public is so woefully unin-

formed about corrections, it is vital to
provide a forum in which fears can be
openly expressed, validated and
addressed.
The recent presidential campaign
shows how destructive the public's lack
of knowledge can be. joel Barfoot knew
little of corrections before he became
chairman of Alabama's Board of Pardons
and Paroles a little over a year ago. He
worries about this lack of knowledge. "I
thought everybody should go to prison
before I got informed. Now I know
there are differe;,t types of criminals. I'm
a good Republi.c;An but I've got to tell
you-that Willie Horton thing has hurt
the whole of corrections across the
country. Not that he should have gotten
out, not that he should have gotten a
furlough, but it got all out of proportion
and hurt us all. People just aren't informed and so get taken in by something like [that]. It made everybody
think that everyone in prison was a
Willie Horton."
Citizen involvement is not a comfortable thought for many public officials.
Pictures of the '60s come to mindfrazzled administrators dealing with confrontational tactics and disorderly groups
occupying their offices. While this is not .
the model of the '80s, that may be hard
for some to believe.
NCCPAJ Promotes Public
Involvement
The National Center for Citizen
Participation in the Administration of
justice was formed a couple of years
ago in order to help court and correctional administrators develop constructive and mutually beneficial channels of
communication with the public, primarily
through adVisory boards. Drawing on
successful models across the country, we .
work with administrators on strategies
where no public involvement exists, and
train and troubleshoot where boards or
other public mechanisms exist but are
not working very well.
We worry about the public's lack of
knowledge about corrections at a time
when public understanding of corrections is so badly needed. We worry
about the lack of a constituency for
court and correctional administrators to
speak up on their behalf,.whether to the
media, to legislators or to neighbors;
whether it is to gain access to resources
or simply to explain an incident and put
it in perspective. Most other human service administrators have had such constituencies for some time--citizens to
whom they can turn when allies are
-continued on next page
'The National Center for Citizen Participation in
the Administration of Justice. 20 West Street, 4th
Floor, Boston, MA 02111.617/350-6150.

SUMMER 1989

13

-continued from previous page
needed, when money gets tight, when
changes need to be made or advances
need to be safeguarded.
Corrections has no comparable group,
although a handful of citizen criminal justice organizations and the boards that
many states have put in place provide
the potential. Board members can serve
as the catalyst, working with outside
groups and the public at large, to provide the support needed for the "middle
ground options," for the "tough, mean-

ingful punishment outside the walls"
which will allow the overcrowding crisis
in our prisons to subside.
Without public involvement, the
changes so badly needed may be difficult
to bring about and even more difficult "'
to sustain. II
~

FOR THE RECDR,P
II The National Sheriffs' Associati~
(NSA) has announced the formatiolllf

of the Center for Research and Policy
Development, Inc., to be based at its
Alexandria, Virginia headquarters.
The new subsidiary was established
in response to increasing demands for
research, model policy and procedures,
training and technical assistance, program
development and implementation, and
program and policy evaluation.
Currently, the NSA is funded by
the Bureau of justice Assistance to conduct research, develop policy, and conduct training ~d technical assistance in
. ,I

11111 II
judy Greenspan
A. Billy S. jones is the assistant director of education for the Sunnye Sherman
AIDS Education Project of WhitmanWalker Clinic in Washington, D.C. Billy,
an ex-prisoner, divides his busy schedule
between supervising the clinic's growing
street outreach AIDS education program
and conducting AIDS education/training
seminars for prisoners, correctional staff
and organizations around the country. I
was lucky to catch up with Billy for an interview after his return from the International Lesbian and Gay Health Conference
in San Francisco, and a training session at
the NIDA Addiction Research Center in
Florida.

Greenspan: How did you get involved with
AIDS education?
jones: I started doing AIDS work while
incarcerated at San Bruno in the San
Francisco Bay area. Prisoners, I knew,
were likely to have been involved in
some high-risk behavior. Working with
the medical department at San Bruno, I
soon realized that we should be doing
some seminars around these issues.
When I came out of prison and went to
work with the National Coalition of
Black Lesbians and Gays, I became very
interested in their prison project. More
and more inmates were writing in--talking about AIDS and HIV infection. A lot
of the letters were about how they
were treated--placed in isolation,
threats from other inmates and correctional officers.
In 1986, I went to work for Whitman-Walker Clinic in Washington, D.C.
to develop and coordinate a street outreach project. I am on probation until

judy Greenspan is the AIDS information
coordinator at the National Prison Project,
and contributes a regular column to the
NPP JOURNAL on AIDS.
14 SUMMER 1989

1991, and I feel a strong commitment to
provide service and sensitivity to persons who are incarcerated. I expanded
the outreach project to include not only
IV drug users, prostitutes, and male hustlers, but also prisoners.

Greenspan: What kind
you developed?

of programs have

jones: Comprehensive AIDS education,
prevention and intervention programs
that would target everyone, regardless
of how they went through the system:
those in detention centers, the pre-release and half-way house programs, and
those on probation as well as in drug
treatment programs. The frustration
here boils down to what people regard
as good education. just shOWing a video
or giving a brochure is not a comprehensive education program. What we
really need is time for people to work
through their anxiety, fears, and phobias
about AIDS. Often anxiety centers on
groups of people, specifically about gays,
lesbians or cross-dressers. In some cases,
prostitutes or IV drug users. Many times
the educational process cannot begin until the consciousness has been raiseduntil sensitivity and compassion have
been reached.
I don't like the video, "AIDS, A
Bad Way to Die," except perhaps as a
last resort for persons who are insisting
on continuing that risk behavior. I am
not convinced that it is effective in
bringing about attitudinal and behavioral
changes.

Greenspan: At whom do you aim your educational programs?
jones: From the very beginning, the Sunnye Sherman AIDS Education Project of
Whitman-Walker Clinic felt that whatever education efforts we did in prisons
should be targeted at all inmates, regardless of HIV status. We have no way

of knowing who is positive and who is
not. The powers-that-be tend to direct
educational seminars to the gay unit or
those who identify themselves as gay or
to persons who they know to be HIVpositive or IV drug users. When going
into any system, we simply insist that
the seminars are to be for everyone.
We also insist on conducting seminars for staff as well. Correctional officers are encouraged to express their
concerns and fears. We also try to get'
them to understand their at-risk behavior when they are off duty.
Unfortunately, our comprehensive
education effort has been sabotaged because of lack of funding. We were proud
of the fact that we had an education
program in five counties in Virginia and
two in Maryland, and in the District of
Columbia. We have not been able to
keep the staff needed for that effort.
While some counties have taken on the
educational effort themselves, often the
"educational efforts" consist of just
shOWing a video and haVing some literature. Despite the lack of funding, we
have continued our one-on-one
counseling.

Greenspan: What kind of discrimination do
you find faces HIV-positive inmates?
jones: For example, often when the inmate's attorney finds out that that person is infected, the attorney may not go
to visit them until the last minute. Marshals won't bring them into courtthey're afraid they'll contaminate the
court. Once the system finds out someone is infected, it goes on their docket
and follows them everywhere. No confidentiality. It will say, "AIDS, blood contaminated." just trying to get through
the criminal justice system for an HIVinfected inmate is difficult. When a person's antibody status is known, doors of
opportunity close. II

i'·
II

j

I
I

I

such diverse areas as stress management,
clandestine laboratory investigations, and
the management of persons with HIV,
the virus that causes AIDS.
Under the latter project, model
AIDS-related policies and training curricula are being developed for corrections
and law enforcement, as well as for juvenile justice, juvenile/adult probation/parole, drug treatment, residential placement, victim services, pretrial services,
and foster placement agencies.

•
"Punishment or Payback? Emerging
Perspectives on Criminal Justice Reform
for the 1990s" will be the subject of a
conference sponsored by the National
Community Service Sentencing Association (~~SSA), the America~ R~stitutio,\
Association (ARA), and Restitution Edu1_
cation Specialized Training and Technic~;;
Association (RESTTA). The conferenceif
is scheduled for October 31-Novembef '
3, 1989 in San Antonio, Texas. For rRore
information, contact Dottie Brennan/"408/995-6555.
ill

•
Presos YOficia/es, £1 Sida YLas Carce/es: La Realidad, a Spanish version of
the NPP booklet, AIDS & Prisons: The
Facts is now available along with an updated edition of the English version. Single copies of the booklets are available
free of charge, and bulk orders are available as follows: 100 copies, $25; 500
copies, $100; 1,000 copies, $150. Direct
orders and inquiries to Judy Greenspan,
National Prison Project, 1616 P Street,
NW, Suite 340, Washington, D.C.
20036, 202133'10500.

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

I

- - L - Project JOURNAL,

$25/yr. $2Iyr. to prisoners.

Bibliography of Women in
Prison Issues. A bibliography

I
. The Prisoners Assistance
- - L - 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 organizations and sources of assistance including legal, library,
medical, educational, employment and financial aid. 8th Edition, published December
1988. Paperback, $25 prepaid
from NPP.

I
Offender Rights Utigation:
- - L - Historical and Future Developments. A book chapter
v"".""

""/,,,

~~
-,@e-.

.~~
'~

;~

~
QTY. COST

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

I
The Jail Litigation Status
- L - Report gives a state-by-state
listing of cases involving jail
conditions in both federal and
~
state courts. The Report covlIl""" . 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~~ ~~ :~r~:~~~:~~~~si~~ud""

practical suggestions for jail litigation. It includes chapters on
legal analysis, the use of expert witnesses, c1C1$S actions,
attorneys' fees, enforcement.
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case citations and correctional standards. Ist Edition, February

AIDS, educational materials,
medical and legal articles, and
1:,ii: recent AIDS studies. 31 pages.
, $5 prepaid from NPP.

I
AIDS in Prisons: The Facts
- L - for Inmates and Officers is

A Primer For Jail Litigators is a detailed manual with

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.

Fill out and send with check payable to

1984. 180 pages, paperback
$15 prepaid from NPP.

\

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

*"

~. ::d~=~~~~~t:e~~~~~~~~'e,le-

...

~~ gal rights and responsibilities.

~
'.
'.

QTY. COST

Sample copies free. Bulk orders: 100 copies/$25. 500 copies/$ I00. 1,000 copies/$150
prepaid.

NAME

_

ADDRESS

_

CITY. STATE. ZIP

_

SUMMER 1989

15

1lililiElIi
~,

The following are major developments in the Prison Project's litigation
program since March I, 1989. Further
details of any of the listed cases may be
obtained by writing the Project.
Abbott v. Thornburgh-This national
class action suit challenges the literature
policies of the Federal Bureau of Prisons.
In a May 15 decision, the Supreme
Court reversed a favorable circuit court
decision and held that federal prison officials have wide discretion in censoring
publications received by prisoners.
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. Parties
reached a comprehensive settlement
which was approved by the court on
March 31, mandating sweeping reforms
in the operation of the prison and the
addition of numerous professional staff
to carry out those reforms, primarily in
the areas of medical and mental health
care.
Bates v. Lynn-This new case, filed in
January 1989, deals with access to the
courts for all death row prisoners in
Louisiana. The court stayed our motions
on class certification and discovery. By
judicial order, we prepared a settlement
proposal for the defendants, and a status
conference was held June 8.
Duran v. Carruthers-This is a totality of conditions case against the entire
New Mexico state prison system. Defendants filed appeals from two recent
fee awards. The appeals were argued in

.

the 10th Circuit on May 9, 1989, in cori\.
junction with the state's appeal on their
motion to modify or vacate the consent
decree entered into in 1980.

..·':1

Harris v. Thigpen-This case cha~
lenges the Alabama Department oLCorrections' program to test all prisoners
for HIV antibodies, and to segregate
those who test HIV-positive. The first
phase of trial was held March 27 through
30 in Decatur, and the second phase
commenced on June 12 in Montgomery.
Knop v. Johnson-This is a statewide
Michigan prison conditions case. A hearing on the fees issues was held on March
9 and 10. On April 5, 1989, the court
awarded fees of $1,484,006 to plaintiffs'
attorneys. Post-judgment settlement discussions have not yet produced any result and appeals have been filed in the
6th Circuit.
Maryland Jails: Hendricks v. Welch,
Macer v. DiNisio, Dotson v. Satterfield-These cases, filed by the Prison
Project and the Maryland ACLU, challenge conditions and practices in three
jails on Maryland's Eastern Shore. In Dotson, the old jail was permanently closed
on March I, 1989 and prisoners were
moved into temporary quarters in new
portable living units.
Murray v. Giarratano-This case,
filed by a former named plaintiff in the
Mecklenburg Correctional Center case,
seeks the appointment of counsel in
state post-conviction proceedings to
guarantee access to court for prisoners
on death row in Virginia. We filed an
amicus brief in the Supreme Court urg-

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

Change is what people fear most -Fedor M. Dostoevski
16

SUMMER 1989

ing affirmance of a favorable court of appeals decision. On June 23, the Court,
overturning the district and circuit court
decisions, and in a split plurality decision,
held that Virginia did not have to appoint counsel.

,

Palmigiano yj DiPrete-This case
challenges con'aitions in the Rhode Island
state prison system. Defendants failed to
meet the February 20 deadline for compliance with population caps, and we renewed our request for sanctions at a
March I3 evidentiary hearing. In a decision on April 6, the court found the
Governor and Director of Corrections
still in contempt and ordered them to
pay fines of $164,250 to be applied to a
bail fund. Defendants obtained a temporary stay, which we opposed, from the
Ist Circuit. Parties filed appeal briefs in
May and argument was held in the court
of appeals on June 9, 1989, and on June
19, the court of appeals vacated the
temporary stay of the April 6 order.
Spear v. Waihee-This case challenges
conditions at two Hawaii prisons. In response to a highly critical legislative audit of the Department of Corrections,
the Hawaii Senate adopted a resolution
requesting that the Governor appoint a
special master to oversee the department. We interviewed candidates for
the post and made recommendations to
the Senate Corrections Committee. •
NOTICE: Stay current in the law! Beginning in the next issue, the JOURNAL will
publish Case Law REPORT, an up-to-date
summary of the latest in prison litigation.

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