INSIDE ...
AIDS in Prison
Self-help groups form inside the
walls
p. 14

Highlights
Recent NPP litigation

ISSN 0748-2655

NUMBER 21, FALL 1989

Directs Bail Fund to Be Provided

Court Fines Rhode· Island
Officials Over Non-Compliance
Mark Lopez
Of all the prisons and jails throughout
the country straining under the impact
of the move toward longer and/or mandatory sentencing, tiny Rhode Island's
unified prison and jail system is feeling
the heat the most. In 1988, its incarceration rate grew by an unprecedented
34%, nearly double the national average.
No relief appears in sight for 1989
either, as growth is expected to exceed
40%, according to the Bureau of justice
Statistics. Prison officials are at wit's end
trying to find bedspace and provide services for their bloated population. Under
pressures from the Department of Corrections, the public and the court,
Rhode Island's elected officials promise
relief, yet seem paralyzed when it comes
time' to deliver. Whatever headaches this
causes Rhode Island officials, however, it
cannot compare to the inhumanity suffered by 500 or so pretrial detainees
who are forced to live in facilities and
under conditions designed for one-third
as many people. On April 6, 1989, the
matter came to a head.
Senior U.S. District judge Raymond j.
Pettine held that Rhode Island officials
had failed to purge themselves of a previously entered contempt order' by
bringing their pretrial facility, the Intake
Service Center (ISq, into compliance
with the court's longstanding orders limiting its population. Substantial fines
were imposed, and the defendants were

Only an order holding [Rhode
Island] officials in contempt
would spur them out of the
bureaucratic quicksand in
which they had become mired..

p. 16

There comes a time, however, when
flexibility must give way to enforcement
lest one party's failure to comply undermines the viability of the agreement
which the parties reached and the court
approved as a workable solution to the
problems presented. 3
The district court's decision to adjudge Rhode Island officials in contempt
was necessary to head off a "societal disruption" of serious magnitude, according
to judge Pettine. Only an order holding
these officials in contempt would spur
them out of the bureaucratic qUicksand
in which they had become mired, and
force them to take the action necessary
to meet the standards established in the
consent decree. 4
On August 17, 1989, in a per curiam
opinion, the First Circuit affirmed judge
Pettine's order in all respects for the
reasons set out in the district court's
two comprehensive opinions, supra. s

History of the Case

Mark Lopez is a staff attorney with the
National Prison' Project

Anyone remotely familiar with the hisdirected to use the accumulated monies
tory of the Rhode Island Adult Correcto prOVide bail for indigent low-risk pre- tional Institutions (ACI) knows that until
trial detainees, thereby effecting an imthe litigation of the late I970s it ranked
mediate reduction in the population at
.as one of this country's most antiquated
ISC. 2
and poorly managed prison systems. By
The state immediately appealed and
most accounts, prison officials had lost
was granted a stay by the First Circuit
control as violence and squalor beset the
Court of Appeals. On the appellate
prison. Nowhere was the impact felt
court's own motion, the appeal was exmore harshly than on the lives of pre-.
pedited and argument was heard in early trial detainees:
june. The stay was dissolved by the
The conclusion is inescapable that precourt of appeals shortly after the appeal
trial inmates are not provided minimally
was argued. The state raised the usual
adequate protection against assault, that
federalism complaints about the scope
they are exposed to punishment even
and intrusiveness of the relief granted by
worse than that endured by other inthe district court. In the ordinary case,
mates, and that they are incarcerated
perhaps they might have cause to comunder conditions far harsher than anyplain. But, no one who carefully studies
thing necessary to guarantee their presthe long history of this case can fail to
ence at trial.
.
see how fleXibly the district court has
Palmigiano
v.
Garrahy,
443 F.Supp.
treated its orders, precisely because it
956, 971 (D.R.I. 1977).
has the utmost respect for the varying
To alleviate the fear and suffering of
competencies of different branches of
pretrial detainees, the 1977 order regovernment as well as the differing
quired the state to remove all such perneeds and interests of the parties. For
-continued on next page
these reasons, it has repeatedly modified
and amended the orders at issue in response to the state's pleas for fleXibility.
3700 F.Supp. at 1193.

'Polm;g;ono v. Gorrohy, 700 F.Supp. 1180 (D.R.1.
1988).

2Polm;g;ono v. Gorrohy. 710 F.Supp. 875 (D.R.1.
1989).

. .

..

•

4/d.
SPolm;g;ono v. O;Prete, No. 89-1 +40 (I st Cir.
8117/89).

•

•

•

-continued from front page
sons from the existing Maximum Security Facility within three months and to
house them separately thereafter, with
no subsequent intermingling or contact
between detainees and sentenced
prisoners.

The Emergence of Overcrowding
at the ISC
Despite the explicit terms of the 1977
Order and the three-month timetable
that it announced, it was not until five
years later, in July 1982, that the state
succeeded in achieving full compliance
with the order's requirements for the
housing of pretrial detainees. With the
opening of the ISC in 1982, however,
detainees were at last no longer intermingled with sentenced offenders and
the constitutionally required physical
conditions imposed by the 1977 order
were momentarily met. Nevertheless,
old problems persisted and new problems loomed. In a "final report" on
compliance with the 1977 order issued
on October 20, 1983, the Special Master
appointed by the court to monitor the
ACI noted the overcrowding in the
newly opened facility. On the day it was
first occupied, one hundred of the ISC's
168 single occupancy cells were already
fitted with double bunks, and the facility's population consistently topped 200.
At the time of the Special Master's report, nearly 250 detainees were being
held in the ISC, and all concerned conceded that the magnitude of the overcrowding problem would only continue
to worsen.

[The state] fell into a
frustrating pattern of doing too
little too late.
Despite these early indications that
overcrowding would grow dramatically
worse, the state repeatedly failed to try
to solve the problem. Instead, it fell into
a frustrating pattern of doing too little
too late, and only after prodding by the
district court's many subsequent orders
designed to ameliorate the devastating
impact of overcrowding at the ISC. In
1985, for example, the court held an evidentiary hearing to examine the overcrowding crisis at the ISC and its impact
on the basic conditions of confinement
at the facility. The evidence adduced at
the hearing painted a disturbing portrait
of life inside the overstuffed facility.6
The court's frustration with the
state's intransigence was unmistakenly
·Palmigiano v. Garrahy. 639 F.Supp. 244 (D.R.1.
1986).

2

FALL 1989

It.
Senior U.S District judge Raymond j. Pettine
presided over the Palmigiano case from 1976,
when it was first fi'ed, until /989. He repeatedly urged state officials to remedy the hazardous overcrowding in Rhode Island's prisons.

"I have cajoled and waited as
though for Godot"-Judge
Raymond j. Pettine
expressed in its order growing out of
that hearing and imposing a 168-person
limit on the number of detainees in the
ISC:

The record shows that for nine years
this Court has employed all the artifices
it could conceive to have the defendants
cure the many constitutional violations it
found. I have been imperious, didactic,
and supplicatory; I have cajoled and
waited as though for Godot I have ever
been reluctant to interfere with the operation of the prison. However, the pattern is always the same: without monitoring, prison officials permitted the
kitchen to get into a deplorable state
. .. they failed to prOVide adequate medical staff for an increase in population of
which they have been aware for years;
indeed, repeated warnings from the Special Master have been in vain . . . even
in the areas that could easily have been .
corrected, nothing has been done ...
the veritable fortune that has been
poured into that institution will all be for
naught if positive firm steps are not immediately invoked.
The overcrowding must be confronted
before it becomes uncontrollable. A delay under the present conditions can
give rise to problems of staggering
magnitude. 7 Current Overcrowding at ISC
Today, 12 years after the original order,
years after overcrowding was first identified as critical at the ISC, and more
'Id. at 258; the cap was later increased to 250 persons by agreement of the parties.

than three years after the 1986 reaffirmation of the court's entire course of
dealing in this -case, Rhode Island officials
are still frozen in place, unable or unwilling to generate an effective response.
The overcrowding at the ISC in recent months is more serious than it was
in December 1985, when the court
heard the testimony which resulted in its
May 12, 1986 Opinion and Order. On
December I, 1985, the population was
289, while on June 12, 1988, the population went up to 394. On February 20,
1989, the most recent deadline imposed
by the court, it still hovered at 390, and
on March 29, 1989, just days before the
court sanctioned the state, the population stood at 473. Since that time it has
housed an average population of 500 or
more. Thus, the present population at
ISC is three times the design rated capacity of 168, and double the population
ceiling of 250 agreed to by the parties.

1988 and 1989 Orders of Contempt
Confronted by the rising population, the
plaintiffs moved the court to adjudge the
defendants, the Governor of Rhode Island, and the director of the Rhode Island State Department of Corrections,
to be in civil contempt of three standing
orders of the court governing the housing of pretrial detainees at the ISC.
Plaintiffs' essential complaint was that
the Rhode Island officials were grossly
exceeding the population limit of 250.
As a coercive sanction, the plaintiffs
sought the imposition of fines and the
establishment of a bail fund, using these
funds to provide bond for the hundreds
of low-bail pretrial detainees who were
choking the system.
111

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 foundation·
funded project 0( the ACLU Foundation which seeb to strengthen
and protect the rights 0( adult and juvenile offende'" to improve
ovenJl conditions in correctKxlal facilities by using existing administrative. legislative and judicial channels; and to develop a1.
ternatives to incarceration.
The reprinting of jOUfWAL material is encou"lled with the
stipulation that the National Prison Project jOUfWAL be credited
with the reprint, and that a copy of the reprint be sent fO the
editor.
The jOUfWAL is scheduled for publication quarterly by !he
National Prison Project. Materials and suggestions are welcome.
The National Prison Project jOUfWAL is designed by James

True. Inc.

1

The recreation area for the A block at the Adult Correctional Institution in Rhode Island also contains beds for prisoners because of the severe
overcrowding.

In support of its position, plaintiffs
were able to point to the numerous
cases in which federal courts. in recent .
years, had not hesitated to exert the
power of contempt to coerce recalcitrant jail and prison officials to comply
with overcrowding orders. These cases
are testaments to the severe overcrowding crisis in this country. and are
at the same time evidence that the limits
of judicial tolerance have been reached. 8
The defendants countered that the
court should stay its hand because compliance with the population orders was
"Inmates of Allegheny County jail v. Wecht, 874 F.2d
147 (3rd Cir. 1989); Twelve john Does v. Distria of
Columbio, 855 F.2d 874 (D.C. Cir. 1988); Badgley
v. Santacroce, 800 F.2d 33 (2nd Cir. 1986); Morales
Feliciano v. Hernandez-Colon, 697 F.Supp. 26
(D.P.R. 1987); Albro v. Onondaga County, N.Y., 681
F.Supp. 991 (N.D.N.Y. 1988); Tate v. Frey, 673
F.Supp. 880 rN.D. Ky. 1987); United States v. State
of Michigan, 680 F.Supp. 928,1047·1054 rN.D.
Mich. 1987) (bench opinion of May 22 and May 28,
holding defendants in contempt); jackson v. Whitman, 642 F.Supp. 816 (D.La. 1986); Ruiz v. McCotter, 661 F.Supp. 1/2 (S.D. Tex. 1986); Toussaint
v. McCarthy, 597 F.Supp. 1427 (N.D. Ca. 1984);
Mobile County jail Inmates v. Purvis, 581 F.Supp. 222
(S.D. Ala. 1984); Miller v. Carson, 550 F.Supp. 543
(M.D. Fla. 1982).

The state completely
neglected to use less
burdensome measures ...
to alleviate overcrowding.
impossible given the unprecedented
growth caused by stricter bail and sentencing laws and the failure of the legislature to create new bedspace.
The Court's Response
While it is true that a finding of civil
contempt can be deflected by a showing
that compliance with the court's order
is factually impossible,9 the record in this'
case belies the state's claim. The evidence showed that Rhode Island officials
failed to achieve substantial and diligent
compliance with the district court's orders. For years Rhode Island had been
'U.S. v. Rylander, 460 U.S. 752, 757 (1983). If the
party sought to be held in contempt is literally un·
able to comply because compliance is not presently
within his power, the attempt at coercion embodied in a finding of contempt is meaningless. Shillitani v. U.S., 384 U.S. 364, 371 (1966).

aware of recurrent overcrowding at ISC.
and had not taken steps to eradicate the
problem. Not only had the state failed
to create sorely needed new space in
spite of its already swollen population
and projections for dramatic population
increases, it completely neglected to use
less burdensome measures available to it
to alleviate overcrowding. Most notably,
no pretrial diversion services are available to Rhode Island courts. These services would significantly reduce the number of detainees without creating a risk
to the public.
As a result of the state's inertia, there
are large numbers of persons detained
on bonds so insignificant that it seriously
calls into question the justification for
their confinement, except that they are
too poor to make bail. As hoped by the
plaintiffs, the district court's response to
the state's request for yet another
chance was short, but to the point:
Given this long history of delay, it is disingenuous for defendants to continue to
plead that the problem has grown too
overwhelming to deal with after systematically refusing to address this visibly
brewing crisis for so long. Such a blatant
--continued on next page
FALL 1989

3

--continued from previous page

. attempt to avoid responsibility for their
own patently apathetic behavior will not,
at this late date, rescue them from its
consequences. '0
The district court's conclusion is directly supported by the holdings of
three recent court of appeals decisions,
applying the test of impossibility to the
conduct of state officials in prison overcrowding cases. These courts have been
particularly strict in their interpretations
of this defense. The Third Circuit interpreted the defense of impossibility to
mean "physical impossibility beyond the
control of the alleged contemnor."11
"[T]he suggestion that it was physically
impossible for the Allegheny County to
obey the order in the respects in which
they were held to be in contempt is
sophistical. The county officials simply
chose to take no steps to provide the
warden and his staff the wherewithal to
comply."12
Similarly, the Second Circuit has held
that the impossibility defense is not
available where county defendants' compliance is hindered by political difficulties,
rather than physical impossibilities, in alleviating jail overcrowding. Il The court
held that the defendant county officials
could comply with a court-ordered cap
simply by refusing to accept more prisoners, and rejected the officials' argument that a refusal to accept new prisoners might place them in contempt of
sentencing state courts. The court stated
that the federal court's order regarding
prison population would be entitled to
obedience under the Supremacy Clause,
and that if a state court attempted to
hold the county in contempt, the federal
judgment "would provide a complete
defense." The court found this to be
true even though the judgment had been
entered by consent.'4
In concert with the Second Circuit, in
Twelve John Does v. District of Columbia,'s
the D.C. Circuit held that it would be
inappropriate to allow prison officials to
escape their obligations to reduce the
prison population by pleading impossibility. The court brushed aside the defendants' claim that significant increases in
the numbers of arrests and inmates precluded it from staying within the population limits. It also showed no sympathy
for the claim that political difficulties
prevented the construction of new prisons. In the end, the court held that conditions such as these do not establish a
. '''700 F.Supp. at 1197.
"Inmates of Allegheny County Jail v. Wecht, 874
F.2d at IS2.

12ld.
'3See Badgley v. Santacroce, 800 F.2d at 36·38.

'·'d. at 37·38.
"855 F.2d 874.

4 FALL 1989

125 persons have been
released under the [Rhode
Island] bail release program.

lack of power to alleviate the overcrowding, even if that means release of
or refusal to accept prisoners. 16 judge
Pettine found no basis for departing
from this persuasive line of authority.17

The Sanctions
There is no question the federal courts
are authorized to impose heavy fines for
failure to comply with prison overcrowding orders,18 and in the ordinary
case, the prospect of being confronted
with heavy fines might compel compliance with a court order imposing a population ceiling. 19 This is not an ordinary
case, however, and the history and record of this litigation indicates that fines
alone would not suffice to reduce the
population. Rhode Island officials have
been admonished and threatened with
heavy fines before, and have chosen to
ignore the warnings. For this reason, the
district court directed that any fines collected from the state officials as a result
of further dilatory conduct in reducing
"Id. at 877.
17Rhode Island's attempt to introduce evidence of
good faith, diligence and Eighth. Amendment con·
siderations by arguing that conditions were constitutional despite the overcrowding proved equally
unavailing. The district court correctly opined that
good faith is not a defense to civil contempt, McComb v. Jacksonville Paper Co., 336 U.S. 187, 191
(1949), and that contempt proceedings do not
open to reconsideration the legal or factual basis
of the order alleged to have been disobeyed and
thus become a retrial of the original controversy.
700 F.Supp. at 1195, citing Maggio v. Zeitz, 333
U.S. 56, 69 (1949). Prison overcrowding cases supporting this propoSition include Twelve John Does v.
District of Columbia, 855 F.2d at 878, n.30; Badgley
v. Yarelas, 729 F.2d 894, 899 (1984); Ruiz v. McCotter, 661 F.Supp at 125.
'·See Inmates of Allegheny County Jail, 874 F.2d at
152 ($25,000 fine); Twelve john Does, 8S5 F.2d at
875-876 (imposition of population cap and fine of
$2S0 per day for each dorm at which the limit was
surpassed); Badgley, 800 F.2d 33 (fine of not less
than $5,000 for each inmate admitted over population cap).
"Numerous district court decisions have done the
same. See cases cited n.8, supra.

the population be set aside to finance a
bail fund to be used for pretrial detainees under certain terms and conditions
to be developed later. 2o
The Supreme Court has recently recognized the authority of a district court
to utilize fines collected under a contempt sanction to assure compliance
with the court's orders. In Local 28 of
Sheet Metal Workers v. ££O.C.,2' the
Court upheld the district court's imposition of contempt sanctions, including a
fine to be used in a fund designed to increase nonwhite membership in a union
apprenticeship program. The Court
noted that the district court had "carefully considered" the proper standard in
exercising its broad remedial powers
and imposing the fines, and that the district court had properly concluded "that
the Fund was necessary to secure [defendantsl compliance with its earlier
orders."h
Even before Local 28 was decided,
federal courts have ordered the payment
of funds into a bail fund to relieve overcrowding of pretrial detainees. For instance, in Mobile County Jail Inmates v.
Purvis,23 an Alabama federal district court
ordered the county officials to pay into
the court accumulated contempt fines,
and the court used the fines to provide
fees to pay bail bonds for low-bond pretrial detainees. The court noted that, despite its reluctance to involve itself in
such matters, it "must find some way to
achieve compliance with its orders. Although the court has given the defendants over two years in which to find and
implement the solution, they remain far
from compliance."24 Significantly, in deciding to establish the. bail fund with accumulated fines, the court relied on U.S.
District judge Morris Lasker's order in
the Rikers' Island case, Benjamin v. Malcolm,2S in which he ordered $2,000,000
in accumulated fines to be used to pay
for certain low-bond pretrial detainees
not charged with violent crimes.
The success of this approach is perhaps no more evident than in Philadelphia where city officials have been required to prOVide bail for the larrest
numbers of low-bond detainees? The
2"710 F.Supp. at 887.
2'478 U.S. 421,106 S.Ct. 3019 (1986).
221d.
23
581 F.Supp. 222 (S.D. Ala. 1984).
24/d. at 225.
liNo. 75 Civ. 3073 (S.D. N.Y. 1983).
USee also, Harris v. Perns/ey, No. 82-1847 (ED. Pa.
6/6/88) (instructing Philadelphia officials to provide

BailCARE screening process in place
there is comprehensive. All inmates released through the program have to satisfy requirements relating to lack of serious criminal record. references. verified
residence and surety. If the bailee does
not comply with the terms of release.
such as drug. alcohol or employment
counseling. bail is revoked and the inmate is returned to prison pending trial.
The BailCARE program has been working extremely well. As of January 31.
1989. 22.059 cases were reviewed and
1.321 inmates were released by BailCARE. The program has placed 1.288 inmates in treatment. training and education programs. The rate of appearance in
court of those released through the program through December '31. 1988 was
88%. Upon appearance in court, only
39% of BailCARE cases have resulted in
conviction. 27
The evidence is not all in yet in
Rhode Island where 125 persons have
been released under the bail release
program. The experience in Philadelphia,
however. is compelling evidence of how
safe and effective this sanction is for
achieving compliance with court-ordered
population limits. We are hopeful that
this success can be repeated in Rhode
Island. 28

Conclusion
During the long and tortuous history of
this case. Rhode Island officials have
done nothing to remedy constitutional
violations except when they were
coerced into doing something by the
court. Left to their own devices, they
have exceeded the design capacity of
168 at the ISC, they have exceeded the
cap of 250 that they agreed to, they
have gone to 300, 350, 400, 450, and
500, and, unless reigned in, they will
surely go above 600 in the foreseeable
. future. They will continue to jam human
bodies into this facility until, like the overstuffed suitcase, it bursts at the hinges.
Judge Pettine unquestionably acted correctly in an effort to enforce his order
and to prevent the situation from ending
in tragedy. •

funds sufficient to obtain the release of low·bond
pretrial detainees).
27Harris v. Per.'1s/ey. No. 82-1847 (available on Westlaw: WL 16269) (order expanding pool of eligible
detainees).
28Similar court-ordered bail programs to alleviate
overcrowding in county jails are also in place in
Puerto Rico and Newark. New Jersey. Morales Feliciano v. Hernandez Colon. No. 79-4 (PG) (D.P.R.
4/28/88); Essex County Jail Inmates v. Fauver, Civ.
No. 81-1945 (D.N.J. 5/10/89).

Electronic Monitoring:
Humane Alternative or Just
Another "Gizmo"?
Russ Immarigeon
"Opposition to the beepers has been
sparse. Civil libertarians seem split on
the issue. At a national ACLU convention, I took an unscientific, informal poll
among activists I met Though many
said beepers herald an Orwellian state •
of affairs, others argued that beepers
represent a humane alternative to institutional confinement Such ambivalence
is understandable. One can hardly second-guess the prisoner who would rather
surrender a modicum of privacy at home
than.1ose all privacy. At the same time,
though, beepers appear beneficent only
because our existing correctional system
is so horrible. Beepers can be justified
only because Americans have not embraced solutions to crime that go beyond
isolating criminals in metal cells."

Community supervision was
often seen as nothing more
than a slap on the wrist

program. Recently, an internal department of corrections management information paper found that probation officers did not perceive electronic
monitoring "to improve the level of supervision over the surveillance prOVided
by IPS in any meaningful way, since curfew checks routinely performed by IPS
officers was thought to be very effective
in keeping track of probationers' whereabouts."2 The report recommended that
electronic monitoring not be used as an
additional form of surveillance in IPS
-Keenen Peck, former chairperson,
cases.
Capital Area Chapter of the ACLU
Georgia has not yet decided to abanof Wisconsin I
don its use of electronic monitoring;
Nonetheless, the report is important beThe electronic monitoring of criminal of- cause it is the first empirical evidence
fenders, first proposed in the mid-I 960s
expressing dissatisfaction about the social
as a visionary method of keeping certain
policy of using electronic monitoring as a
offenders from being imprisoned. never
method of meeting particular prograril
really caught on until twenty years later
objectives. Previous research findings
when states such as Florida, Georgia,
placed heavy emphasis not on its approMichigan and Texas, mired deeply in sky- priateness or even its effectiveness but
rocketing prison populations, began using on the technical adequacy of monitoring
it to augment their intensive and comde.vices manufactured by various
vendors.
munity supervision programs.
Strong support still exists for elecGeorgia Report Calls for Halt in
tronic monitoring. At the federal level.
Use of Electronic Monitoring
for instance, the U.S. Sentencing Commission, the National Institute of Justice, .
In the 1980s, Georgia became a bellwether state for criminal justice reforms' the Federal Bureau of Prisons, and the
U.S. Parole Commission are all now enthrough its use of intensive supervision,
couraging, implementing. and/or evaluatboot camp, and other initiatives. Like
ing its use. Some states, like New Jersey
many Southern states, Georgia has aland Utah, remain committed to using it.
ways relied heavily on imprisonment.
Other states, such as Maine and New
However. overwhelming prison populaYork. are either considering using it, or
tions, the threat of court intervention,
have demonstration projects which they
several state study commissions, and an
are evaluating to see if further use is
innovative probation division have
turned Georgia into a state which every- warranted.
However, because of Georgia's leadone, including many Northern states, lisership in recent years in criminal justice
tens to when it acts.
Georgia started using electronic moni- innovations, this finding is likely to spark
discussion about the relative merits and
toring several years ago to augment its
further use of electronic monitoring
intensive probation supervision (IPS)
devices.
-<ontinued on next page
Russ Immarigeon, a regular contributor to
NPP JOURNAL, lives in Portland, Maine.
'Keenen Peck. "High-Tech House Arrest," The
Progressive. 2(7). Ouly 1988). p.26.

2Billie S. Irwin, "IPS with Electronic Monitoring
Option." (Atlanta, GA: Georgia Department of
Corrections), (April 1989). p.16.

FALL 1989

5

-continued from previous page

Electronic Monitoring Spreads
Across the Country
In the 1980s, criminal justice policymakers were forced to take a careful look at
how probation and parole agencies could
help alleviate prison overcrowding. In
the process. these agencies were frequently put on the defensive. Long ignored, community supervision was often
seen as nothing more than a slap on
the wrist and, right or wrong. efforts
were set in motion to strengthen (or
"toughen up") the image and services of
these agencies.
This "credibility crisis" prOVided fertile soil for electronic monitoring. According to the National Institute of justice., which has closely monitored its
growth, 21 states used electronic monitoring to supervise 826 offenders in
1987; by 1988, electronic monitoring
expanded to 33 states supervising 2,277
offenders, a three-fold increase from the
previous year. Florida and Michigan alone Electronic monitoring, in use in 33 states, always accompanies another form of correctional interaccount for nearly one-half of these
vention such as house arrest or intensive supervision.
electronically-monitored offenders.
Electronic monitoring is used under a
jail overcrowding was not reduced by
•
variety of arrangements: in federal, state,
the program; only three of 35 offenders
Researchers found that jail
county and private agencies; by pretrial,
were terminated from the program but
probation, and parole agencies; and by
none were violated for new crimes; disovercrowding was not reduced
adult as well as juvenile offenders. It is
trict
court judges reported they did not
by the [electronic monitoring]
never used as a sole sanction; instead, it
use home incarceration as an alternative
program.
always accompanies another form of corto jail; and, nevertheless, the program
rectional intervention (house arrest,
was not used as a method of "widening
home confinement, intensive supervision,
the net of social control."s
urine testing, etc.). Indeed, some observ- in Indiana and Oklahoma. However, no
Offenders participating in a house arers argue that electronic monitoring
evidence currently exists telling us if
rest/electronic monitoring program in
should be viewed as just a surveillance
electronic monitoring prevents or deters Clackamas County. Oregon were monitored, on average, for 33 days. They
technology. used to support another
crime, decreases or increases the seversanction, and not as an intermediate or
achieved a highly successful completion
ity of imposed sanctions. or affectS pubother type of sanction. In any case, oflic safety.
rate (90%) and only one of the ten profenders are monitored by either active
gram violators committed a new crime.
"The limits of electronic monitoring
or passive systems and, on average, they
The study found that electronically monare evident." a recent New York study
are supervised for a short period of time reported. "No EM system can give initored offenders were less likely to re(in 1988, $Iightly more than half of these formation on a defendant's activities
cidivate than work release offenders.
offenders were supervised for six weeks
within the house. No system can track
However, post-treatment periods of obor less). In most programs, offenders pay what the defendant is doing during the
servation were different for both groups
various fees or charges (up to $15 per
time he is scheduled to be at work. Fur- and nearly all of the re-arrests were for
day). In some programs, as many as half
petty crimes, Le., probation violations,
ther. a passive monitoring system allows
its clients fail to meet program requirethe real chance that a defendant may
misdemeanor disturbances, and traffic ofments; however, infractions of program
leave his home without authorization
fenses. The cost of electronic monitoring
and never be detected.....
rules, rather than new crimes, are the
fell in between regular probation and jail
most common reason for violation. 3
incarceration.6
A brief review of several other studIn short, these studies have no comies suggests some of the limits and conparison group and they rely on informatradictions of electronic monitoring.
Research Findings on Electronic
tion from a small number Qf cases inOffenders participating in a home inMonitoring
carceration/electronic
monitoring
proComprehensive research on electronic
'J. Robert Lilly. Richard A. Ball, and Jennifer
gram in Kenton County, Kentucky bemonitoring is scarce. A number of indiWright,
"Home Incarceration with Electronic
May
1985
and
December
1986
tween
vidual programs have conducted or
Monitoring in Kenyon County, Kentucky: An Evalwere primarily male, nonviolent propsponsored evaluation research concernuation," in Belinda R. McCarthy (ed.), Intermediate
erty offenders. Researchers found that
ing program implementation, and the
Punishments: Intensive Supervision, Home ConfineNational Institute of justice has funded
ment, and Electronic Monitoring, (Monsey, NY:
evaluations of electronic monitoring use
'Martin B. Mcindoe and Patrice Dlhopolsky. "SufCriminal Justice Press). (1987), pp.189-203.
3Annesley K. Schmidt, "Electronic Monitoring of
Offenders Increases." Nlj Reports, No. 212 Oanuary/February 1989). pp.2-S.

6

FALL 1989

folk County Probation Department Electronic
Monitoring Demonstration Grant: First Year Evaluation (1988-89)," (Yaphank. NY: Suffolk County
Probation Department), (1989).

"Annette Jolin. "Electronic Surveillance Program
Clackamas County Community Corrections Evaluation," (Oregon City, OR: Clackamas County Community Corrections). (1987).

volving low-risk offenders. Nevertheless,
research on electronic monitoring, like
the intervention itself, raises some curious questions. On the one hand, we still
know very little about the effects of
electronic monitoring. The Georgia
study mentioned earlier is perhaps the
only investigation which uses control
group data (data for this study were collected as part of a multi-state study of
intensive supervision programs being
conducted by The Rand Corporation). It
suggests direct supervision by probation
officers is potentially more effective than
supervision by technological device. This
fits well with what many practitioners
are saying. "Frankly stated," a probation
official in New York recently argued,
"the primary need for improving probation outcomes is to increase human resources--more officers, not just more
gizmos."
On the other hand, because electronic
monitoring seems to offend our sense of
civil liberties in a way that human forms
of intervention do not, questions (such
as the influence of electronic monitoring
on the families of offenders or even the
clarity of purpose of this form of supervision) are being raised simply because 'of
this discomfort. While this is true for
other interventions as well, observers
are asking questions which have not yet
been answered. Electronic monitoring is
being used in vastly different circumstances, anc;l sufficient comparative research
has not yet been done.

We don't know if electronic
monitoring is prodUcing more
problems than it may be
solving.
We do not yet know if electronic
monitoring is needed to change criminal
behavior. Moreover, we don't know if
electronic monitoring is producing more
problems than it may be solving. With
increased surveillance, more offender violations (not necessarily new crimes)
will naturally occur. Do we want to
have a system which measures success
by the number of immediate failures it
captures rather than the number of
long-term successes it produces~
The future role of electronic monitoring in the administration of criminal justice remains uncertain. What can be said
is that electronic monitoring has neither
reduced correctional crowding nor lessened U.S. emphasis on incapacitation.
At present, few clear statements of
policy exist concerning the use of elec·
tronic monitoring. The American Civil
Liberties Union, the American Correctional Association, and the American
Probation and Parole Association have

discussed or are working on policies but
none currently exist. The American Bar
Association is apparently the only national criminal justice organization to
have promulgated any standards for the
use of electronic monitoring. FollOWing
lines set by the ABA Standards for Criminal Justice. the ABA Section on Criminal
Justice cautiously posits that I) electronic monitoring be the least restrictive
alternative, 2) it not be reqUired as a
condition of probation, and 3) a person
should not be forced to pay for it.?

State-level advocacy organizations are
also wary about using electronic monitoring. The New York Campaign for
Common Sense in Criminal Justice, for
instance, suggests that electronic monitoring should not be used for pretrial
defendants, for offenders who would not
ordinarily receive an incarcerative sentence, or without "support services that
can help participating offenders develop
the skills and personal resources needed
to lead a crime-free Iife."s

American Bar Association Criminal Justice Section.
"Principles for the Use of Electronically Monitored
Home Confinement as a Criminal Sanction," (August 1988). pp.I-2.

"The Campaign for Common Sense in Criminal Justice can be reached at the Correctional Association of New York. 135 East 15th Street. New
York, NY 10003.2121254-5700,

7

-continued on next page

A Brief History of,. , J
. . ° M °t • . · , r "
.'EI
. ect r:()nlc.. om On~~;):;,~;;

Ralph Schwitzgebel's electronic,.'~.~.!
monit()ring device never caught on... '"
By thelllid.1980s, however, rapidly ;::;'c~
.'
. ' .. . .
\'»* 'rising'jail and prison populations,.:,'~:~
.' . The use of electronic mOlli't()~i~g;"';-loomed large in most jUrisdictions.;,.;)C'i
'for the supervision or surveillarlce .o~';
Criminal justice policies, partic~larlyt;:;;~
criminal offenders was first champi.. :.. . on volatile issues like prison use, have:)~~
. , onedin law and behavioral science ... .
centered on politically safe solutions.;;i~l
journals just more than twenty years ,
In. this con.text; elect
.. rooni.c.•. ·monit..or.ilig.. ·;~~J~.;
ago. Ralph K. Schwitzgebel, the bestbecame very attractive becauseState!;i:it~
known early advocate, saw these de· . . and loCal governments could stilf.· ;:F.tt~

.

~~~ngasren.:=:ti:::;::=.~~~.

~ O~~.~'= i~~i~.n~.i~. ~.ta~ 7y.•,: ':.•~.~

recent account of Schwitzgebel's views is
contained in Ralph Kirkland Gable. "Application of Personal Telemonitoring to Current Problems In Corrections," Journa/ of
Crimina/Justice, 1<4(2), (1986), pp.167-176.

'Information in this section comes from an article, "Electronic Monitor Turns Home Into Jail,"
The New York Times, (February 2, 19&4).

r.Th• e.·.'.• >•.:. .• :. . .•. • .•. .. r.e.
. s
th
. United States imprisoned people far::;2:",cost.i-."';· ...
" . :;"l::'~~1
too long, he argued, and imprison-:;,:.);:~,::· .•. In Apr,i1' 1983.' Judge J.ac.k love.'. Of . ·.:.:.:;..~~.:.'
ment was of no humanitarian and <:..-OC:::···.. the State District Court in Albuquer;;~~
dubious therapeutiC value.
'" ". . .. que, New Mexico, sentenced fourmi-:'2~
.. '. "Recent developments in elec-';
nor offenders to wear small elec:-::":::1\"""
. tronic technology," Schwitzgebel'.,
tronic transmitting devices instead.9
noted in mid· I968, "greatly increase'
going to jail ()r payingafine.Judg~t:r~
the possibility of deterring the com- • Love,felt<thatthe;:rnorito'[swould'
mission of certain types of offenses in, .'.• low(>rO,~tiorl 0fficers~c:i·~eep,t~c.,:
the community. When specific,of- ;,;.,,~;,;oL~;of(,I1d~'~er~by assur:ir,'l8
~en~ingbehaviors can be prevente~~~~H'i;;,:,," 'gp'(I'~'~;con:lI;il~JU~~:
It will no longer be necessary tO~:'.~~$R':.t;;:y;01_..
el.ove also was hesitant.
imprison an offender in order to'" ;' '~''',;a®'L'minor,:()ffendersand feltf
protect the community,'"
·;··:·:;'.:"".·m;:'th;j,~n.. ..deVices could help alleviate'
Schwitzgebel recognized, howevenJ;'tiail 'C~() .:ding/.'
. '.
that civil liberties and ~ther concerns .,.. Judge Love's experiment was genwere of great importance. In fact. he
erally accepted in Albuquerque, and it
argued that "effective administrative .'
received considerable 'local and na.
safeguards" should be developed be·
tional media coverage. But it also received some criticism. Judge William
fore electronic devices were widely
used in public, Monitoring, he sug·
Short, who presided over Albuquer•.
gested, might require joint approval
que's Metropolitan Court, told a
by criminal justice release agencies
reporter that the devices could be
applicable in some situations but
and independent civil liberties groups
or be permitted only when the proc·
shouldn't be used as an alternative to
ess of using these devices could show
jail. "If a person's crime and record.
"long-term therapeutic benefits."
are such that he should get probation," the judge said, "then he should
have an honest chance to prove to
'Ralph K. Schwitzgebel. "Electronic Altersociety that he can behave on his
natives to Imprisonment," Lex et Scientia,
own. If he deserves jail. he should go
5(3). Ouly-September 1968), p. 99. A more
to jail,"l.
'

FALL 1989

7

-<ontinued (rom previous page
Because electronic monitoring is generally used on a catch-as-catch-can basis.
there is little sense of how this method
of responding to criminal offenders affects the way we respond to criminal offending in general.
A recent British experiment. however. suggests that electronic monitoring
could potentially affect the way sentencers align criminal penalties. The experiment attempted to assess how the use
of electronic monitoring could .affect the
proportional use of imprisonment.

Electronic monitoring is
generally used on a catch-ascatch-can basis.
Participants in the study indicated that
electronic monitoring was more appropriate for accused offenders awaiting
trial than as a sentencing option and that
the use of electronic "tagging" would affect the comparative use of other sanctioning options. Specifically, the study
suggested that the use ~f fines (more
commonly used in the U.K.) would increase as a replacement for both probation and imprisonment when electronic
tagging was also used. Moreover, the
study found that such monitoring would
generally be used as an intermediate option between "lenient" release and "restrictive" incarceration. 9
The whole business of a hierarchy of
penalties is probably more widely accepted within the British context, however. The British concept of a sentencing
tariff. the development of a proportional
and escalating range of penalties. is
largely unknown in this country. The
American concept of a "going rate" for
criminal penalties based on local legal
culture emerges informally and rather
conveniently within a larger court and
legislative context undefined by conscious sentencing policy.
In the United States. the phrase "intermediate sanction" or "intermediate
punishments" will likely gain further currency in the next few years. IO However,

'Sally M. Frost and Geoffrey M. Stephenson. "A
Simulation Study of Electronic Monitoring as a Sentencing Option," The Howard Jaurnal. 28(2), (May
1989). pp.91-104.
,oMichael H. Tonry and Richard Will have written
a monograph. Intermediate Sanctions, which will be
published shortly by the National Institute of Justice. In addition, Tonry, who has written extensively about sentencing reform, has teamed up
with NorvaJ Morris of the University of Chicago
Law School to write a.book, Between Prison and
Probation: Intermediate Punishments in a Rational
Sentencing System, which will be published by Oxford University Press in January 1990.

8

FALL 1989

Policymakers are still unsure: will electronic monitoring alleviate prison overcrowding or widen the
net o( social control?

intermediate sanctions. like the original
were clearly centered on intensifying ofpresumptive sentencing proposals made
ficial supervision of defendants and ofin the late 1970s, are undoubtedly subfenders. not displacing these people
ject to the same sort of misapplication
from imprisonment. More recent applithat effectively co-opted and abated
cations of electronic monitoring, howmost attempts at implementing the guide. ever. are stressing decarceration. Oklaing principles of this earlier effort to rehoma, for instance, is now using
form sentencing practices.
monitoring devices to supervise persons
Presumptive sentencing, as originally
who are released from prison early beproposed, promised to shorten terms of cause of overcrowding.
imprisonment as well as reduce disparity
More to t~e point. Edmund B.
among imposed sentences. In general,
Wutzer, director of the New York
longer sentences resulted. Significantly.
State Division of Probation and Correcearly proponents of intermediate sanctional Alternatives. recently told a legislatively-sponsored public hearing on the
tions are far from knee-jerk supporters
role of electronic monitoring in the
of innovations such as electronic
monitoring.
.criminal justice system that "electronically monitored house arrest should be
utilized exclusively as a post-dispositional
Conclusion
alternative to incarceration and its appli"At present," Michael Tonry and
cation should be restricted to felony ofRichard Will wrote in a report for the
fenders for whom no other alternative.
National Institute of Justice, "electronic
or combination of alternatives. would
suffice to divert the individual from
monitoring is too often used in house
arrest and intensive supervision probaconfinement."
tion programs to monitor persons conFurthermore. Wutzer observed that
"our perspective that electronic monivicted of minor crimes and who present
few meaningful risks to public safety. For toring be employed as an alternative of
last resort is founded largely on the consuch offenders. electronic monitoring is
an expensive redundancy whose justifica- cept that electronically monitored home
tions must be political and public relaconfinement must be implemented in a
tions and not prophylactic.""
manner consistent with proportionality
Early electronic monitoring programs
in sentencing and in a way that does not
denigrate the value of other. already operational alternatives. If this new sanc"Michael Tonry and Richard Will, Intermediate
tion is imposed in cases where other alSanctions, (Castine. ME: unpublished report preternatives are now or could be applied.
pared for the National Institute of Justice), (1988).
p.19.
-continued on page sixteen

)

)

)

HIGHLIGHTS OF MOST
IMPORTANT CASES
Remedies-Closing of Facilities/Pretrial
Detainees/Contemptffotality of
Conditions/Crowding
Despite doctrines of deference to prison authorities, federal courts remain willing to use
their wide-ranging equitable powers to ensure
minimallv decent conditions of confinement. In
Inmates ofAllegheny County v. Wecht, 874 F.2d
147 (3rd Cir. 1989), the Court of Appeals upheld an order that the jail be closed. Although
conditions had improved since the beginning of
the 13-year-old litigation, the district court had
concluded that its prior orders had been "ineffective" to ensure constitutional conditions and
that "more stringent remedies" were required,
adding, "As a jail, time has passed this building
by." 699 F.Supp. 1137,1146-48 (W.O. Pa. 1988).
On appeal, the court held that the order was to
be reviewed by the usual abuse of discretion
standard as long as the record supported the
finding of constitutional violations. It added
(at 153): "When the totality of conditions in a
jail violates the Constitution a district court need
not confme itself to the elimination of specific
conditions.... Rather, the nature of the overall
violation determines the permissible scope of an
effective remedy.... Aremedy cannot, however,
go beyond the constitutional violations found."
[Citations omitted.) The court also upheld contempt fines for violations of population caps and
mental health stalfmg requirements, holding that
the impossibility defense to contempt refers to
"physical impossibility beyond the control of the
alleged contemnor." That standard was not met
here because the orders were directed to all the
defendants, including county officials, who "simply chose to take no steps to provide the Warden and his staff with the wherewithal to comply." (152)
In an even longer-running case, Palmigiano v.
DiPrete, 710 F.Supp. 875 (D.RI. 1989), the district court held that the Governor and the director of the Department of Corrections had failed
to purge themselves of contempt by complying
with prior orders, including population limits,
governing detention conditions. Their long-term
proposals were not responsive to the court's demand for immediate population reductions to
remedy long·standing violations of those orders.
The court held that the state executive branch
may be held accountable for implementing court
orders regarding state prison conditiOns, brushing aside their arguments that they lack "plenary
power to appropriate funds or enact legislation
..." (n.14). It gave equally short shrift to their
"unforeseen circumstances" argument, which it
said "shocks the sensibilities of this Court" in
view of the long history of overcrowding and
failure to address it. "This Court simply fails to
grasp the logic by which a problem recognized
for years is rendered unanticipated because it
has worsened." (884)
The court proceeded to levy the fines set prospectively in its previous order of 550 a day per

person held over the population cap. At 887: "A
federal court may, in the exercise of its eqUitable
power, order that fines it has imposed as sanctions for civil contempt be used to remedy the
problem underlying the contempt finding....
Even more to the point, federal courts faced
with prison overcrowding of crisis proportions
have exercised their equitable powers to order
that fines collected as contempt sanctions be
used to pay the bail of indigent detainees,
thereby effecting an immediate reduction in the
population." The court therefore ordered that
5164,250 of the accrued 5289,000 in fines b~
used as a bail fund. The remaining fines were
suspended, to be levied if full compliance is not
obtained. (Ed. note: The Court of Appeals af·
firmed this decision on August 17, 1989, C.A.
No. 89-1440.)
Procedural Due Process-Administrative
Segregation
ACalifornia federal court has set a constitu·
tional standard for the frequency of periodic review of placement in administrative segregation.
In Toussaint v. Rowland, 711 F.Supp. 536 (N.D.
Cal. 1989), the court held that the necessity for
continued segregation must be reassessed every
90 days and that a 120-day delay between reviews denies due process. This decision appears
to be the first to set a firm constitutional standard on the question. Previous decisions had upheld periods ranging from a month to 90 days
without expressly disapproving any interval
much shorter than a year. See MCQueen L'. Tabah, 839 F.2d 1525, 1529 (11th Cir. 1988)
(eleven months without review stated a due process claim); Tyler v. Black, 811 F.2d 424, 429
(8th Cir. 1987) (90 days "approaches constitutionallimits"); Toussaint v. JfcCarthy, 801 F.2d
1080, 1101 (9th Cir. 1986) (twelve months
without review denied due process); Clark v.
Brewer, 776 F.2d 226, 234 (8th Cir. 1985)
(weekly hearings for two months and monthly
hearings thereafter upheld); .'rfims v. Shapp, 744
F.2d 946, 952-54 (3rd Cir. 1984) (30-day review
adequate). The court made additional rulings
concerning due process in administrative segregation discussed .below.
The defendants have appealed, but no decision
is expected until well into 1990.
Religion
Recent federal appellate decisions on prisoners' religious rights reveal deep divisions in
the application of the Supreme Court's decision
in O'Lone v. Shabazz. The SLxth Circuit, in Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989),
struck down as unconstitutional a de facto prohibition on congregate Passover Seders and on
Sabbath services that resulted from newly imposed movement restrictiOns in a Michigan
prison.
The Whitney court held that the Passover
Seder claim "may easily and significantly be distinguished from O'Lone" because it involved six
inmates and a ceremony that takes a few hours
once a year, as opposed to the larger number of
Muslim inmates in O'Lone who wished to be released from work for Jumu'ah services every Friday. Regarding the Sabbath service claim, on
which the district court had ruled for prison officials, the court considered and directly rejected

A PROJECT OF THE

.\..\IERIC....' i Cl\1L LIBERTIES CSIOS
FOI:SDATION. ISe.

Since September of 1984, attorneYs andO;t'm
other criminal justice practitioners have ,.' ,:"j
turned to the National Prison ProjectjOUR:li
NAL for timely, comprehensive, and accuratei
coverage of prison issues.
.. .
...,k~l
ThejOURNAL covers the latest news on.2~~
AIDS in prison, overcrowding and its effeets;;;~
corrections litigation, and much more. We:;:';j
cover topics in depth and with an analysis':';J1
that you simply will not find eIsewhere:,;i;i~
With this issue we are happy to introd!lS~J

far::~;::~eat~{~:'::,1;:ce:::;;;ri~:J

federal court opinions wqich are relevant' t.9~~
corrections litigation. Each opinion is indet~
to. ?ne..or more ~bject ~atter. headnotes;.an
. ,.,. <'..$1
penodlcally we will publIsh a compIete-<·/;~Y~
index.
".. ·,/~'t~
Case Law Report is prepar~d by J~~BoSI~
ton, a staff attorney at the Prisoners Rights;f~
Project, Legal Aid Society of New York. A.··.· ,1f'j
graduate of New York University Law SChoO~'i
Boston has co-authored Counsel for fbi PoOti'l
Criminal Defense in Urban America, and ed;:;l
ited the revised second edition of the Pris-,;;}{

oners'SelfHelp Litigation Manual. '<:r~~
Boston, who has been involved in pris-t<.dJ

oners' rights litigation since the early 1970s,!~
is "a lawyer's lawyer," according to Ed Komij
of the Nation:l;l Prison Project He is well>;
known as someone to whom experienced ..;:
lawyers will go for information and advice.
We guarantee that his concise, authoritative
reports on recent court' decisions will become an indispensable source of important
new legal developments for you and your
colleagues.
prison officials' security arguments. They had asserted that the Jewish inmates were in danger of
attack and there was potential for escape or the
smuggling of contraband. However, the court
noted that there was no evidence in the record
of escape attempts or of any unusual vulnerabilitv of these inmates to attack. and that inmates
found with contraband had been disciplined individually. Since there was much movement of
inmates from complex to complex for other purposes, the court termed it "inconsistent and irrational" to prohibit a few inmates to travel to Sabbath services, and also stressed the "glaring
inconsistency" of the defendants' practice of letting prisoners in the ma.ximum security complex
FALL 1989

9

assemble a minyan by having an outside rabbi
bring in civilian volunteers while prohibiting attendance by prisoners from other complexes.
More generally, the court stated (at 1074):
"Perhaps the greatest weakness in the prison officials' arguments is their misunderstanding of
Turner and O'Lone as holding that federal courts
will uphold prison policies which can somehow
be supported with a flurry of disconnected and
self-conflicting points. They seem to read Turner
and O'Lone as saying that anything prison officials can justify is valid because they have somehow justified it. In an argument typical of their
conclusory approach to the problem, the prison
officials maintain that the Passover Seders should
be banned because '[alny time the normal rou·
tine of an institution is altered, the good order
and security of that facility are potentially compromised.' ... The fact remains, however, that
prison officials do not set constirutional stan·
dards by fiat."
The Second Circuit took a very different ana·
Iytical approach in Fromer v. Scully, 874 F.2d 69
(2d Cir. 1989), which upheld a rule limiting
beards to one inch in length as applied to an Or·
thodox Jewish prisoner. The court stated, "We
believe that Turner and O'Lone call for greater
deference to the judgment of prison officials
than was given by the district court." (73)
The district court had held that it was "not
persuaded" of the logical connection between
the prison officials' concern for identification
and the beard rule; the appellate court stated
that there was no burden of persuasion on the
defendants. The Circuit also rejected the plain'
tiffs' arguments concerning inconsistencies in the
prison officials' security arguments. The plaintiff
had argued that the rule was irrational because
only a complete prohibition on beards would
serve the defendants' interest in identification;
the court "reject[edl that approach as leading to
perverse incentives for prison officials not to
compromise with inmate desires lest all future
demands be compared with the compromise
rather than with minimal constitutional require·
ments." (74) The court also rejected the argument that defendants' concern about contraband
hidden in beards was irrational as long as pris·
oners could hide contraband in their clothing,
and was unmoved by the fact that the defendants
produced no evidence of contrab~d found in
beards, holding that it could not "second-guess
reasonable efforts" at anticipating future security
problems. (75) It held that the plaintiff had alter·
native means of religious observance, such as
obeying dietary laws. It disapproved the district
court's unsupported assumption that there are
few Orthodox Jews in state prisons, holding that
the defendants had no burden to produce evidence on that point. Finally, it found that the alternative of periodically rephotographing inmates who grow beards had more than de
minimis costs, financially and administratively.
Ironically, the Fromer court relied in part on
the Sixth Circuit's prior decision in Pollock v.
Jlarshall, 845 F.2d 6;6 (6th Cir. 1988), in
which short shrift was given to a Native American prisoner's religious objection to haircutting.
Other post·O'Lone Circuit decisions addressing
religious rights in the context of a factual record
include: McCorkle v.johnson, 881 F.2d 993
(ll th Cir. 1989) (restrictions on Satanic literature upheld); Siddiqi v. Leak, 880 F.2d 904 (7th
10

FAll 1989

Cir. 1989) (screening mechanism for outside religious organizations upheld);]ohnson·Bty v.
Lane, 863 F.2d 1308, 1312 (7th Cir. 1988) (in'
mate-led religious services could be prohibited);
SapaNajin v. Gunter, 857 F.2d 463 (8th Cir.
1988) (Sioux prisoner's rights were violated
where only available medicine man was a member of a sect of "institutionalized deviants"; de·
fendants required to provide some services by
other medicine men); Cooper v. Tard, 855 F.2d
125 (3rd Cir. 1988) (ban on unsupervised group
prayer in high-security unit upheld); Williams v.
Lane, 851 F.2d 867, 877-78 (7th Cir. 1988)
(denial of group worship and other religious
rights to protective custody inmates was unconstitutional); Reed v. Faulkner, 842 F.2d 960 (7th
Cir. 1988) ("conjecture" concerning violence
resulting from wearing of dreadlocks did not
justify ban; plaintiffs' evidence of arbitrary enforcement of the ban shifted the burden of justi·
fication to the defendants); Kahty v.jones, 836
F.2d 948 (5th Cir. 1988) (prison officials need
not accommodate plaintiJfs request for an indivi·
dualized religious diet).

were inadequately trained in the use of "canine
force" based on evidence "that police dogs must
be subject to continual, rigorous training in Jaw
enforcement techniques," that officers "resorted
to the use of canine force more frequently than
did canine units in other municipalities," that the
city's ratio of bites to apprehensions was viewed
as an indicator of an "irresponsible use of force,"
and that canine officers "often used excessive
force to apprehend individuals suspected only of
minor misdemeanor offenses." (1556)
Ajury could have concluded that this inadequate training reflected city policy because can·
ine force frequently resulted in injury to the sus·
pect, force reports were fJ..led in each such case,
these reports were "then reviewed by supervisory officials - inclllding the municipality's former chief of police-to whom the City had delegated policyrnaking authority."
The court also held that the exclusion of evi·
dence of pending lawsuits alleging excessive
force was "almost certainly erroneous" since
these were relevant to the question of the City's
notice of the unconstitutional conduct.

Communication and Expression
The federal courts continue to defend a pris·
oner's right to criticize his keepers. In Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir.
1989), damages were a1flIllled for inmates who
were transferred for complaining publicly about
alleged mismanagement and corruption and airing their grievances at a meeting with the Superintendent. The court stated, "Prison officials have
broad discretion to transfer prisOners ... They
may not, however, transfer them solely in retaliation for the exercise of constitutional rights."
879 F.2d at 1046. The jUry rejected the officials'
claim that the transferred inmates had been in·
volved in planning an insurrection. The prisoners
also received damages for assaults by guards in
the course of their transfers.
This post· Thornburgh v. Abbott decision is
. consistent with the approach of numerous recent pre·Abbott decisions in First Amendment
retaliation cases. See Todaro v. Bowman, 872
F.2d 43 (3rd Cie. 1989) (discipline for letters
complaining about jail); Cale v.johnson, 861
F.2d 943 (6th Cir. 1988) (discipline for complaints about food); see also Frazier v. King, 873
F.2d 820 (5th Cie. 1989) (nurse's disclosure of
prison nursing standards violations was protected expression). Complaints made through of·
ficial grievance processes are particularly worthy
of protection. See Sprouse v. Babcock, 870 F.2d
450,452 (8th Cie. 1989) (analogizing grievances
to lawsuits);]ackson v. Cain, 864 F.2d 1235,
1248-49 (5th Cir. 1989); Wildberger v. Bracknell, 869 F.2d 1467 (lIth Cir. 1989); but see
Williams v. Smith, 717 F.supp. 523 (W.O. Mich.
1989) (retaliatory disciplinary charge of which
the prisoner was cleared did.not violate substan·
tive due process).

Municipalitiesffraining
In an important early application of the Can·
ton v. Harris standards for municipalliabiIity,
the Eleventh Circuit has upheld a jury verdict
against a city based on inadequate police train·
ing. In Kerr v. City of West Palm Beach, 875
F.2d 1546 (lIth Cie. 1989), the court held that
a jury could have concluded that police officers

OTHER CASES WORTH
NOTING
U.S. COURT OF APPEAlS
Attomeys' Fees and Costs/fransportation to
CourtslIn Forma Pauperis
Sales v. Marshall, 873 F.2d 115 (6th Cir. 1989).
Writs of habeas corpus ad testificandum are generally issued under the habeas corpus statutes and not
the All Writs Act, and there is no authority for imposing the costs of transportation to court on a prisoner·plaintiff. (But these costs may be awarded
against the plaintiff for transportation of prisoner
witnesses.) Expenses of the defendants' deposition
of the plaintiff may be taxed as costs against the in
forma pauperis plaintiff, subject to a determination
that the plaintiff is able to pay the costs.
When a prison is reqUired to produce an inmate
for proceedings in which the prison is not a party
(here, a state prisoner's suit based on events in the
county jail), the prison may not seek transportation
costs without having timely intervened.
Habeas Corpus
Sheppard v. State of La. Board ofParole, 873
F.2d 761 (5th Cie. 1989). The plaintift's parole was
revoked because he failed to pay 543 a month in pa·
role supervision fees. His challenge to the constitu·
tionality of the fee statute's application to him was
barred by Preiser v. Rodriguez, even though he
sought damages and a declaration and not release.
because if he were successful the basis for his incarceration would be undermined
In Forma Pauperis
In re Funkhouser, 873 F.2d 1076 (8th Cir. 1989).
If a prisoner is required to pay a partial filing fee.
the court should treat the case in the same manner
as one not filed in forma pauperis. There should be

no further proceedings concerning whether the
complaint is frivolous; this determination should be
made before a partial ruing fee is reqUired. The
court of appeals chastises the magistrate ("We deem
it extraordinary ...") for a 17-month delay in determining the plaintiffs' eligibility for IFP status, in a
case involVing serious constitutional claims in which
the pro se plaintiffs had rued a motion for a prelimi·
nary injunction. The magistrate is directed to con·
suit with the chief judge "to adopt procedures
which would ensure immediate processing of all
motions of prisoners to proceed in forma pauperis
in a reasonable and timely manner."

Discovery
Greenberg v. Hilton International Co., 875 F.2d
39 (2d Cir. 1989). At 42: "In the future, requests for
costly statistical compilation useful only for profes·
sional analysis should be accompanied by reasonably
precise representations as to counsel's intentions
with regard to preliminary analysis and to retention
of an expert. Those resisting such discovery can
then be given the option of producing only that
data necessary to preliminary analysis with more
elaborate production to follow if the preliminary
analysis indicates that more sophisticated examina·
tion would be useful."

Procedural Due Process-;-Disciplinary
ProceedingslHabeas CorpuslFederal Officials
and Prisons
Greene v. Meese, 875 F.2d 639 (7th Cir. 1989).
The plaintiff, a federal prisoner, alleged that he had
been subjected to repeated disciplinary sanctions in
retaliation for rejecting guards' homosexual solicita·
tions and resisting searches that had "homosexual
overtones," and sought damages, restoration of good
time and parole eligibility.
Because the relief sought by the plaintiff would
shorten his confinement, he was required to exhaust
his administrative remedies with respect to each dis·
ciplinary conviction he challenged, even if it was
likely that he would lose.
The fact that the plaintiff also sought damages did
not alter this result. At 642: "A prisoner may not cir·
cumvent the requirement ofcomplete exhaustion
by first suing for damages or a declaratory judgment
and then using a favorable judgment in that suit as a
basis for requesting a reduction in the length of his
imprisonment."

Remedies/Attorneys' Fees and Costs
Muckleshoot Tribe v. Puget Sound Power <S:
Light Co., 875 F.2d 695 (9th Cir. 1989). For a set·
tlement to waive attorneys' fees, the waiver must
appear in the settlement and must "clearly accomplish" that purpose. It is not necessary for the plain·
tiff to reserve the fees question. If poor draftsman·
ship frustrates that purpose, the defendant may
resort to extrinsic evidence and prevail "if it can
show clearly that the parties mutually intended" a
fee waiver. (698) Dismissal of the complaint with
prejudice does not serve as a fee waiver.

Statutes of LimitationslMunicipalities/
Staffing-Training
Jferritt v. County ofLos A.ngeles. 875 F.2d 765
(9th Cir. 1989). 'Xbere the plaintiff in a police misconduct case sued the city within the limitations pe·
riod but onlY identified the individual officers after
the statute had run, state law ':John Doe" tolling
rules which did not require notice to the officers
during the limitations period should have been
applied.
The evidence did not support municipal liability
for inadequate use of force training. "Each prospec'

tive deputy is given, prior to his academy training. a
two-day training session regarding the department's
policies on the use of force. TWellty percent of the
academy training, which may last from four to six
months, addresses the use of force. Some ten percent of specialized post-academy training continues
the deputy's education regarding use of force."
(770) The omission to train regarding a "very rare"
situation does not amount to deliberate indifference.

Personallntegrity/Clothing
Felts v. Estel/e, 875 F.2d 785 (9th Cir. 1989).
Where a jailed criminal defendant was not prOVided
with civilian clothes until sLx days into his trial, due
process was denied. At 786: "[T]he state is under an
affirmative duty to provide civilian clothing in a
timely fashion and, if no such clothing is in its possession, to prOVide reasonable funds for the pur·
chase of acceptable attire." The court reserves the
question of what constitutes "suitable clothing" and
whether the answer is different if the defendant is
representing himself.

Medical Care/Suicide Prevention!Qualified
Immunity
Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989).
Jail officials were entitled to qualified immunity in a
jail suicide case. Although the rights to be free of
deliberate indifference to medical needs and of un·
justified intrusions on personal security were clearly
established, these are not "particularized" enough to
put the defendants on notice of their obligations on
these facts. At 1244: "The 'right' that is truly at issue
here is the right of a detainee to be screened cor·
rectly for suicidal tendencies and the right to have
steps taken that would have prevented suicide."
This is different from medical care cases involVing
deliberate indifference to prisoners who request
care.
Prior case law "only establishes the general prin·
ciple that supervisors are liable for grossly negligent
or nonexistent training that leads to the violation of
constitutional rights; It does not say that suicide
procedures and training must be provided." (1245)

Management, Safety and SecuritylUse of
ForcelPersonallnvolvement and Supervisory
LiabilitylDamageslEmergency
Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989).
After a disturbance in which an officer was stabbed
to death, officers engaged in retaliatory beatings.
The assistant corrections director could be held
liable based on testimony that placed him in clear
view of the beatings and the fact that he took no action. The facts establish both deliberate indifference
and tacit authorization, either of which is sufficient
to support liability.
The associate warden could be held liable based
on evidence that he "knew or should have known
that flaring tempers among the prison guards would
lead them to retaliate against the inmate" and that
he did nothing to prevent it (e.g., ride on the in·
mate bus and supervise it). (1347)
Acaptain who saw the beatings, who told the
Highway Patrol "I've seen a lot more ass kicking
than was done in there," and who directly partici·
pated in at least one beating could be held liable for
all the beatings; "by virtue of his supervisory author·
ity, [he1invited other corrections officers to follow
his example," constituting tacit authorization.
(1348).
Compensatory damages of 59,500 to 514,500 and
punitive damage awards of 52,000 to 510,000 per
defendant (aggregating to up to 574.000 for some
plaintiffs) are upheld.

Transfers/Access to Courts-Punishment and
Retaliation
Adamsv. WainuTight,875F.2d 1;36 (I Ith Cir.

1989). The court refuses to hold that a prisoner in a
retaliatory transfer case must prove that he or she
would not have been transferred "but for" an assertion of constitutional rights. The court does not explain what standard it does utilize. (Since this brief
opinion begins by obserYing that the plaintiJfs evidence refuted his allegations and there was no material issue of fact, this comment is dicrum an}way.)

Procedural Due Process-Administrative
SegregationlPro Se Litigation! Amendment
of Pleadings
Thompson·EI t'.Jones, 876 F.2d 66 (8th Cir.
1989). The district court properly denied leave to
amend the complaint two weeks before the trial and
eighteen months after the case was rued, even
though the initial complaint was drafted pro se. The
plaintiff and his lawyer claimed that they did not
know of the need for an amendment until they obtained certain discovery materials, but they had
been dilatory in seeking those materials. In dicta
(n.6), the court observed that the plaintifi's claims
might have had merit because he was placed in administrative segregation for investigative purposes
for six months and there was "little or no investigative activity for much of the period between July
and December ... [T]he fact that an investigation is
characterized as 'ongoing' will not automatically justify keeping the inmate in administrative segregation," and the longer it goes on the more likely it is
to be pretextual.

Procedural Due Process-Temporary
Release/Qualified Immunity
. Lanier v. Fair, 876 F.2d 243 (1st Cir. 1989). A
Massachusetts prisoner had no constitutionally
based liberty interest in staying in a halfway house.
State regulations prOViding for termination if "the individual is not suited for that program or ... the
program is not meeting the individual's needs"
(247) do not create a liberty interest because they
do not contain substantive standards either for ter·
mination or for reclassification to a higher security
level. However, a "Manual of Operations" and "Pro·
gram Standards," which contain standards binding
under the contract between the Department of Cor'
rections and the private operator of the halfway
'house, contained more specific standards for termination that created a liberty interest.
Aprisoner removed from a halfway house is entitled to the procedural protections prescribed by
WOlff v. McDonnell for disciplinary proceedings.
For security reasons, this prisoner, who was suspected of an escape attempt, could be given a hear·
ing after and not before his return to higher
custody.
There was a state-created interest in avoiding the
rescission of a parole date, but the defendants were
entitled to qualified immunity.

Management, Safety and SecuritylUse of
Force
Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989)
(en banc). Applying the Supreme Court's recent
holding in Graham v. Connor, _U.S. _,109
S.Ct. 1865 (1989), the court holds that a constitutional excessive force has three necessary elements
(at 480):
a) a significant injury, which
b) resulted directly and only from the use of
force that was clearly excessive to the need; and the
excessiveness of which was
FALL 1989

II

c) objectively unreasonable.
(footnote omitted)
The omitted footnote (n.1) terms it "unlikely"
that there will be "Significant injury" without "sig'
nificant physical injury:' but the court does not de·
cide whether a "significant but non'physical injury
would be legally sufficient." The court does not de·
fine "significant" but holds that the plaintiff, who
was handcuffed so tightly as to leave permanent
scars and cause him to miss rwo weeks of work,
. raised fact issues barring summary jUdgment.
Seven out of fifteen judges join in an opinion reo
jecting the "significant injury" requirement and also
object to the "directly and only" causation
requirement.
Although the majority holding is stated in broad
terms, the case involved police misconduct and the
courtdoes not address its applicability in prisons
and jails.

Pretrial DetaineeslRights of Particular
Groups/Communication and Expression!
Qualified Immunity
Franco·De]erez v. Burgos, 876 F.2d 1038 (lst Cir.
1989) at 1042: "Indeed, counselor no counsel, the
Constitution does not permit the government to
hold a criminal defendant incommunicado to the
point where she must contact her husband by
throwing a rock with a message out the window."
The plaintiff was detained by the lmmigration and
Naturalization Service.
Because of "the possibly egregious nature of
[plaintiJfs] detention:' the defendant was not enti·
tled to qualified immunity.

Good Time
Raske v. Martinez, 876 F.2d 1496 (11th Cir.
1989). Modification of the statutory provisions for
"incentive gain time" was an unconstitutional ex
post facto law as applied to prisoners convicted of
crimes committed before the statutory amendment.

DISmCl COURTS
Pretrial DetaineesiCrowdingIModification of
JudgmentslIntake
Benjamin v. Koehler, 710 F.Supp. 91 (S.D.N.Y.
1989). At 93: "[AI defendant seeking modification of
a decree, even in circumstances of institutional. reo
form litigation, where such modification is consid·
ered on a more flexible and generous basis, bears
the burden of establishing that the relief requested
will further, rather than frustrate, the purposes of
the decree." The burden is heavier where full com·
pliance with the decree has never been achieved.
The court refuses to modify prior overcrowding
orders because of inevitable strains on service deliv·
ery. Defendants' claims that they would add enough
resources to prOVide services are "too general in na·
ture to give confidence that the enormous problems
which an increase in population would aggravate
can be successfully overcome."

Protective CustodylEqual Protection
Crozier v. Shillinger, 710 F.Supp. 760 (D. Wyo.
1989). Differences in conditions of confinement be·
rween general population and protective custody
did not violate the Eighth Amendment. At 764: "Any
inequalities berween protective custody inmates and
prisoners in the general population are brought
about by security concerns and, hence, do not give
rise to an equal protection argument."

12 FALL 1989

EnvironmentlMedical CarelProtection from
Harm
Gorman v. Moody, 710 F.Supp. 1256 (N.D. Ind.

lack of audio or visual monitoring in the shower
area because he played no role in the planning or
development of the prison.

1989). The failure to segregate smokers from non·
smokers in prison should be governed by the "delib·
erate indifference" standard, except that the plaintiff
must show "the most deliberate indifference," i.e.,
"that prison officials intentionally exposed him to a
known risk of harm and actually intended to harm
him." (l26O) (emphasis supplied). The plaintiff here
did not allege that second·hand smoke exacerbated
an existing serious medical condition. At 1262: "Be·
cause the Eighth Amendment draws its meaning
from the evolVing standards of decency in society as
?-c whole, it is particularly relevant that this society
cannot yet completely agree on the propriety of
nonsmoking areas and a smoke·free environment"
Indiana's "Clean Indoor Air law" prohibiting
smoking in designated areas, and requiring that offi·
cials in charge of public buildings designate no·
smoking areas, does not create a liberty interest pro'
tected by due process because it does not identify
prisons as public buildings, it permits waivers by the
state board of health, and because prisons have
never been thought of as public buildings.

Verbal AbuselPersonal HygienelUse of
ForceIPrivacy
Gilson v. Cox, 711 F.Supp. 354 (E.D. Mich. 1989).

Procedural Due Process-Visiting/Consent
Judgments and SettlementsIModification of
Judgments
Kozlowski v. Coughlin, 711 F.Supp. 83 (S.D.N.Y.
1988), affd, 871 F.2d 241 (2nd Cir. 1989). An ap'
pendix containing a penalty schedule of deprivation
of visits was an integral and bargained·for part of a
consent judgment establishing procedural protec·
tions for such deprivations.
The fact that the penalty schedule might not have
been required by the Constitution did not mean
that the Eleventh Amendment barred its enforce'
ment. As long as consent decree provisions "spring
from and serve to resolve a dispute within the
Court's subject matter jurisdiction" and "come
within the general scope of the case made by the
pleadings, and ... further the objectives of the law
upon which the complaint was based" (86), the
court may enforce them. Here, the case was about
procedural due process and the procedural protec·
tions varied according to the severity of the
sanctions.
Permitting defendants to alter one part of the de·
cree would result in denying plaintiffs a full and fair
hearing on their federal rights, since no one knows
what the court's findings of remedy might have
been had the case been tried

Management, Safety and SecuritylProtection
from AssaultlPersonal Involvement and
Supervisory Liability
Heine v. Receiving Area Personnel, 711 F.Supp.
178 (D. Del. 1989). The plaintiff was admitted to
jail and turned over to an inmate worker for delous·
ing and a shower, contrary to jail policy regarding
the supervision of this proc~ss by officers. The in·
mate worker sexually assaulted him. The officer reo
sponsible had previously been reprimanded for his
failure to supervise inmate workers dUring intake
processing. The officer is not liable becasue there
was no evidence that the assailant "presented a spe·
cific risk of violent homosexual attack to new pris·
oners in the BARC area." (l84)
The warden could not be held liable because he
had drafted proper procedures and had tried to en·
force them before the incident. The captain who suo
pervised the defendant officers could not be held li·
able because he had told them what to do. The
commissioner could not be held liable based on the

At 355: "It is well established that verbal harassment
or abuse-standing alone-is not sufficient to state a
constitutional deprivation under section 1983."
The failure to prOVide toilet paper on request did
not violate the Constitution.
Sworn allegatiOns that an officer reached for a
prisoner's groin area and grabbed his buttocks
raised issues of material fact based on his interest in
"personal bodily integrity," including "the right to
be free from sexual abuse."

Remedies.1udicial Disengagement!
Procedural Due Process-Administrative
SegregationIMonitoring .
Toussaint v. Rowland, 711 F.Supp. 536 (N.D. Cal.
1989). The court adopts the monitor's recommen·
dation that its "continuing jurisdiction to review
due process" end in one year, unless there is a fmd·
ing that due process violations are "continuing to
occur with regularity," rejecting plaintiffs' request
for rwo and a half years without violations. It ap·
pears, but is not completely clear, that the court
contemplates that the substantive terms of the in·
junction would terminate upon one year of
compliance.
Where inmates are segregated based on alleged
prison gang membership, there must be a procedure
for prompt determination whether they actually are
gang members.
Due process forbids defendants from relying on a
polygraph examiner's opinion as to the truthfulness
of a prisoner's denial of prison gang membership or
his answer to any related question as the basis for
imposing segregation.
Due process requires that defendants, when rely'
ing on confidential information, "must inform the in·
mate of as much of the relevant content of that in·
formation as possible consistent with the non:
disclosure of the source of information." (542)
Continued monitoring of defendants' performance
is supported by the monitor's conclusion that indio
vidual lawsuits have little potential for curing due
process violations. The court via the monitor will
continue to review individual inmates' requests for
review of their placement in segregation.

Modification of}udgments
United States v. State of New York, 711 F.Supp.
699 (N.D.N.Y. 1989). Aconsent decree proVided for
a 40% goal of minority hiring and a 10% goal of hir·
ing of women in the state police. The state asked for
a less demanding standard for minorities and the
United States said the standards should be abolished
entirely. The court abolishes the percentage stan·
dards but directs further relief concerning selection
procedures that do not have adverse effects on mi·
norities and women. It relies on race discrimination
cases rather than on Rule 60 cases.
Nobody represents minorities and women in this
case!

Procedural Due Process-Disciplinary
Proceedings
Sanders t'. Borgert, 711 F.Supp. 839 (E.D. Mich.
1989). The plaintiff was validly convicted of "major
misconduct" in a disciplinary hearing even though a
state court had invalidated the document defining
that term because the state court decision was not

retroactive. The court does not address the question
of whether a constitutional question would have
been presented in any case.
Transfer to segregation after a finding of major
misconduct does not deny due process; this conclu·
sion follows the interpretation of prison policies and
regulations of Walker v. Milltzes, 771 F.2d 920,
933-3-4 (6th Cir. 1989).
Alimit of sLx months on the amount of good time
that can be forfeited for a single infraction creates a
liberty interest protected by due process. If a pris·
oner receives a hearing on the underlying disciplinary charge, due process does not require a second
hearing to determine whether good time will be
forfeited.

Protection From Harm-AccidentsJ
Theories-Due ProcessfIheories-Cruel and
Unusual Punishment
Denz v. Clearfield County, 712 F.Supp. 65 (W.D.
Pa. 1989). An allegation of a slip and fall caused by
moisture accumulated because of inadequate venti·
lation did not state an Eighth Amendment claim. At
66: "Dank,. hot and humid cell conditions do not
constitute cruel and unusual punishment; the occur·
rence of a slip and fall injury as a result does not
transform this into the 'wanton infliction of unnecessary pain.'" (66) Substantive due process rights
are no greater than Eighth Amendment rights. The
plaintiff has no procedural due process claim be·
cause of the availability of a state tort remedy, even
if recovery would be precluded by an immunity
doctrine.

Evidentiary Questions/Damages
Ismail v. Cohen, 712 F.Supp. 416 (S.D.N.Y. 1989).
Evidence concerning a prior excessive force inci·
dent involVing the same police officer was admissi·
ble to prove a relevant pattern and the officer's intent. (See prior opinion at 706 F.Supp. 243 for a
more extensive discussion.)
Damages of 5650,000 for a police arrest and beat·
ing resulting in various continuing painful conse·
quences of excessively tightened handcuffs plus a
broken rib, none of which actually required treat·
ment, were excessive. The court reduces the award
to 5200,000. Punitive damages are reduced from
5150,0.00 to $1,000.
Law Libraries and Law Books/Confiscation
and Destruction of Law Materials
Hadix v. Johnson, 712 F.Supp. 550 (E.D. Mich.
1989). Aconsent judgment provided that limits on
personal property would not apply to legal papers
and law books unless they presented a security or
fire hazard. The prison then limited all property to
one duffel bag and one footlocker. The court holds
this role not to be inconsistent with the consent
judgment.
When a prisoner has more than one footlocker of
legal materials, officials may not seize all the legal
materials, but just those that don't fit into the
footlocker.
Property limitations may only be imposed on rna·
terials that are not "reasonably necessary to pending
litigation" under the terms of a consent judgment.
Prison officials cannot use this rule to forbid prisoners from possessing law books Liat are also avail·
able in the law library, since books that are theoretically available are often lost and great difficulty
attends using the library.
Pens, pencils, "whiteout," legal pads, and other
writing supplies may be treated as general personal
property and not as legal materials for purposes of
property limitation.

Remedies/Attorneys' Fees and Costs
Knop 11• Johnson, 712 F.Supp. 571 (W.O. Mich.
1989). The National Prison Project is entitled to
51.5 million in attorneys' fees.
Where a claim is partly successful. plaintiffs need
not be able to identify all the hours spent on the
successful and unsuccessful parts. The court uses a
percentage reduction method.
At 578: "Many hours claimed were spent in con·
ferences between attorneys and law clerks. It is
within the Court's discretion to grant attorneys' fees
for time spent conferring with co·counsel and with
subordinates, and I will do so here."
At 578: "Obviously, plaintiffs' counsel had an ethi·
cal duty to communicate with their clients, and
time spent on that task is compensable. The time
spent proofreading was time well spent, and the
court sincerely wishes counsel for the defense had
been as conscientious in that regard dUring the
course of this litigation."
At 579: "Although most document identification
can be handled by support staff or less experienced
attorneys, the attorney with primary responsibility
for conducting deposition or trial testimony must
also spend same time compiling and reviewing the
pertinent documents. Similarly, someone with
knowledge of the case and the trial schedule had to
assume responsibility for identifying the prisoner
witnesses and coordinating their appearances."
At 579: Billing more than eight hours for a day is
not "evidence of duplication or inefficiency." At n.5:
"Perhaps the defendants' attorneys are not used to
working such lengthy hours."
At 58 I: Hours spent on a successful Rule 11 mo·
tion are compensable even though the sanctions im·
posed included attorneys' fees; otherwise, the Rule
1I sanctions would be meaningless. In other words,
plaintiffs get paid twice.
Plaintiffs' counsel are not limited to the median
rate for legal services in the community. At 583:
"These attorneys are nationally recognized experts
in a complex field of federal practice. They are by
no means the median member of the bar, and their
hourly rates should be adjusted upward to rellect
. both their specialization and the extremely high
quality of the representation they provided to the
plaintiff class." Also, the National Prison Project is a
small part of the ACLU.and should be regarded as a
department of a large law firm rather than as a sepa·
rate law firm. Anational project is also entitled to
charge higher rates for practice outside a local
community.
At 583: "It has been my experience that prisoners
are generally unable to retain attorneys in private
practice."
At 585: An enhancement of the lodestar figure is
appropriate because the complexity and expense of
the litigation made it impossible to find counsel 10'
cally. At 586: Enhancement is also necessary "to
compensate plaintiffs' counsel for the unpleasant·
ness, stress, and gross inconvenience of litigating
against counsel who repeatedly ignored deadlines
imposed by Federal Rules and by the Court, reo
quired plaintiffs' counsel to return to Court again
and again in order to accomplish adequate discov·
ery, and who launched improper attacks on both
plaintiffs' counsel and witnesses." Prison officials' reo
fusal to produce prisoners promptly for interviews
is also cause for an enhancement.
Expert witness fees are not compensable under
the fees statute; plaintiffs may recover only their
travel expenses (including food and hotel) and stat·
utory witness fees. Photocopying, travel, telephone
and other extraordinary expenses (including post·
age) may be awarded. Transcript and deposition
costs are allowed

Modification ofJudgmentslJudicial
Disengagement
Lamphere v. BT'Qull University in Providence,
712 F.Supp. 1053 (D.RI. 1989). At 1055: "... a con·
sent decree is to remain in effect so long as its con·
tinued enforcement is necessary to effectuate its
purposes ... " At 1060: The decree terminates upon
the :ichievement of "substantial compliance"; for
this purpose the decree's terms must be considered
as a wh•. oie.

MarriagelEquai Protection
Langone v. Coughlin, 712 F.Supp. 1061 (N.D.N.Y.
1989). The right of prisoners to marry is fundamen·
tal. The Turner rational basis standard applies to the
evaluation both of prison regulations and statutes
restricting prisoners' rights. After Fromer v. SCUlly,
it is the plaintiffs' burden to show that the govern·
mental interests asserted by the defendants are
irrational.
At n.6: The court questions whether the regula·
tion of marriage and support and the clarification of
marital status are "legitimate penological objec·
tives" but assumes they are for analytical purposes
(emphasis supplied).
ANew York statute forbade prisoners with life
sentences to marry but did not invalidate marriages
that they had entered into before sentencing. The
statute was not supported by the state's interests in
punishment, the regulation of marriage and support,
or the clarification of marital status. The court relies
primarily on the underinclusiveness of the prohibi·
tion and the irrationality of the distinction between
the already married and those who wish to marry,
without clarifying to what extent it is ruling on
equal protection grounds or on substantive due proc·
ess grounds. There are no alternate means to exercise the right to marry other than marrying. The
court observes that the Department of Correctional
Services itself has supported the right of inmates
with life sentences to marry.

FEDERAL RULES
Discovery
Mueller v. Walker, 124 F.RD. 654 (D. Ore. 1989).
Factual information in a police investigative file is
ordered produced in a use of force case, but "evalu·
ative or summary portions" are not ordered produced. Witness statements are to be produced. Rec·
ords of prior incidents of excessive force are to be
produced because of their relevance to the claims
of improper supervision and training, but evalua·
tions, other portions of the personnel files and non·
force· related disciplinary matters need not be dis,
closed. Results of psychological tests are to be
disclosed. Aprotective order will be required. The
court reaches these results by in camera review of
the documents.
Demary v. Yamaha .Motor Corp., 125 F.R~. 20
(D. Mass. 1989). Failure to res~nd to discovery
timely resulted in a waiver of all objections.

FALL 1989

13

Judy Greenspan
No Uniformity Nationwide
on AlbS
No nationwide corrections policy has
been formulated in response to the
AIDS epidemic within prison walls. Each
sector-federal, state, or county-follows its own procedures. And, according
to one state corrections health director,
these procedures have often been made
up as they go along.
Recently, corrections officials in Connecticut agreed in a court settlement to
stop segregating prisoners with AIDS,
the first time a state has rescinded an
AIDS quarantine policy. The Connecticut
Department of Corrections had segregated all prisoners with AIDS into a special unit at the Somers Correctional Institution. Prisoners were confined to this
small housing unit for 23 hours a day,
and allowed no .contact with the prisoners housed in general population. Prisoners with AIDS had no job, educational
or programming opportunities.
. At least 20 states currently segregate
prisoners who have AIDS, despite the
absence of medical justification for the
practice. Approximately 14 states force
HIV testing, and six segregate all prisoners who test positive to the Human
Immunodeficiency (HIV) test, which reflects exposure to the virus known to
cause AIDS.
In our view, the worst scenario in
corrections today is the system which
requires HIV testing, then segregates
those whose test results are positive.
Many medical administrators admit that
segregation is more for the appeasement
of state legislators than for penological
or medical purposes.
The most progressive, informed response to the AIDS epidemic is a system
which offers voluntary testing and counseling for seropositive prisoners, mainstreaming seropositive prisoners and
those with AIDS into the general prison
popUlation until they become ill. There
is a slow but growing trend in this direction. Arizona and Colorado have now
begun mainstreaming after segregating
for several years. Georgia is beginning to
move towards mainstreaming HIV-positive prisoners in some of its institutions.
Some more enlightened health educa-

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

tors and prison administrators have recognized that the only way to combat
AIDS and HIV infection in prison is
through education and counseling. However, letters received at the National
Prison Project from hundreds of prisoners around the country and from
many AIDS activists clearly reveal that
neither the Bureau of Prisons nor the
state departments of correction are
doing an adequate job on either count.
. Some prisoners complain that their
AIDS education program amounts to distribution of the Surgeon General's pamphlet on AIDS. Others say that the one
video they are shown is already out of
date. Counseling and support groups are
almost nonexistent in prisons and jails.
Prisoners point out that there are no
educational sessions for those already infected with HIV.
A recent National Institute of Justice
report, Update 1988: AIDS in Correctional
Facilities, stated that "only through regular live training can the persistent misinformation about AIDS be effectively
countered." Unfortunately, since 1987
there has been little movement in that
direction by state corrections officials.

Prisoners Form Self-Help Groups
In response to the need for meaningful
AIDS education, groups of prisoners in
institutions across this country are beginning to develop their own AIDS education and peer counseling programs:
• Prisoners in New York State, which has
the largest number of HIV-positive prisoners and prisoners with AIDS, were
the first to come together to develop
these programs. The New York State
prison system does not conduct mandatory HIV testing but offers voluntary
testing with some counseling. While it is
impOSSible to know exactly how many
prisoners in New York State are HIV-infected, a blind seroprevalence study (to
determine what percentage are HIVpositive) conducted in 1988 found that
17% of the men entering Brooklyn's
Downstate Correctional Facility were
seropositive. Corrections health educators and peer counselors believe that
number to be much higher since many
people entering the prison system are IV
drug users.

• Members of Hispanics United for Progress and other prisoners at Green Haven

Correctional Facility in Stormville, New
York, have formed their own Health
Crisis (AIDS) Action Committee in response to the AIDS epidemic. This committee has been instrumental in develop-

ing peer counseling, buddy programs and
risk reduction sessions. The Green Haven prisoners have hosted two AIDS
seminars at the facility. The most recent
one was held in June 1989 on the critical
topic of medical clemency for prisoners
with AIDS.

• The AIDS Counseling and Educational
Program (ACE) is a project developed by
women prisoners at Bedford Hills Correctional Facility in New York. The
women of ACE are actively involved in
education, peer counseling and buddy
support services. ACE also prOVides legal
assistance and has incorporated a "creativity workshop" into their activities.
Prisoner-run programs face an uphill
battle. Prison and jail administrators have
not generally welcomed theseeducational initiatives on the part of prisoners.
In one instance, the prisoner-organizer
of an AIDS education program was abruptly transferred to another prison. In
another case, the AIDS education program was forced to go underground for
over a year because of political pressure
from the state administration. At an East
Coast adult diagnostic center for men, a
group of prisoners had their AIDS educational material from the Centers for
Disease Control confiscated by prison
authorities who insisted it was
contraband.
Despite these obstacles, many programs are now off the ground and running, and can begin to serve as examples
for prisoners and health educators
around the country. As Cruz Salgado, a
prisoner at Green Haven wrote, "I think
it's time for society and prison administrators to recognize the concerns and
efforts of prisoners and our willingness
to do what staff can't, won't, or are unprepared to do. I have made that commitment to the cause of alleViating the
grueling effects of this 'monster.' I invite
all prisoners to unite in the struggle
against AIDS in prison and help calm the
echoing scream of frustration, despair
and fear of our fellow PWAs (people
with ~!DS) within the 'belly of the
beast.
;]

.... , '1 '-\ I.',Ii"'.') 0"
' ' • j 1. • ~

I

"

1

.,' J
.,

.1."

•

I
'I

i

• Alvin J. Bronstein, executive director of the National Prison Project, has
been awarded a MacArthur Foundation
Fellowship. The fellowship was given to
Bronstein for his significant contributions
in the development of prisoners' rights
and correctional case law. Bronstein has

headed the National Prison Project since
1972.
The PACT Institute of Justice has
•
published a new resource list. Published
by the Institute since 1982, "Resources"
provides information on useful books.
video tapes, and research reports covering such areas as crime victims, prison
overcrowding, community-based correc. tions programs, alternatives to incarceration, and victim-offender reconciliation
programs. Those who find the list helpful
include practitioners within the crimina!

justice system, educators and students,
as well as the general public.
Copies of "Resources" are available
by contacting the PACT Institute of Justice, 254 S. Morgan Boulevard. Valparaiso, Indiana 46383, 219/462-1 127. Multiple quantities are also available, free
upon request.
• The Centers for Disease Control has
released recommendations for the prevention and control of tuberculosis in
correctional institutions. These recommendations were developed to assist

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 in$titutions within the state. Lists
only cases which deal with
overcrowding and/or the total
conditions of confinement.
(No jails except District of
Columbia.) Periodically updated. $3 prepaid from NPP.

The National Prison
Project JOURNAL,
$25/yr. $21yr. to prisoners.

QTY.COST

health care workers involved in screening. treatment. prevention and control
of tuberculosis in correctional facilities.
The incidence of tuberculosis in prisons
and jails is much higher than among nonincarcerated adults. Furthermore, the
transmission of tuberculosis among inmates presents a health problem in the
community upon the inmates' release.
For copies of the recommendations,
contact: Ms. Landis Brown, Technical Information Services, Center for Prevention Services, Mailstop E-06, Centers for
Disease Control, Atlanta, GA 30333.

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

The Jail Utigation. Status
Report gives a state-by-state
listing of cases involving jail
conditions in both federal and
...-A state courts. The Report cov-y-> 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.

~

The Prisoners Assistance
Directory, the result of a national survey, identifies and describes various organizations
and agencies that provide assistance to prisoners. Lists
national, state, and local organizations and sources of assistance including legal, library.
medical. educational, employment and financial aid. 8th Edition, published December
1988. Paperback, $25 prepaid
from NPP.

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

~

Offender Rights Litigation:
Historical and Future 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.

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

~

Fill out and send with check payable to

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

QTY.COST

I
~

AIDS in Prison Bibliography lists resources on AIDS
in prison that are available
from the National Prison Project and other sources, including corrections policies on
AIDS. educational materials.
medical and legal articles, and
recent AIDS studies. 31 pages.
$5 prepaid from NPP.

I

AIDS in Prisons: The Facts
for Inmates and Officers is
a simply written educational
tool for prisoners. corrections
staff. and AIDS service providers. The booklet answers in an
easy-to-read format commonly
I asked questions concerning
~ the meaning of AIDS, the
~ medical treatment available. le~ ~ gal rights and responsibilities.
Sample copies free. Bulk orders: I00 copies/$25. 500 copies/$IOO. 1,000 copies/$150
QTY. COST
prepaid.

NAME

_

ADDRESS

_

CITY.STATE,ZIP

_

FALL 1989

IS

The following are major developments
in the Prison Project's litigation program
since June IS, 1989. Further details of
any of the listed cases may be obtained
by writing the Project.
Baraldini v. Thornburgh-The D.C.
Circuit Court of Appeals reversed the
District Court's opinion and held that
prison officials could consider prisoners'
political affiliations in determining assignments to the high security facilities.
Harris v. Thigpen-This case challenges the Alabama Department of Corrections' program to test all prisoners
for HIV antibodies, and to segregate
those who test HIV-positive. The second
phase of a two-part trial was held in
Montgomery, June 12-26, and covered
medical and mental health care for HIVpositive prisoners, the HIV testing program, and housing segregation and program exclusion policies.
Inmates of Occoquan v. Barry-This
case challenges the conditions of confinement at the District of Columbia's Occoquan prison facilities. On June 30,
1989, the district court, on remand from
the court of appeals, issued an opinion
and order, holding the facilities to be unconstitutional, as it had in its 1986 opinion, and ordered defendants to develop
a plan to remedy violations. The court
also ordered the removal of asbestos
from living areas.
Knop v. Johnson-This is a statewide
Michigan prison conditions case in which
defendants have appealed a decision favorable to us. In August, we argued the
merits of the case in the Sixth Circuit
Court of Appeals, addressing all issues
including racism, winter clothing, toilets
and legal access.

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

16

FALL 1989

Palmigiano v. DiPrete-This case
challenges conditions in the Rhode .Island
state prison system. On August 17,
1989, the First Circuit affirmed "in all
respects" two district court rulings, the
first of which in October 1988 found
defendants in contempt for violating earlier orders limiting population; and the
second, dated April 1989, imposed fines
of-$289,OOO on state officials to be used
to {:reate an Emergency Bail Fund.
Robinson v. Phelps-This case challenges conditions at the Orleans Parish
Prison in New Orleans, Louisiana. The
case was referred by the district judge
to a. magistrate who has decided first to

Electronic Monitoring

seek a speedy resolution on medical issues and also plans to recommend our
request for class certification.
Tillery v. Owens-This case, filed
against the Western State Penitentiary
in Pittsburgh, Pennsylvania, challenges
double-ceiling, environmental conditions
and improper housing of mentally ill inmates, among other issues. On August
15, the district court handed plaintiffs a
sweeping victory, abolishing double-ceiling, ordering mentally ill inmates to be
removed from general population, and
granting a favorable decision on all other
issues. We will be filing for attorneys'
fees soon. II

-continued from page eight

its impact will be to reduce the value of
these other alternatives and to inflate
the sentencing structures in the jurisdictions where this occurs. Ironically. the
long-range impact of such disproportionate applications would be to increase
correctional populations rather than reduce them."I'2
The recent research findings in Georgia are also significant in another way.
The Georgia researchers found that urine testing for drug use was far more effective in identifying offender violations
of the conditions of probation release.
Technological devices which focus on offender behavior which contributes to
criminality may be used more Widely in
coming years than monitors which simply record if someone is s6meplace at a
particular point. As criminal justice sys12Edmund B. Wuuer, "Testimony Before the As·
sembly Standing Committee on Correction and
Assembly Standing Committee on Codes," (AI·
bany. NY: The NYS Division of Probation and
Correctional Alternatives). (May 19. 1989). pp.3-S.

tems take a more proactive approach
toward substance abuse, interest in electronic monitoring may wane simply because its benefits, regardless of any of its
negative aspects, are few and its financial
costs are relatively hrgh. In Georgia, a
Governor-appointed commission is now
examining the use of alcohol and drug
treatment programs as an alternative to
incarceration.
In the meantime, electronic monitoring appears more symbolic than substantive. Although little evidence suggests
that these devices prevent or deter further criminality, they are seen, particularly by traditionally overcautious legislators and policymakers, as a method. of
insuring that community-based supervision can be safe. By arguing that electronic monitoring enables the expansion
of imprisonment into the community, little impetus .exists to change the nature
of how we speak about appropriate
criminal sanctions. Instead, this country's
firm reliance on incarceration remains
intact. a

Nonprofit Org.
U.S. Postage

PAID
Washington.

D.C.

Permit No. 5248