INSIDE.

• •

• Judith Magid
In Memory

p.2

• Arizona Settles-Again
Negotiation A Success

p.4

• Toxic Waste Comes Cheap
Will Inmates Pay?
p. 10
The editor welcomes comments from
reoders on moterial presented in the
JOURNAL, or o~ the topic of prisoners'
rights in general.
NUMBER 5, FALL,1985

ISSN 0748·2655

South Carolina Settlement
Limits Population,
Enforces Standards
Mark Kluger

On August 9, 1985, U.S. District
Court Judge C. Weston Houck provisionally approved a consent decree
negotiated between South Carolina and
attorneys representing approximately
9,000 state prisoners. The agreement,
awaiting court approval since January 8
when the parties came to terms, covers
all twenty-eight state prisons and ends
two years of negotiations.
South Carolina now joins approximately thirty-eight states under court

resulted from a cooperative process
which began shortly after the lawsuit
was filed. "By entering into this settlement, the state has commendably recognized that it has serious problems and
shown a willingness to take steps necessary to rectify them," said National
Prison Project Chief Staff Counsel
Steven Ney . To their credit South Caro-

lina officials chose the most efficient
remedy of negotiation so as to rapidly
implement change in the overcrowded
and overwhelmed prison system.
William Leeke, Commissioner for
the Department of Corrections, said:
"We decided it was better to negotiate
a settlement, and a lot less expensive. If
we defended the state prison system
before the federal court and lost, the
state would have lost its constitutionality
and its sovereignty."
The original lawsuit, filed in federal
court in 1981 by inmate Gary Nelson,
alleged that overcrowding fostered suicides, rapes, assaults and routine violence among prisoners. The system,
designed to house 7,000, currently holds
8,500 inmates. During the negotiations
attorneys for the plaintiff class focused
-continued on page 9.

A lone figure stands in the center of the tiered eel/blocks at the Central Correctional Institution in

Columbia, South Carolina.

Hlf we defended the state prison
system before the federal court
and lost, the state would have lost
its constitutionality and its
sovereignty. "
order and it is one of the few states in
, which a decree covers all prisons including work release centers and minimum
security facilities.
The court order requires an end to
triple-ceiling and most double-ceiling,
increased funding for health care, the
closing of two overcrowded and deteriorated prisons, implementation of contact visiting for most prisoners held in
segregation units, and the provision of
more full time, meaningful work and
program assignments. It will require
single-ceiling for all inmates in any type
of segregation status. Most importantly
the settlement promises to put an end
to chronic overcrowding by setting a
population ceiling on each institution.
The order is unique in that it
A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.

. . .- - - - - - - - - - - - - - - - - - - - - -

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_

Be A Friend: Join Prisoner
Visitation and Support
Prisoner Visitation and Support
(PVS), a nationwide assistance program
for prisoners in U.S. federal and military
prisons, is seeking additional volunteers.
PVS tries to meet the needs of prisoners through an alternative, interfaith
ministry which is separate from the
official prison structure. The focus is on
those prisoners who have acute need
for contact: prisoners serving long sentences, those in solitary confinement,
those without other visits, inmates of
maximum security prisons, and those
who are frequently transferred across
country from prison to prison.
For over 1,000 men and women
each year, PVS is the only trusted link
with the outside world. PVS visitors
offer friendship and help in many ways:
visiting regularly, obtaining study materials, communicating with prisoners' families, making legal referrals, or writing
letters of recommendation to the parole
commission. A special "suffering fund"
is available for small gifts to prisoners
such as books, art supplies, stamps, and
grants to families enabling them to travel
across the country to visit prisoners.
PVS is a unique ministry in many ways,
not the least of which is that they do
not impose their philosophy or religion
on the prisoners they see.
Prisoners' letters sum up PVS'
work: "lowe you much thanks for
sending the local visitor to see me....
PVS is wonderful to me, who like hundreds of others is too far away to
receive visits. Before he came here, I
had received one visit in over three
years. "
PVS makes regular visits to: Ashland,
KY'; Atlanta, GA; Butner, NC; Big
Spring, TX'; Bastrop, TX: Chicago, IL;
Danbury, CT; EI Reno, OK'; Eglin AFB,
FL; Englewood, CO; Leavenworth, KS';
Lewisburg, PA; Lompoc, CA; Lexington,
KY; La Tuna (EI Paso), TX; Marion, IL;
Morgantown, WV; Maxwell AFB (Montgomery), AL; MemphiS, TN; Norfolk,
VA'; New York, NY; Otisville, NY;
Petersburg, VA; Ray Brook (Lake Placid),
NY; Safford, AZ; Sandstone, MN; Springfield, MO; Seagoville, TX; Terre Haute,
IN; Talladega, AL '; Texarkana, TX; Terminallsland, CA; Boron, CA; Ft. Worth,
TX; Phoenix, AZ; Rochester, MN; Camp
Pendleton, CA.
•Special need for volunteers.

2 FALL 1985

"I want to thank you for the wonderful hours I spent talking with you.
Those times are the things I will remem-

ber about this place, and it is because of
people like you that some of us in here
will be able to live in a free society and
not go out hating everyone else."
If you are interested in becoming a
PVS visitor, or know of someone who
might be, please contact the PVS
national office: 150 I Cherry Street,
Philadelphia, PA 19102, (215) 241-7117.
PVS visitors are all volunteers and are
expected to ~isit at least once a month
and follow up on prisoner needs.

In Memory
The NPP mourns the recent death
of Judith Magid, a courageous and creative fighter for prisoners' rights. Although she had long been engaged in
important prison litigation, Judith was
perhaps best known for her innovative
work in obtaining constitutional rights
for women inmates, in the influential
case of Glover v. Johnson.
Judith, a Detroit lawyer and longtime colleague of ours, will be missed by
all of us at the NPP. The follOWing letter to her family from her clients in the
Glover case speaks eloquently of Judith
and her work:
Dear Neal, Kate, Mrs. Dorothy
Magid & family:
No floral arrangement could
ever be designed to exemplify the
color and fragrance that Judith
brought into the lives of her sisters
in bondage. Her persistent work
instilled hope in those who had been
forgotten and a new sense of pride

in those who had been scorned.
Though~udith's physical being
has left this world, her triumphant
spirit lives each time a woman prisoner is given access to a prison law
library, each time a woman prisoner
is allowed to earn a college degree,
and each time a woman prisoner is
permitted to be trained for a nontraditional female occupation.
We are deeply sorrowed by
Judith's premature passing, yet in
her few years with us she left
behind a legacy which can never be
surpassed.
We have decided that as a
token of our appreciation we will
finance the painting of a portrait of
our beloved Judith to be hung in the
Huron Valley Women's Facility law
library.
Yours truly,
Georgia D. Manzie
Mary A. Butler
Charmaine L. Cornish
Zarifa Shahid (Essie Henderson)
Marjorie Parsons
Lynn Gates

•

The National Prison Project of the
American Civil Liberties Union Foundation
1616 PStreet, N.W.

Washington, D.C. 20036 (202) 331-0500
ALVIN j. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

ADjOA A. AIYETORO
ELIZABETH R. ALEXANDER

EDWARD I. KOREN
MARY E. McCLYMONT
NKECHI TAIFA

URVASHI VAID
CLAUDIA WRIGHT

BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

JAN ELVIN
Editor. NPP JOURNAL

STAFF ATTORNEYS

SUPPORT STAFF
DAN MANVILLE
Research Associate
LYNTHIA SIMONETTE
SALAAMA WADUD

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

Hard-Fought Settlement
Reached in Hawaii Case
Mary E. McClymont

On the very day scheduled for commencement of an anticipated five week
trial, June II, 1985, the parties in Spear
v. Ariyoshi reached final agreement on all
substantive issues in the case. The following day a comprehensive consent
decree was entered for the court's
approval in Honolulu, Hawaii. Filed in
September of 1984, the complaint had
alleged unconstitutionality in a wide
range of environmental and medical conditions as well as correctional policies
and practices at two Hawaii prisons,
caused in large part by severe overcrowding. The National Prison Project
filed the suit in conjunction with the
ACLU of Hawaii Foundation.
In July 1984, at the behest of the
ACLU of Hawaii , NPP Director AI
Bronstein visited the state's overpopulated Oahu Community Correctional
Center (OCCC) as well as the Hawaii
Women's Correctional Facility (HWCF).
The HWCF then housed close to three
times its rated capacity. After his examination, Bronstein advised our local colleagues and state officials that in his
opinion certain portions of the facilities
were literally "unfit for human habitation" and overall they were far below
minimum constitutional standards. He
followed his visit with a letter to the
State of Hawaii which urged an amicable
resolution of the constitutional deficiencies and set out proposed remedies for
settlement, including a phased reduction
of the two prisons' populations as well
as the establishment of panels of mutually agreed upon experts to develop
plans to bring them into compliance with
the Constitution.
In a sharply worded response, the
State of Hawaii summarily rejected the
NPP proposals, claiming (as it continued
to do until the resolution of the litigation) that Hawaii's prisons, although
replete with problems, nonetheless met
constitutional standards. In fact, as late
in pre-trial discovery as April of 1985,
the state's own representative had even
conceded to the press that the prisons
were "barely legal."
Conditions at both prisons had been
scrutinized by the local press and even
the Reagan Justice Department for several years prior to the filing of Spear,
and for good reason. At the time of
trial, OCCC, which incarcerates both
pre-trial detainees and medium security
felons, had a population of over 1400
prisoners despite its rated capacity of

only about 680. Over 500 inmates in
the old cellblock, built in 1918, were
either double- or triple-celled in tiny 48
square foot cells or were jammed into
dormitories with men sleeping on the
floor and with just over 20 square feet
per inmate.
With no dayroom space inmates
remained in the old cellblock cells and
dormitories for virtually 24 hours a day,
with no more than 2 hours per week of
exercise and no regular outside programming or activities. Plumbing problems were serious and ongoing; rats
were seen in living areas. Toilets were in
short supply; sinks, showers, ventilation

Local ACLU attorney Dan Foley and Prison
Project attorney Mary McClymont stand in front
of the men's prison in Oahu, Hawaii.

and lighting were substandard. Lack of
adequate security supervision and blind
spots in the dormitories made inmate
fights and other violence commonplace.
Even the relatively new and welldesigned "modules" at OCCC, where a
large majority of sentenced prisoners
were housed, were fast deteriorating
with the massive stress placed on the
physical plant by overcrowding. Prisoners were triple-celled in most single
occupancy designed rooms, relegating
one man to sleep on the floor, often
for months at a time. Poor ventilation,
leaky plumbing, pervasive idleness and
limited outdoor exercise exacerbated
the overcrowding in these module areas
as in the cellblock. Lockdowns were frequent because of staff shortages.
Food services were totally overtaxed, with a kitchen designed for 500
attempting to serve close to 1500. The
medical care system was overwhelmed

with as little on-site physician coverage
as 9 to 12 hours per week. Inmates on
suicide watch were actually housed
naked with no bedding, mattress or
other belongings in empty concrete segregation cells without proper assessment, evaluation, or treatment. Other
mentally disturbed inmates at OCCC
were often double- or triple-celled in tiny
dark and dirty cells which defendants'
own staff and experts admitted were
totally inappropriate.
At the women's prison, inmates
were cramped into double-bunked dormitories with beds literally only inches
apart. A dayroom allowing only 10
square feet for each of the approximately 90 women in the main facility
was used for almost every function
including meals, visits and "recreation."
Hot water was rare and toilets, sinks,
and showers were in short supply. Medical care and food services likewise fell
below any acceptable standards.
Most egregious was the dungeonlike Detention Unit where cells were so
small that no bed would even fit. Plumbing leaked and ventilation and lighting
were substandard. Suicidal inmates and
mentally disturbed women were housed
in these tiny cells, a practice which even
defendants, again, agreed was unacceptable. Throughout both facilities, fire haz·
ards were numerous.
In the nine months following the filing of the complaint, extensive discovery
was undertaken by plaintiffs' counsel.
The court had immediately certified the
case as a class action in September.
Throughout the litigation, the NPP
lawyers were aided by ACLU of Hawaii
attorneys and had the excellent support
of a team of experts including medical,
psychiatric, environmental and
correctional specialists.
Despite plaintiffs' stated willingness
to attempt to settle mutually agreed
upon deficiencies, no serious response
to possible settlement came from the
state until late May. As both counsel in
Spear discussed mechanisms for settlement of the suit and initiated negotiations, they simultaneously prepared for
the imminent trial in the case.
Only three days before the scheduled trial date the first drafts for proposed settlement were exchanged by
opposing counsel and, following
"eleventh hour" negotiations, the final
details of the agreement were hammered out. Many of the remedies earlier
sought in Bronstein's letter to the State
of Hawaii, and more, were ultimately
incorporated into the consent decree.
Population caps were set requiring
reductions to begin October I, 1985,
and to be fully accomplished by December 1987. Specific population limits for
various living areas were also established,
-continued on next page.
FALL 19853

-continued from previous page.
along with restrictions on certain housing units for particular categories of
offenders, such as protective custody,
segregation, and the mentally ill.
The decree acknowledges that there
are serious problems in the areas of
medical and mental health care, environmental conditions, security staffing and
training, classification and inmate activity.
It employs a unique mechanism for specific remedy development and implementation. Three panels of nationally recognized experts were created to develop
plans by October I, 1985, to address
the needs and insure adequacy in these
areas. The experts will inspect the facilities, and monitor and report on
implementation of the plans every six
months. The experts include Patrick
McManus, former corrections
commissioner in Kansas; Jerry Enomoto,
former director of the California
system; Dr. Ronald Shansky, medical
director of the Illinois Department of
Corrections; Dr. Armand Start, medical
director of the Texas Department of
Corrections; Ward Duel, a public health
expert from Illinois; and Jerrold Michael,
dean of the School of Public Health,
University of Hawaii. A Hawaii
Corrections Department representative
will also sit on each panel. If

disagreements arise between the experts
or the parties, the decree requires that
the differences be first submitted for
mediation to Allen Breed, former
director of the National Institute of
Corrections (NIC).
Significantly, the state also agreed to
close down the old cellblock at OCCC
by 1988 unless it was fully renovated
and found to meet American Public
Health Association and American Correctional Association environmental
standards. Moreover, the state agreed
that by July I, 1985, the women's
Detention Unit would no longer be used
for any more than "time-out" housing
for a period not to exceed 48 hours. In
fact, this unit was closed by the state in
July. The decree's "corrections panel"
will furthermore determine whether the
unit may be used for any future housing
of prisoners.
Compliance is already moving ahead
as the experts begin to develop their
plans. Dan Foley, the Hawaii ACLU's
staff attorney, continues to work on the
case with the NPP. In a hard-fought case
like Spear, it is particularly encouraging
to see the cooperation displayed
between the parties post-decree, a key
ingredient for speedy implementation of
the long-awaited improvements in
Hawaii's prisons. •

Revived Settlement Halts
Trial in Arizona Case
Claudia Wright

In the premier edition of the JOURNAL, we included an article * which
expressed our optimism that settlement could be reached in Black v.
Ricketts, a case challenging conditions of confinement in the Administrative Segregation Unit, C8-6, of the Arizona State Prison at Florence. That
goal has finally been achieved, though not by the process so hopefully
described in the article.
During late September and early
October of 1984, attorneys for the parties had reached agreement on virtually
all the issues in the case. Just before the
hearing, set to present the settlement
agreement to the court, plaintiffs' counsel were informed that the settlement
agreement was being withdrawn by the
defendants because of shake-ups in the
Department of Corrections and
problems in the Attorney General's
Office. The assistant attorney general
who had participated in negotiations was
removed from the case, and private
counsel was hired to represent the
'Wright, Claudia. "Parties Move Toward
Settlement in Arizona." NPP JOURNAL 3 (Fall
1984): pA.
4 FALL 1985

defendants. The new trial date was set
for February 5, 1985.
PREPARATION FOR TRIAL
Following the withdrawal of the settlement agreement by the defendants,
Prison Project lawyers and local counsel
shifted into high gear to prepare for trial
which was now little more than three
months away. Numerous trips to
Phoenix were required to take over
forty depositions of institutional administrators and staff in November and
December. We prepared our clients for
their testimony and were present for
their depositions. Although many
experts had already made tours of CB-6
prior to the aborted settlement, tours
were arranged and completed for those

who had not. The court ruled that
depositions would not be taken of the
experts, so it was necessary to assist in
the preparation of written reports to
answer the discovery requests of the
defendants.
The defendants relentlessly attempted to pressure the court into granting a
continuance of the trial date by filing
many technical, complicated motions for
summary judgment and motions to dismiss directed to particular issues in the
case. The court consistently refused to
grant any continuances, and all motions
for summary jud'gment and dismissal
were heard and dismissed.

The "diet loaf," a disgusting mass
of chopped foods . . . was served
without utensils.
During January, the month before
the trial was to begin, logistical problems
became almost as important and timeconsuming as legal problems. Preparation
to move the four-person legal team
from the Prison Project to Phoenix for
an indefinite stay required that apartments be found and leased, automobiles
rented, and office equipment and supplies acquired. Mountains of documents
for trial exhibits were put in order and
shipped. During this period, as pressure
and bills mounted, we often felt as
though we were planning the D-Day
invasion of Normandy rather than simply
preparing a case for trial. But somehow
the first of February found everyone
settled into Phoenix, while struggling
against the clock to complete the final
preparation of testimony for expert and
prisoner witnesses, of documentary
exhibits, and the massive pre-trial order
for the court. On the fifth of February
we were ready to go.
THE TRIAL
This case included most of the traditional issues of big prison cases-unsanitary liVing conditions, inadequate food,
idleness, inappropriate classification, violence, and rats and roaches. However,
some unusual issues were also involved.
Isolation, rather than overcrowding, was
a major problem. Many prisoners were

Isolation, rather than overcrowding, was a major problem. Many
prisoners were allowed out of their
cells only 3 hours per week.
allowed out of their cells only 3 hours
per week. Sensory deprivation resulting
from virtually unrelieved isolation was
intensified because windows and doors
had been covered over with large plates
of solid steel. A brutally repressive
behavior modification program, which

included the use of a "diet loaf" as punishment, was challenged. The "diet
loaf," a disgusting mass of chopped
foods, was compressed, shaped into
loaves, frozen, then microwaved and
presented as a meal in response to unacceptable behavior. It was served without
utensils. Perhaps the single most disturbing practice at issue in this case was the
use of abusive, mass rectal cavity
searches upon prisoners. Several
incidents in which every prisoner in
administrative segregation had been subjected to these searches occurred in the
spring of 1984. Many searches were
videotaped. Our job was to present
these awful facts in a way that would
bring the reality of life in CB-6 alive for
the judge.
Because of the unique issues
involved in the case, we presented testimony by a large number of experts. A
number of prisoner witnesses described
the day-to-day problems of survival in
this setting. Their testimony was graphic
and in many instances, intensely moving.
We entered hundreds of documents into
evidence which clearly outlined the defi-

ciencies in classification and programming, and also showed the inability of
the defendants to follow even their own
stated policies. A videotape of the many
abusive rectal searches was shown to
the court. We accompanied the judge
on a day-long tour of the unit, including
a climb up to the roof to inspect the
faulty ventilation system.

Solid proposals were carefully
drafted and agreed upon, only
then to be rejected out-of-hand by
the defendant administrators.
Much of the testimony was shocking. Our sanitarian testified that the
death of an inmate by fire which
occurred in the fall of 1984 could have
been avoided if the smoke alarm system,
improperly maintained, had been functional. Defense counsel, on cross-examination of the sanitarian, managed to
extract testimony that he would have,
given the authority, completely closed
down the food preparation areas. No

How the West Was Won, Part II
Betsy Bernat
We at the Prison Project are hovering over the phones. We are waiting for
Hollywood to call. Such a story we have
here, so much drama, the studio heads
should be mauling one another to reach
us first.
Black v. Ricketts, our case challenging conditions in Arizona state
Prison's Cellblock 6, could be Hollywood's next big hit-um, a "block"buster if you will; a Western for the
Eighties. It can be called Settlers. Or
better yet, How the West Was Won,
Part II.
Cars are always good in movies and
we certainly had plenty of them in Arizona. For over two weeks, the state
insisted on escQrting our two inmate
witnesses 75 miles from the prison in
Florence to the courtroom in Phoenix
with a police car both in front and
behind the van in which they were riding. We're speaking here of inmates
who were wearing handcuffs and leg
irons. Now, just in case the van and
both police cars developed engine
trouble, or the inmates pulled a Houdini
and got out of the handcuffs, the leg
irons and the van (unnoticed by the folks
in the police cars), the state had
arranged for motorcycle escorts as well:
two in front of the entourage, and two
in back. Then, for the whole of the 75mile trip, the police cars ran their sirens
and flashed their blue lights, perhaps to

alert citizens that they had better lock
their doors and windows, lest the
inmates escape from their leg irons,
handcuffs, the van, the police cars and
motorcycle-escorts, or maybe because
they knew that there's nobody who
doesn't like a good parade and they
didn't want anyone to miss this one.
So much for the car factor. Sizzling
dialogue is also a must in the movies and
we suffered no shortage of it in Black,
thanks to the defendants' attorney. He
referred to the all-female "cast" of
Prison Project lawyers as everything
from "the gaggle of geese" to the
"gang of five," and that was when he
was feeling kindly. The legal procedures
of our "little gang of likeminded litigators" (also his term) were described
by him as "craven and despicable."
He contacted our lawyers at one
point by mail about some state documents we had not yet returned, writing,
"I sincerely hope that [you are] not
growing anything in those cartons."
In another letter to NPP counsel,
he wrote, "We must take you at your
word at this point," adding that doing so
was "a highly risky practice where you
are concerned." And, referring to our
attorneys' fees application, he commented that we should use not the lodestar method, but the "motherlodestar
method."
During an inmate deposition, he

administrator was willing to accept
responsibility for the rectal searches.
The Director of Corrections admitted
that he had never even bothered to
review the videotapes of the searches,
nor had any staff member been
disciplined in any way for the abusive
behavior.
The trial dragged on through February and March. Plaintiffs rested their
case on March 14. After a week-long
break, defendants began to present their
case on March 27. After only a few
days, it became apparent that defense
testimony was ~irected to show that
reforms which the plaintiffs were demanding were being put into operation.
The court became more and more impatient with this testimony, and questioned
the defendants as to why these issues
could not be settled without the agony
and expense of a trial with no end in
sight. The trial did in fact end abruptly
on April 1I, when the defendants
requested that settlement negotiations
resume.
-continued on next page.
refused to let prison officials serve
water to the NPP attorney, although
water was allowed the inmate. He also
tried to schedule his deposing of plaintiffs on the day after Thanksgiving,
thereby denying our attorneys a holiday
at home in Washington. The judge put a
stop to his scheme, however. At the
hearing to set the deposition date, he
remarked, "Isn't this hearing on
whether [the defendants' attorney] is
Scrooge or not?"
"Scrooge" didn't like us. His affection for the ACLU in general seemed, in
fact, a rung or so below non-existent.
"[This letter]," he corresponded, "has
been written in such a fashion as to limit
the possibility of misunderstanding of
position, that faithful old friend of the
ACLU."
In addition to cars, conflict, and
name-calling, the movie would also
include courtroom drama and highlights
from a trial that went on for over two
months and threatened to go on as long
as six months; a handful of exhausted
East Coast attorneys fighting a legal
battle on the deserts of the West; a
Department of Corrections official who
called off the negotiations on days when
he had golf tournaments; and the everfamous "diet-loaf," a bad imitation of
meatloaf which was served as
punishment to prisoners for periods of
21 days, three meals a day.
That's the story. The rest, Hollywood, is up to you. •

FALL 19855

..-----------continued from previous page.

SETTLEMENT
In many ways the month-long period
of settlement negotiations was more
frustrating than the seemingly endless
weeks of trial. The previously agreed
upon settlement document served as the
model for negotiations, but every word
was examined carefully. The real
obstacle to settlement soon became
apparent. The lawyers for both sides, by
now so intimately familiar with all the
issues, facts and law involved in the case,
found little about which to disagree.
Solid proposals were carefully drafted
and agreed upon, only then to be
rejected out-of-hand by the defendant
administrators. The prison administrators' lack of knowledge about the facts
of the case, the law, and correctional
practices in general-the new Director
of Corrections had no background in
corrections although he talked knowledgeably and endlessly about his golf
game-created a nearly insurmountable
barrier to settlement. The court had to
assign the duty of supervising negotiations to his magistrate. Real progress
began to occur only after the magistrate
insisted that the Director of Corrections be present at the bargaining table
to assure that final decisions could be
made on the spot. Settlement meetings
became a forum not only for typical
back-and-forth bargaining of the parties,
but for education of the prison administrators on generally accepted correctional practice and policy. Although this
procedure slowed negotiations to a
snail's pace, final agreements were at

last reached. A comprehensive settlement document was presented to the
court on May 9, 1985, one year and
three months after the initiation of the
lawsuit.
RESULTS
The court ordered final approval of
the proposed settlement on june 17,
1985. Substantial improvements were
mandated in all areas addressed by the
lawsuit. The "diet loaf" was outlawed.
Rules were clearly spelled out for classification and incentive systems. Use of
force, including rectal searches, was
ordered to be severely limited to only
emergency situations. Provisions were
made for improvement of living conditions, out-of-cell time, and programming. The implementation of the agreement will be monitored by Allen Breed,
former director of the National Institute
of Corrections, who will report regularly to the parties and the court upon
compliance.
The settlement agreement will undoubtedly result in major changes in
CB-6, improving the conditions of life
for the men there. It is unfortunate that
the agreement could only be reached
after months of expensive litigation.
Ironically, the final document is the same
in every major particular as the one
which had been agreed upon prior to
the trial. This case will be remembered,
if for nothing else, as a classic example
of the benefits of reasoned negotiation
and settlement, and the folly of hard-line
resistance to necessary, constitutionallyrequired institutional reform . •

Judge Bans Further Intake
of Prisoners at D.C. Jail
Steven Ney
The District of Columbia jail litigation took a dramatic turn on july 5,
1985, when Federal judge William B.
Bryant issued an order. finding the new
D.C. jail, opened in 1976, to be "massively" and "dangerously" overcrowded.
He banned further intake of prisoners at
the jail beginning on August 24, 1985,
unless the city reduced the population
below 1694. The ruling in effect set that
number as a permanent ceiling on the
jail's population.
The order marks the latest development in litigation begun in the early
1970's when conditions at the old D.C.
jail were first challenged in federal court
by the National Prison Project and the
Public Defender Service.
The court order sent local and federal officials scrambling and fingerpoint6 FALL 1985

On August 22, 1985, the District
of Columbia agreed not to
appeal the court's order setting a
limit on the jail, and to phase-in
the reduction in population to
1694 by November 22, 1985,
together with alternatives to
incarceration such as expanding
halfway house capacity, thirdparty custody programs, bail
review, and timely parole decisions. By September 23, 1985,
the jail population was down to
1877. If the District does not
reach or maintain the cap, the
court's original ban on .further
intake will be reinstated
automatically.

Prisoners took through celt bars at the D.C. Jail. Many inmat

ing in an effort to cope with the latest
chapter in the continuing crisis in the
District of Columbia's criminal justice
system.
At the time of the ruling the jail
confined more than 2600 prisoners in a
facility built for no more than 1355. The
population began exceeding that number
in 1980, exceeded 2400 in 1983, sparking a riot in several cellblocks, and has
continued to climb to its current level of
roughly 2600. Approximately 1400 of
the 2600 prisoners are convicted or sentenced misdemeanants and felons.
The judge imposed the population
cap to remedy the needless pain and suffering at the jail reflected by filth,
uncontrolled inmate upon inmate violence, and denial of essential medical,
dental and mental health services. These
conditions have "steadily worsened"
despite repeated court orders-without
a population limit-over the past decade.
In his first reaction, D.C. Mayor
Marion Barry stated that the ruling was
"unreasonable" and that he was
"shocked and appalled that judge Bryant
would seek to force the city government to put criminals on the street."
The following day he asserted that the
prisoners at the jail were technically in
the custody of the U.S. Attorney General and that "if a solution to the situation has not been found in cooperation
with the U.S. Attorney and the Attorney General and others . . . by the
deadline ... [I] will have no alternative
but to direct [Corrections Department
Director james F.] Palmer not to accept

r
tional psychiatry testified along with jail
officials and inmates about the deteriorating conditions and their adverse impact
upon the prisoners and staff. The order
states,

Time and again, defendants have
requested the court to defer to their
accumulated wisdom, to stay its hand and
to give them more time. Time and again,
these requests have been honored in the
hope and expectation that defendants
would solve these problems expeditiously
and effectively. However, instead of matters improving they have deteriorated. For
example, at the October 1984 hearing
defendants represented to the court that
the jail population, which had steadily risen
over the summer months, would fall with
the onset of winter. This did not happen;
in fact, the opposite occurred. The court
was further given to understand that a new
400 bed Department facility, which was
scheduled to open in late winter, would
reduce the jail population by 400. That
facility has opened, and is currently 20
persons shy of its design capacity-yet the
jail is still packed with record numbers.
must sleep in hallways because of crowded conditions.
any more prisoners." The Mayor apparently was trying to force the Federal
Bureau of Prisons to accept more D.C.
prisoners in addition to the 1400 already
in the federal system. The federal prison
system, however, is itself 38% over its
capacity and thus has little, if any, room
for more. The U.S. Attorney's office
(the prosecutor in D.C.) in its response
blamed the Mayor for not building
enough prison and jail space. The Chief
of Police and the Chief Judge of the
Superior Court indicated that they
would continue sending prisoners to the
jail as usual despite the ruling. No one
mentioned the fact that the District arrests, prosecutes and incarcerates large
numbers of petty offenders to placate
members of Congress from all over the
country (D.C. citizens haVing no representation in Congress) who control and
appropriate the"D.C. budget.

No one mentioned the fact that
the District arrests, prosecutes and
incarcerates large numbers of
petty offenders to placate members of Congress . . . who control
and appropriate the D. C. budget.
Judge Bryant's order came in
response to motions filed by National
Prison Project attorneys in 1983 to halt
the overcrowding crisis. At a week-long
hearing in 1983, and subsequent hearings, experts in the fields of corrections,
public health, medical care and correc-

The court emphasized that it was
forced to act because "for the most
part there is no indication of anything
except complacency" by the District of
Columbia Government. "[I]nstead of a
sustained drive against the effects of a
population crisis, defendants' efforts
have been sporadic, and largely unproductive, and conditions have steadily
worsened. "
In its 54-page opinion the Court
found that the "massive overcrowding"
has placed "unreasonable demands on
every jail resource both in terms of the
physical plant and personnel" such that
the ability to "provide essential services
has been seriously undermined" and that
living conditions at the jail are "dangerous. " The court found that violence
has reached "alarmingly high levels" as a
direct result of the overcrowding, with
many inmates living in constant fear of
rape or assault. Gymnasiums, dayrooms,
warehouses, and aisle space, are taken
up by beds, preventing recreation from
taking place. Facilities and services
•'which are ordinarily contemplated as
escape valves have been effectively
transformed into pressure points."
Because the population tripled while
staff remained constant in number or
even declined, the court found that the
jail failed to provide basic medical services. This amounts to "deliberate indifference to the health care needs of all
prisoners" and has caused "untold pain
and suffering." This indifference was
manifested by intolerable delays in access
to health care personnel, lack of training
and lack of supervision of non-professional medical and psychiatric staff, haphazard and ill-conceived administration
and organization, sloppy record keeping,

"screening" improperly delegated to
unqualified personnel, improper dispensation of prescription drugs, and a •'woeful lack of dental and psychiatric care."
These deficiencies, the court concluded,
are causing needless suffering and purposeless infliction of pain without any
conceivable penological justification, citing numerous incidents of gross and
wanton neglect which established a pattern of misconduct and malfeasance.
One inmate, for example, who complained of pains symptomatic of a heart
attack, had to wait two and one-half
weeks before bei~g seen by a physician.
The court noted that there is no intake
psychiatric screening at the time of a
prisoner's commitment to the jail, and
that staff shortages have forced entire
cellblocks to go without prescribed
mental health medications for days at a
time. Two suicides occurred at the jail
during 1983 which could have been
prevented.

The court found that violence has
reached "alarmingly high levels" as
a direct result of the overcrowding,
with many inmates living in constant fear of rape or assault.
The jail ruling has brought the longstanding population crisis into sharp
focus. There seems to be no place to
put the apprOXimately 900 prisoners
now at the jail in excess of the cap. The
federal prison system holds little
prospect for relief for the District
because it is already far over its
capacity. The D. C. facilities at Lorton
(Va.) are either under court imposed
population ceilings or are filled to capacity. Moreover, the District of Columbia
is facing pressure from Fairfax County,
Virginia officials not to confine more
prisoners at the Virginia site. In fact, the
"runaway overcrowding" at the jail
reflects the fact that all of D. C. 's
prisons are filled to or beyond capacity
and that the overflow has been warehoused at the jail.
The Prison Project, in response to
the ruling, agreed with the court's statement that the District of Columbia has
had years to develop alternatives to incarceration-such as bail reform and
parole changes-but simply has failed to
act. According to Prison Project attorney Mary McClymont, •'The District of
Columbia's only response in recent years
to the dramatic growth of prison population has been to build additional prison
facilities. But the District failed to develop alternatives to incarceration successfully used in other jurisdictions such as
work release, intensive probation, expanded good time, third party custody,

-continued on next page.
FALL 19857

-continued from previous page.
and bail reform. Now the District of
Columbia must pay the price of having
the country's highest incarceration
rate-approximately 800 per 100,000roughly four times that of any state.
This escalating incarceration rate at a
time when the crime rate has been going
down is the product of stiffer sentences,

tougher restrictions on parole, and the
increased use of imprisonment."
The Prison Project, along with
other groups in the District, has urged
that the court ruling be viewed as an
"opportunity for the District to finally
develop and rethink its approach to
crime and develop alternatives to prisons
which it failed to do over the past
decade." •

Bureau Continues Totalitarian
Measures at Marion
Adjoa A. Aiyetoro
For the past year, the National
Prison Project has been asking Congress
to look behind the veil of secrecy at the
United States Penitentiary at Marion,
Illinois. Marion, which was opened in the
1960's to replace Alcatraz, is the
"super-max" of the federal prison
system. It houses approximately 350
prisoners and contains the Control Unit,
the most secure prison unit in the
United States. A series of tragic deaths
occurred on October 22, 1983, when
two prison guards working in the
Control Unit were killed and then a
prisoner housed in the general
population. As a result, on October 28,
1983, the entire prison population was
locked down, confined to their cells 24
hours a day. The lockdown conditions
continue at Marion for a majority of
prisoners, almost two years after these
deaths, although those responsible for
the murders have been identified, and
the staff assailants tried and convicted.
Prisoners in the general population
are now confined to their cells approximately 22 hours per day. They are
allowed one hour out of their cells five
days a week for exercise and showers
on the tier, two hours per week exercise in the gym and two hours per week
outdoor exercise. They are allowed two
ten-minute telephone calls per month
and four two-b,our non-contact visits per
month. In addition they are allowed one
30-minute congregate religious service
per month, with fewer than 12 participating. The entire prison population is
now being punished for the acts of a
few.
Prior to the lockdown cells were
open virtually all day, meals were taken
in the dining halls, access to the main
law library was permitted 6 to 8 hours
per week, and five all-day contact visits
per month were permitted. Approximately 10 hours per week of gym or
outdoor recreation were allowed with
various types of recreational equipment
provided; phone calls were permitted
virtually every day.

THE LOCKDOWN
Several years ago a federal judge in
Rhode Island said that a lockdown is
" ... one of the most drastic and disruptive measures a prison can take. '"
To obtain more information, Prison
Project staff made three trips to
Marion, interviewing staff and over
thirty prisoners. They also met with
Norman Carlson, Director of the
Bureau of Prisons. A request to have a
penologist tour Marion and talk with
staff and prisoners was denied by the
Bureau.
To effectuate the lockdown correctional staff was brought in from other
federal prisons to supplement the staff
at Marion. Correctional officers were
outfitted in riot gear, complete with
jumpsuits, helmets with face masks, and
batons. Prisoners reported that officers
wore no name tags. These officers went
to each unit, removing prisoners from
their cells and then removing all the
prisoners' property. Prisoners allege that
many items, including religious and legal
materials, were never returned to them.
They also complained that during the
first month of the lockdown, serious
medical concerns went unaddressed.
In meetings with Norman Carlson,
Prison Project attorneys requested various reports, asked that he restate to
staff and prisoners regulations for use of
force, and, finally, requested that he
return the institution to pre-Iockdown
status. These meetings resulted in very
little action on his part. In National
Prison Project testimony before the
House Judiciary Committee's Subcommittee on the Courts, Civil Liberties and
the Administration of Justice, which has
oversight responsibility for the Bureau,
Congress was asked to investigate the
lockdown. The Subcommittee was asked
to determine whether the conduct of
the Bureau exacerbated the already
'Jefferson v. Southworth, 447 F.Supp. 179, 189 (D.
R.1. 1978).

tense atmosphere of such a high-security
institution.

1

CONGRESS' RESPONSE
The Subcommittee, chaired by
Robert Kastenmeier (D-Wisc.), responded to Prison Project requests for a
Congressional investigation by sending a
staff person to Marion to interview prisoners and staff, and by holding two
hearings on the lockdown (March 29,
1984 and June 26, 1985). The Subcommittee commissioned a report from
Allen Breed, Chairman, Board of Directors, National Council on Crime and
Delinquency, and David Ward, Chairman, Department of Sociology, University of Minnesota, concerning Marion.
At this time the Subcommittee is considering what further action it will take.
The report prepared by Breed and
Ward in December 1984 2 contained a
number of recommendations which the
Prison Project endorsed. In addition,
recommendations concerning use of routine digital rectal searches, the inaccessibility of the law library and use of
graded units have led to some changes in
Bureau policy.
The Breed/Ward Report suggests
that conduct of Bureau personnel
(routine digital rectal searches, the failure to allow certain groups to practice
their religion, the lack of access to the
law library, the creation of a special unit
for 40 prisoners who were previously
indistinguishable from the other general
population prisoners, and the force used
against prisoners during the lockdown)
created what they term the "combat
mentality" at Marion. The report did
not address, however, the adequacy of
the policies, procedures or practices
used by the Bureau in relation to the
deaths of the prisoner and two officers;3
the appropriateness of the policies, practices or procedures used in the lockdown; and failed to evaluate the overall
relationship between inadequate policies
and the potential for harm to staff and
prisoners. Breed and Ward conclude
that the lockdown should continue

'This report is available to the public through the
House of Representatives Judiciary Committee's
document room.
3Dr. David Fogel, penologist, appeared with the
Prison Project at the March 29, 1984 Subcommittee hearing. He was unable to provide the Subcommittee with a thorough analysis of security
procedures in operation prior to the lockdown
because of the Bureau's refusal to allow him, as
the Project's expert, to tour Marion, review security procedures and interview staff and prisoners. He was able, however, even with the limited
information available, to raise serious questions
about the adequacy of the security measures in
the Control Unit at the time of the murders of
the two correctional officers.

8 FALL 1985

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THE URGENT NEED FOR
HUMANE AND FAIR
TREATMENT
The rights of prisoners to fair treatment must not be officially ignored.
Frank Wood, Warden of the Minnesota
Maximum Security Correctional FacilityOak Park Heights, laid out sound correctional principles in the article appearing in the Summer 1985 JOURNAL:

Prison Project attorney Adjoa Aiyetoro testifying
on June 26, 1985, before Congressman Kastenmeier's Subcommittee about the repressive
lockdown at Marion Federal Penitentiary.

because the staff fears retribution from
prisoners whom staff has harmed. 4
Unfortunately the report failed to
conclude what are generally accepted
principles in corrections. To paraphrase
Vincent Nathan, the Special Master in
Texas and New Mexico and a national
authority on prison violence, who
reviewed the report: if you treat prisoners fairly and humanely, report on
errors in policies, practices and procedures and reprimand those staff who
violate policies and procedures, then
staff need not fear widespread
retribution. s
The Bureau's failure to conduct an
investigation of the lockdown and report
its findings (and Breed and Ward's support for a continuation of the lockdown
conditions without fully investigating
Bureau conduct or recommending further investigation), may undermine its
ability to prevent future violence and
creates the appearance of unfairness.
This appearance is enhanced by the fact
that reports, generally issued after a
problem of some magnitude occurs in
prisons, discuss"hot only the acts of
prisoners which led to the problem but
also the errors or weaknesses in the
prison administration which created a climate for the occurrence of violence or
which made the violent confrontation
worse. Such reports were issued after
the Attica uprising in 1971, the New
Mexico rebellion in 1980, and the
escape of a number of prisoners from
death row at the Mecklenburg Correctional Center in Virginia in 1984.
4Breed and Ward attribute their failure to conduct
a comprehensive investigation and discussion on
these issues to the limited amount of time allotted to them (10 days) by Congress.
sin a telephone conversation in January of 1985.

We are responsible for maintaining an
environment which is conducive to and
encourages the rehabilitation of those
inclined to change, through emphasis on
control, accountability, sensitivity and
responsiveness to the real and imagined
concerns of inmates and staff.
To be consistent with this goal and to
follow through on the "sensitivity and
responsiveness" that is part of that goal,
we continually strive to ensure that inmates
will be treated the way we would like to
see a close relative or friend treated if he
were incarcerated.

In his testimony before Kastenmeier's Subcommittee, nationally recognized prison psychiatrist Frank Rundle
stated, "[H]olding inmates in locked cells
for 23 hours daily allowing very little
opportunity for physical activity, no
program or work participation, no open
visiting and severely restricted communi-continued from front page.
on relief of overcrowding as the key to
progress. Lawyers from the Prison Project, Christine Freeman, from the Southern Prisoners Defense Committee, and
Gaston Fairey, local counsel from
Columbia, South Carolina participated in
the settlement.
"Hopefully, the court order will
lead to significant changes in the way the
prisons are run so they will be safer for
prisoners and staff," Ney said. "And if
implemented, prisoners will be provided
with more activity and education so
when they come out at least they're
not any worse than when they came
in."

The state plans to construct a new
facility to replace the Midlands
Reception and Evaluation Center and
Annex in Columbia. The court order
requires the closure of this prison. The
Annex has eight or nine men in cells of
144 square feet. The Reception and
Evaluation Center has triple-ceiling in 35
square foot cells.
The decree establishes a panel of
mutually agreed upon experts to evaluate staffing and other needs in the critical areas of security and medical and
mental health care.
Dr. Robert L. Cohen, M.D., a
member of the three-person medical
team which conducted an inspection of
the Midlands prison, termed the overcrowding "dangerous" ... ''This

cation with family, little opportunity for
interaction with peers, and no
acceptable means of expression of anger
in many leads to a sustained state of
rage, and resentment and preoccupation
with thoughts of violent vengeance
against institutional staff, and the society
at large."
CONCLUSION
The National Prison Project believes
that all general population prisoners who
have not had an individual determination
that they are in need of restrictive confinement should ~e returned to pre-Iockdown mobility. The Project has also
requested that the Subcommittee on
Courts, Civil Liberties and the Administration of Justice appoint a Board of
Inquiry composed of persons with no
prior relationship to the Bureau of
Prisons to assess the relative responsibilities for the violence which occurred
during the lockdown. In the alternative
we have asked the Subcommittee to
hold hearings at Marion to address this
issue in the hope that some daylight be
allowed to pierce the veil. •

For further information on the history of
Marion, see "The Lessons of Marion," an
analysis by the American Friends Service
Committee, Criminal Justice Program,
150 I Cherry St., Philadelphia, Pa. 19102

situation has serious medical and security
implications," Cohen said.
The court order adopts and incorporates many recommendations made by
the medical team for improved health
care throughout the system. Significant
increases in staffing include the addition
of physicians, registered nurses, physicians' assistants, and psychologists.
Improved procedures for medical emergencies and the dispensing of prescription medications will be implemented.
Dr. Cohen, Dr. Charles A. Rosenberg,
M.D., and Bonnie Norman, R.N.,
M.P.A., the members of the mutually
appointed panel of medical experts, will
continue to play a role in supervising and
reviewing the changes in health services.
Other plans required by the court
order include the development of a
comprehensive classification scheme, the
advent of programming providing not
less than five hours per day, five days a
week of meaningful activity (including
prisoners in protective custody status),
adequate staffing to end a practice of
allowing prisoners to supervise other
prisoners and a minimum requirement of
40-50 square feet per inmate sleeping
space.
The decree contains a provision for
a new approach towards resolution of
future disputes over compliance. The
parties have agreed that any disputes will
-continued on next page.
FALL 19859

____________________________________________________
lR
nellll!·

-.l'

-continued from previous page.
be submitted in the first instance to a
mediator, Allen Breed, former Director
of the Justice Department's National
Institute of Corrections. Only if that
effort is unsuccessful will the dispute be
submitted to the court and then Mr.
Breed's findings of fact may guide the
court in finding resolution.
In stating that "the settlement represents a fair compromise of difficult
issues," Steven Ney noted that "by set-

ting population limits on each institution,
and requiring compliance with minimum
standards in virtually all areas governing a
prisoner's day-to-day existence, we are
hopeful that humane conditions will soon
be established within South Carolina's
prisons." •

Mark Kluger is a third-year law student at
Cornell University in Ithaca, New York who
did an internship at the Prison Project this
summer.

Private Prison Planned
on Toxic Waste Site
Jody Levine
The prisons-for-profit movement
originated in part as a response to the
problem of overcrowded prisons and
jails in this country.
Governments and localities have
been faced with lawsuits (challenging the
constitutionality of inhumane conditions
often due to overcrowding), rising construction costs, and a public unwilling to
underwrite the costs for its "Iock-emup" mentality. The dilemma has not
gone unnoticed by the private sector.
Indeed, the "privatization" of corrections has become, in the short space of
three years, a fast-growing industry.
Although there is no evidence that any
money has yet been made, the bloodhounds are out. The idea of making a
profit on the backs of prisoners may
seem unsavory to many, but former
corrections administrators have flocked
to the new industry, seeing it as a
chance to use their expertise in corrections while earning a profit at the same
time.
Buckingham Security, Ltd., is one of
the new private sector firms. The Buckingham corporation was founded by
Charles Fenton, the former warden of
the Federal Penitentiary at LeWisburg,
Pennsylvania, and two other federal
prisons, and his brother, Joseph, a Pennsylvania businessman. In 1980, a federal
jury found Charles Fenton liable for
inflicting cruel and unusual punishment on
two inmates, who were subjected to a
beating with ax handles while they were
handcuffed and in shackles, during his
tenure as warden at LeWisburg.
Buckingham planned to build and
operate a $15 million, nO-bed mediummaximum security, interstate protective
custody prison in North Sewickly, Pennsylvania. The Pennsylvania state legislature is, however, currently considering a
bill to impose a moratorium on the
operation of private prisons until many
questions concerning their operation can
be answered.
10 FALL 1985

The spectre of a prison built on a
toxic waste site illustrates the concern so many people have about
private prisons falling through the
cracks of accountability and
regulation.
Although the matter of the moratorium will not be settled for awhile, the
uncertainties it has caused have put the
Buckingham prison on hold.
That should be good news for the
720 prisoners who are the future residents of the North Sewickly facility. The
Fentons, who plan to spend $1 5 million
to build the prison, bought the

The following comments on the dangers
of cadmium and cyanide in waste were
drawn from an interview with Chuck
Morgan, environmental health scientist
and chief of the Health Science Section,
Office of Waste Program Enforcement
of the Environmental Protection Agency.
"Cyanide is probably more
acutely hazardous than chronically
hazardous. Acutely means something
causing an immediate response,
normally ... death. Cyanide is the
pellet they use in gas chambers . . .
"Exposure over long periods of
time to very low levels of cyanide by
any route causes enlargement of the
thyrOid gland in humans.
"Cadmium would more than
likely be acutely and chronically
hazardous.
"There is suggestive evidence in
scientific literature linking cadmium to
cancer of the prostate glands in
humans . . . lung cancer in rats . . .
kidney disfunctions . . . defects in the
fetus and other kinds of reproductive
effects."

site for $1. The deed transferring the
land to Buckingham states: "A portion
of Parcel No. I has been used for the
disposal of hazardous wastes which were
principally cadmium and cyanide and
other electroplating and cleansing
sludge." The spectre of a prison built on
a toxic waste site illustrates the concern
so many people have about private prisons falling through the cracks of
accountability' and regulation.
The land was once occupied by
Townsend Fastening Systems, part of
the Townsend Division of Textron. The
plant manufactulied nuts and bolts using
several chemicals and cleaning agents in
the process.
In 1984 Textron transferred the
land to the Beaver County Industrial
Development Authority which turned it
over to Buckingham (at the $1 price)
for a prison.
Before it gave up the land, Textron
hired D'Appolonia Waste Management
Services, which specializes in hazardous
waste cleanups, to look over the site.
Its report describes the waste disposal
area as a 40 by 60 foot shallow pit, a
man-made lagoon filled three feet deep
with 350 cubic yards of sludge containing a high concentration of cyanide and
cadmium and other contaminants. The
report said, "this waste is characterized as hazardous under Resource
Conservation and Recovery Act (RCRA)
regulations. "
Mack Wilson, vice president of
administration, Townsend Division, Textron, said that when his company transferred the land it also transferred
responsibility for the cleanup.
"We transferred the land for a dollar and we were transferring it in 'as is'
condition. That's to be cleaned up by
them (Buckingham) if and when they get
into construction of a prison."
Mark Russell, a solid waste specialist
for the Bureau of Solid Waste Management, Department of Environmental
Resources in Pennsylvania, agrees that is
Buckingham's responsibility.
"They promised us verbally they
would clean up the site," he said. He
said Buckingham also promised to give
the DER a written plan from a consultant as to how the site would be cleaned
by April 15, 1985.
Buckingham has yet to turn in this
report. "We're having a little trouble
knowing what Buckingham Security is
doing about that site," Russell said.
Joseph Fenton, when contacted, said
he did not believe the property to be
dangerous, "but I don't think I'd want
to grow a vegetable garden on it."
"It can be cleaned up and it will be
cleaned up. If someone wants to ignorantly make an issue out of this they
can." He said he had talked "with several people" about a cleanup but would

not specify who or offer any estimates
on cleanup costs.
In March 1984, D'Appolonia was
acquired by IT Company of Philadelphia,
also in the hazardous waste business.
According to Leo Brausch, manager of
project development for IT's northeast
region, an attempt was made to keep
D'Appolonia's involvement alive.
Brausch said, "At the time of the transfer of property from Townsend
Textron to Buckingham I contacted Mr.
Fenton indicating our interest in pursuing
the project with them now that Townsend Textron was no longer involved.
I've not heard from him since."
The cleanup, according to Brausch,
would be expensive. "What's done
these days is to de-water the material

Joseph Fenton . . . said he did not
believe the property to be dangerous, "but I don't think I'd want to
grow a vegetable garden on it."
and add a cementing agent and then dispose of it in a secure landfill licensed to
take these materials. There are no such
facilities in Pennsylvania." He estimated
the total cost at $350,000. Besides the
costs, which have doubled in the past
year, another problem is that very few
places are licensed to take such waste,
he said.
Robert Zapsic, director of the
Beaver County Industrial Development
Authority, said that as part of an agree-

ment between Buckingham and his organization Buckingham is obligated to clean
up the lagoon "within 18 months of the
time of the transfer."
Who has authority in the matter?
Amy Kelchner, spokesperson for the
Pennsylvania Department of Corrections, said, "If it were a state facility,
we certainly would be concerned about
the grounds where the facility is
located." And for a private prison?
"There is nothing in our legislation
which gives anyone authority on what to
do." •

lady Hart Levine is a 3rd year law student
at the Antioch School of Law, Washington,
D. C. lady did a summer internship here at
the NPP.

QTY. COST

the state of the law on various
prison issues (many case citations). 24 pages, $2.50 prepaid
from NPP.

The National Prison
Project JOURNAL,
$15/yr. $2/yr. to prisoners.
Back issues, $1 ea.
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. 6th edition, published January 1985. Paperback,
$15 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

nesses, class actions, attorneys'
fees, enforcement, discovery,
defenses' proof, remedies, and
many practical suggestions.
Relevant case citations and correctional standards. Ist edition,
February 1984. 180 pages,
paperback, $15 prepaid from
NPP.

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

The Jail Litigation Status
Report gives a state-by-state
listing of cases involving jail conditions in both federal and state
courts. The Report covers
unpublished opinions, consent
decrees and cases in progress as
well as published decisions. The
Report is the first nation-wide
compilation of litigation involving jails. It will be updated regularly by the National Jail Project. 1st Edition, published September 1985. $ I5 prepaid from
NJP.

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.

ACLU Handbook, The
Rights of Prisoners. A gUide
to the legal rights of prisoners,
pre-trial detainees, in questionand-answer format with case
citations. Bantam Books, April
1983. Paperback, $3.95 from r,."'·" ,,',/,1
ACLU, 132 West 43rd St.,
New York, N.Y. 10036. Free
to prisoners.

A Primer For Jail Litigators
is a detailed manual with practical suggestions for jail litigation.
It includes chapters on legal
analysis, the use of expert witL . . - _......_ . . J

Fill out and send with check payable to
The National Prison Project
1616 P Street, NW
Washington, D.C. 20036

NAME

_

ADDRESS
CITY. STATE. ZIP

_

FALL 1985 II

1Illillllllll.
The fol/owing are major developments
in the Prison Project's litigation program

since April 15, 1985. Further details of
any of the listed cases may be obtained by
calling or writing the Project.
BLACK V. RICKETTS - This case
challenges conditions of confinement in
the Administrative Segregation Unit of
the Arizona State Prison in Florence.
On May 9 we reached a comprehensive
settlement which was approved by the
court.

lenges conditions of confinement at
D.C. 's juvenile facilities. In April we
joined this lawsuit with the Public
Defender Service of D.C. after several
years of unsuccessful negotiations with
the District government.
RAMOS V. LAMM - This case challenges the totality of conditions at the
Colorado State Penitentiary. In June we
received $150,000 for our share of the
interim fee award. Additionally, the
court awarded us $1,050,000, less the
interim award, on the entire fee claim.

BROWN V. SIELAFF - This case challenges conditions and practices at the
super-maximum security prison, Mecklenburg Correctional Cer~ter, in Virginia.
In July the court approved the settlement agreement, abolishing the prison's
behavior modification program and
affecting a wide range of conditions and
practices.

SHRADER V. WHITE - This case
challenges conditions of confinement at
the Virginia State Penitentiary in Richmond. In Maya Court of Appeals panel
affirmed in part and remanded in part
the Magistrate's decision to dismiss the
case. Our petition for rehearing en banc
was rejected.

DURAN V. ANAYA - This is a statewide prison conditions case in New
Mexico. The Special Master issued his
report on PNM finding the defendants in
non-compliance with the court order in
the areas of classification, discipline and
staff training.

SPEAR V. ARIYOSHI - This case
challenges conditions at two Hawaii
prisons. The day trial was to commence
we reached a settlement agreement
which includes population limits, expert
panels to develop compliance plans and a
mediator in the event of disputes.

FLiTTIE V. SOLEM - (reported as

TERRY D. V. RADER - This action
challenges conditions in six juvenile institutions in the state of Oklahoma. The
court established plaintiffs' lawyers as
prevailing parties in the case and therefore our right to reasonable fees.

Codyv. Hillard) - This case challenges
a variety of conditions at the South
Dakota State Penitentiary. In April the
Board of charities approved the settlement, with the exception of the doubleceiling provisions. We continue to discuss settlement of the remaining issues.
JERRY M. V. D.C. - This action chal-

U.S. V. MICHIGAN - This case challenges conditions in the entire Michigan
prison system. In June the Judge

National Prison Project
...

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

We've moved! Note new address, above.
12 FALL 1985

announced his intention to appoint a
special master to monitor compliance
with the consent decree.

During this period the National Prison Project received $345,321 in attorneys' fees

and costs, in the various cases. These fees
and costs help "ake up part of the Prison
Project budget and enable us to continue
our work. •

National Jail Project
Status Report Released
The National Jail Project of the
ACLU Foundation announces the publication of its Jail Litigation Status Report.
The I20-page report is the result of a
two-year effort to identify and collect
information and materials on local jail litigation efforts from across the United
States. The Report reveals the nature
and extraordinary scope of court efforts
to bring the Constitution to American
jails.
The Report contains a state-by-state
listing of all the jail cases known to the
Project. For each case listed, the Report
provides a brief description of the issues
presented by the case, the course of
proceedings before the courts and any
judicial remedies issued.
Persons who have information and
materials about cases not listed in the
Report as well as updated information on
cases already listed are urged to contact
the Project.
The Jail Litigation Status Rep.ort is
available from the National Jail Project,
1616 P Street, Washington, D.C. 20036
at a cost of $15.00 prepaid.

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U.S. Postage

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