A PROJEG OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOl. 5, NO.2, SPRING 1990 • ISSN 0748-2655

Juvenile Justice: Is There a Better Way?
ost national and local attempts to
reduce juvenile criminal activity
by locking kids up have failed.
Young people are more alienated than
ever, especially in the inner cities where
economic inequality and social impoverishment are so marked. Our educational
and health care systems are inadequate,
we lack job training programs for disadvantaged youth, and we are in desperate need of meaningful drug treatment
programs. When kids get into trouble, we
send them miles away from home, cut off
from family, to live in overcrowded and
understaffed institutions. They are often
locked in cells because there are not
enough people to supervise them. Under
this system, there really is no such thing
as juvenile "justice."
The government offers, as Business
Week magazine has pointed out, "too
many promises, too little help" to
children and families. Ironically, those
candidates who run most vociferously on
a "pro-family" platform are those who
offer little more than rhetorical suppport.
Note these disturbing statistics:
•African American, Hispanic, and
Native American youth are overrepresented at all stages of the juvenile justice
system;
•African American babies die at twice
the rate of white babies;
•African American, Hispanic, Asian
American, and Native American youth
are incarcerated in detention facilities
and public training schools at rates of
three to four times those of whites.
According to recent studies, more youth
are being locked up in institutions in the
juvenile justice, child welfare, and mental
health systems than ever before. Overcrowded facilities may be linked to the
increase in suicides by minors in detention.
In this issue of theJOURNAL, we focus
on several states where advocates have

M

sought to reform the existing system.
James Bell of the Youth Law Center
writes about the continuing problem of
juveniles being held in adult jails, where
physical and emotional abuse and
lengthy periods of solitary confinement
are common.
Steve Novick of Legal Aid of Western
Oklahoma outlines the history of the
complex and often bitter Terry D.
litigation, which sought to deinstitutionalize the child care system in Oklahoma.
Improvements have been made since the

lawsuit was filed, and despite a few
setbacks, a system once characterized by
abuse and mistreatment of children now
stands improved.
Advocates in Hawaii used a coalition
approach to convince the state to adopt
policies which would bring a measure of
sanity to its juvenile system. Dan Macallair, former head of the Hawaii Youth
Advocacy Project, tells how the state,
wary of further litigation by the ACLU,
cooperated in creating a model for
deinstitutionalizion of juvenile detention.

-JE.

TERRY D. v. RADER

Bitter Legal Combat Leads
Oklahoma Out of Dark Ages in
Care of Juveniles
BY' STEVEN A. NOVICK

etween 1977 and 1984, the state of
Oklahoma underwent cataclysmic
changes in the way it handled delinquent youth and status offenders
coming into state custody. These sweeping reforms were largely wrought by
Terry D. v. Rader, a civil rights class
action challenging both the widespread
abusive conditions of confinement in
Oklahoma's institutions for children and
the state's total failure to develop a
system of less restrictive communitybased services for youth.
Lawyers from the National Prison
Project of the ACLU joined with Legal Aid
of Western Oklahoma and the National
Center for Youth Law to co-counsel this
landmark piece of litigation:

B

Historical Background
Prior to 1961, Oklahoma operated a

constellation of eight large, congregate
care juvenile institutions with a total bed
capacity of approximately 1,200. Dejure
racial segregation was enforced at these
facilities until 1969. Although the
institutions were designated as training
schools and children's homes for delinquent and dependent children, respectively, youthful offenders and dependent

children were routinely commingled.
Early deposition testimony in Terry D.
v. Raderconfirmed that these pre-1961 institutions were custodial warehouses for
children where abuse and neglect were
severe and common.
The institutions acted with complete
autonomy, developing their own policies
and maintaining final authority over
release decisions.
In 1961, the operation of the state's
juvenile institutions was transferred to
the Department of Public Welfare
(DPW)-now the Department of Ruman
Services (DRS). This transfer was made
necessary by the unique funding mechanism of DPW. By state constitutional law,
DPW was funded by earmarking the state
sales tax. While state revenues from
other sources were declining, state sales
tax collections were soaring. Since DPW
did not have to compete in the legislative
appropriations process, it was able to
evade legislative scrutiny and control.
Child advocates hailed the transfer of
these institutions to DPW as progressive.
Indeed, it signalled the state's first effort
to bring professional child care to these
facilities. Unfortunately, there was no
break with the past in child care philosophy-the institutions remained the
primary service delivery system for
troubled youth. Rather than redirect
resources into less restrictive community
services, DPW committed millions of
dollars to a massive institutional rebuilding campaign. The forces preventing real
reform were institutional jobs, the
interests of local suppliers, and the
political power attendant to these
interests.
Over the next ten years, conditions at
the state children's institutions worsened.
DRS administration believed its rebuilding campaign had solved the institutional
problems, and therefore took a hands-off
attitude towanNnstitutional administration. Notwithstanding the addition of
social work staff to the institutions, the
"old guard" was still firmly in control and
able to exercise its historical autonomy
due to the lack of agency and legislative
oversight.
DUring the 1970s, a small contingent of
professionals began to examine the state's
service delivery system for children. A
study entitled "Youth in Trouble-A
Shared Concern" was completed in 1971
and designated as the blueprint for
children's services during the decade. It
strongly recommended the expanSion of
community-based programs, a recommendation largely ignored by DRS. Asecond
study completed by the Oklahoma League
2 SPRING 1990

a

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~
4:
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----'

Girls who broke rules were locked in these 8' x 5' cells fo.rperiods ranging from
one to 20 days.

of Women Voters in 1977 echoed many of
the earlier recommendations.
Legal Aid of Western Oklahoma
(LAWO), as a result of these studies and
its own disturbing litigative experiences
in juvenile court, undertook the representation of institutionalized youth in 1977.
This led to a nine-month investigation of
the state's juvenile institutions, revealing
shocking abuses: children held in barren
solitary confinement cells for 30 days;
widespread physical abuse; excessive
shackling and restraint, including a
bizarre practice known as hog-tying
(tying feet and hands behind the back
and joining them with a chain); the use
of tranquilizers for punishment (children
were also sedated for staff convenience);
the proliferation of illegal drugs brought
in by staff; and sexual encounters
between children and staff. It was later
learned that the staff at one institution
were involved in a prostitution ring
using girls from the institution. Well over
50% of the incarcerated youth had been
convicted of no offense, but were abused,
neglected, runaway, and truant children.
After DRS failed to respond meaningfully to these reports of abuses, litigation
was viewed as the only possible course.
On January 4, 1978, Terry D. v. Rader was
filed in the United States District Court in
Oklahoma City.

The Litigation
From the outset, the litigation was
bitter. Every inch of ground was contested. The defendants fought class
certification, our access to children, the
use of experts, and virtually every
discovery request. In its order awarding
attorneys' fees, the district court would
later comment that "plaintiffs were

confronted with the largest, most
expansive bureaucracy in the state
which, under the guidance of its then
director, had assumed the vestiges of an
administrative empire," and that "much
of the delay, conflict and concomitant
expense was occasioned by defendants'
intransigence."
At the same time that the state was
engaging in hand-to-hand combat, it was
making coerced efforts to clean up what
it perceived to be the most egregious
abuses. The state's strategy quickly

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N.W.
Washington, D.C. 20036
(202) 331-0500
The National Prison Project is 0 lox-exempt foundationfunded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing 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
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be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
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are welcome.

THE NATIONAL PRISON PROJEG JOURNAL

became clear-meaningful systemic
change through federal court intervention could be averted if trial could be
delayed long enough to correct the most
serious abuses.
This strategy pervaded the entire case.
When plaintiffs moved for preliminary
relief from solitary confinement practices at the Helena State School, defendants sought to avoid a hearing by
bulldozing the confinement building.
When plaintiffs again sought a preliminary injunction to stop abusive restraint
practices, the defendants responded with
expansive new policies curtailing those
practices.
Although plaintiffs were never able to
secure an evidentiary hearing, defendants' responses to plaintiffs' claims
ultimately worked to plaintiffs' advantage by actually securing positive relief
from the most abusive practices during
the pendency of the litigation.
When the defendants realized that
their strategy of "delay and correct" was
beginning to crumble under what the
district court termed "the relentless
pressure" of plaintiffs' efforts, they
embarked on a new strategy that sought
to publicly discredit plaintiffs' counsel.
Using the media, the agency mounted
vicious and unfounded attacks on
counsel's conduct. Welfare director Lloyd
Rader used his enormous political power
to prompt an investigation of the
activities of plaintiffs' counsel by the
United States Justice Department. The
defendants' attacks were all found to be
meritless.
After three years of litigation, several
realities emerged. First, the state was
unwilling to undertake meaningful
systemic change to redirect resources
from institutional to community-based
services. Second, DHS was learning that
it could not control institutional abuses
within the clJrrent constellation of
facilities. Third, it seemed unlikely that
the federal court would order the closure
of any juvenile institutions, which was
one of plaintiffs' primary remedial goals.
To meet these realities, plaintiffs
decided that maximum relief would be
obtained from a consent order, and that
such an order would only be possible if
the full litany of institutional abuses
could be made the responsibility of
welfare director Rader. If Rader could be
shown unable to control these abuses,
then new directions in youth services
might be successfully negotiated as an
alternative to a costly and embarrassing
trial.
Plaintiffs exploited this option by
THE NATIONAL PRISON PROJEG JOURNAL

conducting extensive depositions
beginning with line level workers and
progressing through the ranks of staff to
Rader himself. Each level of staff tended
to blame the next higher level for the
inadequacies and abuses of the system.
Rader's two-day deposition was perhaps
the ultimate confrontation. Time after
time, Rader condemned the practices
plaintiffs had documented as child abuse;
time after time, Rader denied such
practices now existed; and time after
time, Rader was forced to recant his
testimony when confronted with substantiating documentation. Less than a
month later, negotiations began at
defendants' insistence.
Aconsent order was hammered out
over the next five months. All abusive
practices were to be eliminated, status
offenders would be deinstitutionalized,
community-based services wouldbe
developed, individualized treatment
programs would be instituted, and at
least three more institutions would be
closed (one facility had been closed
earlier in the litigation).
Despite the best efforts of plaintiffs'
counsel to control the course of the
events that followed, there were times
when those events simply assumed a life
of their own.
Just weeks after the parties had
concluded five months of very difficult

negotiations, but before the court had
signed the resulting consent order, the
Gannett News Service published a
nationwide seven-part newspaper series
proclaiming "child abuse hidden by state
cover-up." The Oklahoma legislature,
which had largely ignored the litigation,
now took particular interest. After
reviewing the proposed consent order,
however, legislative leaders felt the order
provided too'much relief and instructed
the state attorney general to withdraw
from the ag~eement.
While the district court was still
considering approval of the consent
order, the Juvenile Justice Subcommittee
of the U.S. Senate Judiciary Committee
commenced hearings to inquire into
Oklahoma's institutional abuses.
In the midst of all this activity, the
district court refused to approve the
consent order. The court reasoned that
implementation of the order was improbable with the executive and legislative
branches of state government in disagreement over its terms. In other words, the
children would once again be penalized
by the ineptitude of the state.
That summer, the Oklahoma legislature
enacted sweeping juvenile justice reform
legislation that incorporated much of the
relief sought by plaintiffs. Thereafter,
Rader announced his resignation. Even
though no consent order had yet been
approved, the next two
years saw a flurry of
activity in juvenile justice.
Four more institutions were
closed, reducing bed
capacity from over 1,000
down to 250; group homes
and foster homes for adolescents were developed; and
the use of abusive practices
all but disappeared from the
remaining state institutions.
In May 1984, after two
years of ongoing negotiations, the district court
finally approved a consent
order that was substantially
the same as the one it had
rejected two years earlier.

A view into a Dodge House detention cell at the
Helena State Training School. Children slept on
mattresses on the floor.

Post-settlement
Once the consent order
was approved, everyone
involved in the juvenile
justice system breathed a
collective sigh of relief-the
nightmare was over. As institutionallitigators are well
aware, however, the nightmare was only beginning.
SPRING 1990 3

__ J

implementation plan.
LAWO has worked with DHS and the
legislature to formulate strategies to
curtail the number of in-patient mental
health commitments.
Finally, LAWO has sought to enforce
the private provid~r terms of the consent
order against the mental health institutions, requiring that the state funding of
private care providers be contingent
upon compliance with the order. The
c
j private provider clause has been very
6 effective in ext~ndingan enforceable
E minimum standatd of child care into the
~ private sector.
(; Where, then, is Oklahoma in its
~ development of a community care system
l for youth? Has the Terry D. litigation
----.J ~ been successful or has it merely created
Dodge House detention cells held boys for up to 30 days, although sometimes
new problems to replace the old ones?
even longer. Dodge House was later razed to the ground.
The consensus among DHS personnel,
legislators, and juvenile justice professionals is that the litigation was an
Although the state had closed institudisturbance.
essential chapter in the development of
The same economy that prevented any
tions and had made great strides toward
Oklahoma's child care system.
eliminating institutional abuses, it was
investment of new funding for program
Although the debate over the need for
development gave rise to a new marketnever really able to turn the corner on
more secure beds rages, it seems that the
in-patient mental health and drug
redirecting resources into communitybook has been closed on the large,
treatment programs for youth. Hospitals
based programs for youth. After the ecocongregate care institutions of the past.
nomic excesses of Oklahoma's oil boom
suffering from declining occupancy rates
Even as judges, legislators, and law
found that there were substantial sums
had passed, the state faced the hard
enforcement personnel advocate for
of money to be made in mental health
realities of recession. The money saved
more beds, they speak in terms of 20-bed
from closing four institutions never made care for kids.
its way back into children's services.
The state of Oklahoma, like many other facilities.
The level of institutional scrutiny that
Funding for children's programs was
states, sat by and watched as judges
now exists will continue to keep institureduced at the time it most needed to be
rushed to relabel chronic petty offenders
tional abuses relatively in check. Indeed,
and incorrigible youth as mentally ill. Inincreased.
it is the heightened level of visibility and
patient mental health commitments of
In addition, Lloyd Rader's successors
public scrutiny of the institutions that
children in Oklahoma rose from 75 in
had failed to bring new blood to the
may be one of the greatest achievements
agency's division for youth. Thus, those
Fiscal Year 1982 to 375 in FY 1989. The
of the Terry D.litigation. What was once
who were most invested in the old
cost for this care: a staggering $25 million
hidden from view is now very much in
institutional programs were still in
in FY 1989 and growing.
the public eye.
control of youth services. Those individuDespite these enormous costs, there is
Problems of over-institutionalization
als have to this day been largely unable
little or no evidence that in-patient
remain, and the community-based system
to even conceptualize a community-based mental health care is of any appreciable
of care envisioned in the litigation lags in
benefit to most of the children. Many of
system of child care.
development. All in all, however, the
One of the state's biggest post-consent
these children languish for months and
Terry D.litigation represents a quantum
even years in mental health institutions
order failings has been its inability to
that are equally, if not as overtly, abusive leap forward for child custody in
develop programs for status offender
Oklahoma.
as the state institutions from which they
youth. It is true that the problems of
drugs and youth violence have posed
were removed.
challenging new issues for juvenile
LAWO went back to court for the
justice professionals. While the debate
appointment of an advisory panel of
:s'ee, Ed Koren, "Dramatic Change in Oklahoma
Juvenile Justice System," NPPJOURNAL, Number 2,
over the need for more secure detention
juvenile justice experts to study and
Winter 1984, pp. 3-4.
identify the specific community-based
and training school beds has been
program needs of Oklahoma's adolescent
rekindled, it is what to do with
emotionally damaged and incorrigible
youth. The experts were to examine
Steven A. Novick is the deputy director of
whether or not the state needed any
children that has sparked the greatest
Legal Aid of Western Oklahoma. He is the
additional detention or training school
dilemma.
1982 recipient of the Oklahoma Civil
When the state institutions were closed facilities. The district court has granted
Liberties Union's Angie Debo Civil
plaintiffs' request for a study panel to be
to abused, neglected, and runaway youth,
Liberties Award. In 1986, he received the
funded by the defendants, and plaintiffs'
the state was ill-equipped to respond to
prestigious Durfee Award which is
counsel will seek to have the findings
the needs of these youngsters in the
grantedfor "enhancing human dignity
community setting. Many of these
and recommendations of the panel
through the law."
children suffered from emotional
incorporated into a court-ordered
R . __ _" " " - - - ' - -

4 SPRING 1990

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THE NATIONAL PRISON PROJEG JOURNAL

ACLU's Demands Trigger Change in
Hawaii'sJuvenile System
Youth Shifted to Community Programs
BY' DAN MACAttAIR
fter decades of neglect and abuse
in their juvenile training school,
the state of Hawaii has initiated
steps to restructure and deinstitutionalize
most of its young population. This action
followed a series of scathing reports on
conditions at the youth facility which
led to the intervention of the American
Civil Liberties Union's (ACLU) National
Prison Project together with its Hawaii
affiliate. Following a two-year investigation, ACLU attorneys informed state
policy-makers that a lawsuit was
imminent if immediate action was not
taken to improve the situation. Acting
under the advice and pressure of the
ACLU, the Hawaii Department of Corrections (DOC) contracted with the National
Center on Institutions and Alternatives
. (NCIA) to establish the Hawaii Youth
Advocacy Project in July 1989.
Funded by grants from the Edna
McConnell Clark Foundation and the
Public Welfare Foundation, the DOC
formed the Youth Advocacy Project in
response to the ACLU's demand for
drastic reductions in the number of
youth unnecessarily held in the antiquated Hawaii Youth Correctional
Facility (HYCF). Its purpose was to offer
an alternative to the state's plan to build
a new 150-bed training school by developing and implementing release plans for
youth who could be managed in community settings-90% of the HYCF population, by some estimates. If successful, the
project would bolster the position of advocates for eKpansion of communitybased programming and would demonstrate the potential effectiveness of
outside agencies in moving the state
toward deinstitutionalization.
ACLU and state policy-makers recognized, in deciding to contract with NCIA,
that entrenched correctional bureaucracies are unlikely to implement meaningful and long-term reductions in institutional populations. For instance, the department's staff at the HYCF had long
been unable to design and develop new
policies that would expedite community
readjustment and speed up the release
process.
Despite a number of highly critical reports and studies that found conditions at

A

THE NATIONAL PRISON PROJEG JOURNAL

the facility to be destructive and inhumane, little had changed in the 30 years
since its opening. HYCF staff relied
almost solely on incapacitation, and
youth were given little preparation for
returning to the community. For example,
at the time the project began there were
only seven youths on parole, despite the
presence of three full-time parole
officers. In 1987, juvenile justice consultant and researcher Paul DeMuro! had observed an inexplicable reluctance on the
part of the HYCF parole staff to use the
parole option and provide adequate aftercare planning and community follow-up.
Instead, the more common practice was
to retain wards until
their 18th birthday and
then simply release
them. One HYCF staff
member recalled a
recent case of a girl who
turned 18 and was released from the facility
with 45 cents, a bag
lunch, and virtually no
place to go.
Hawaii's legislative auditor decried this
policy of warehousing youth at the HYCF
in a 1986 report. He wrote:
Warehousing is, ofcourse, the
easiest ofall strategies. As the line
of least resistance, it takes no extra
effort andforces no one to stand
upfor change. It simply allows
things to go on, largely as they have
been, each agent (even the most
conscientious ofstate employees)
restricted to a mere segment of
what is in reality an extremely
complex, interrelated, and hence
difficult range of tasks and
difficulties (Tanimura, p.17)2
As a result of this situation and the insistence of the ACLU for immediate and
decisive change, the Department of Corrections contracted with NCIA to establish the Hawaii Youth Advocacy Project.
When the project began in July 1989,
NCIA's strategy was to target those youth
who were considered by institution staff
to be the more difficult management
problems. If the project was successful
with this population then it would
certainly be applicable to the more
tractable population, strengthening the
argument for further deinstitutionalization.

Targeted youth were assigned a case
manager who was responsible for
designing and implementing an individualized release plan specific to the needs
of the youth. Each plan included provisions for housing, school, individual
counseling, drug treatment, recreation,
family the~apy, employment, and thirdparty supervision. Prior to release the
staff person tried to foster a close and
trusting relationship with the youth. This
was vital since the project's success
depended on ~he youth's willingness to
call upon the case manager when the
inevitable crisis arose. Case managers
assisted youths in developing positive
social support networks and helped them
secure community resources and services.
Case managers had to establish themselves as advocates and be recognized as
supportive by the youth and his/her
family.
As a direct result of
this program, the
population of the HYCF
has declined every
month that the project
has been in operation.
For example, in July 1989
the institution held 75
youths. By early December, the final month of
the project, the population had fallen to
32. According to the HYCF administrator,
who had been employed at the facility
for 25 years, this was an all-time low. In
addition, an expanded array of community programs now serves HYCF youth,
including residential drug treatment, inhome family therapy, out-patient
counseling, and therapeutic foster care.
Of the 27 youth released during the sixmonth period, three were rearrested. One
arrest was for "drunk in public" and
another was a theft charge that was
dropped on the recommendation of the
prosecutor. The only arrest that resulted
in reincarceration was for the theft of a
Moped. That youth was subsequently
placed in a residential drug treatment
program. Due to its success, the program
was moved over to the John Howard
Association, a local criminal justice
advocacy agency, and extended until July
1990. At that time the state legislature is
expected to fund it on a permanent basis.
The Hawaii Youth Advocacy Project is
an example of how private agencies can
be used by correctional reformers to
further organizational change. The role
of outside agencies in correctional
reform rests on the following assumptions:
1. Existing bureaucracies are unable to
SPRING 1990 5

reform themselves to any significant
degree because of their natural reliance
on past practices and procedures which
dictate professional attitudes and
philosophies. In addition, correctional
reforms foster institutional resistance
because they often invalidate many
accepted professional beliefs and
standards.
2. The organizational structure of
correctional agencies discourages
innovation and creativity. This is partly
attributable to civil service protections
and union restrictions that render
organizational structures and job
assignments extremely difficult to alter.
In contrast, a contracted program allows
for greater flexibility because it can be
more easily redirected or dismantled
based on the momentary need. Also, the
outside agency is not vested in the status
quo and therefore may offer a greater
commitment to change.
3. Private sector agencies can provide a
vehicle for swift and immediate action.
By placing the essential tasks of organizational reform with outside agencies, the

administrator can reduce the impact of
institutional sabotage and resistance on
program implementation.
4. Perhaps the most vital assistance
that the outside agency provides is
essential expertise and experience that
may not exist in a tradition-bound
correctional bureaucracy. Communitybased correctional systems are founded
on radically different concepts and
practices than institution-based systems.
For example, in recent testimony before
the Hawaii State Legislature, the director
of the Department of Corrections stated
bluntly that he was unfamiliar with
the operation of community-based
programs.
With the increase in juvenile incarceration during the 1980s, the need for
reformers to devise strategies to reverse
this trend is more urgent than ever.
Reformers must develop methods that
can effectively confront and overcome
those vested interests which seek to
preserve the present system. The Hawaii
Youth Advocacy Project is an example of
how an outside agency can foster and

Kids in Adult)ails:
Still a Problem in 1990
BY JAMES BELL

ince the early 1960s, advocates for
children have called for removal of
all children from adult jails. In 1974,
as a result of these efforts, Congress
enacted the juvenile justice and Delinquency Prevention Act Quvenile justice
Act),! which severely limited instances in
which children could be placed in adult
jails. Yet, more than 15 years after the
passage of this statute children are still
being held in jails in unacceptable
numbers nationwide.2 Why is the
removal of children from adult jails
taking so long, and how successful have
advocacy efforts and litigation in some
jurisdictions been?
In order to properly analyze the
practice of using adult jails for detention
of children, it is critical to look at the
social and legal policies which drive this
practice. judges, sheriffs and prosecutors
often maintain that placing children in
adult jails gets their attention, teaches
them a lesson, and may act as a deterrent
to future delinquent behavior.
Ensuring community safety and
protecting youth from themselves are

S

6

SPRING 1990

among the legal justifications given.
Inherent in these legal justifications is
the idea that placing a child in an adult
jail is better than no placement at all.
Indeed, in many rural areas adult jails are
seen as viable places for detention
because juvenile detention facilities are
far away or non-existent.
Estimates vary regarding the actual
number of children being detained in
adult jails annually. In 1974, Rosemary
Sarri conducted one of the first studies on
this issue and estimated the numbers to
be approximately 500,000.3 Five years
later another study estimated the
numbers at about 120,000.4 A1985 Department of justice study estimated that
approximately 479,000 children were
detained in adult jails annually.5 Of this
number, only 10% were being held for
serious offenses.6 Incredibly, approximately 20% are held for behavior which
is not criminal at alF These figures
include some of the over one million
runaway and homeless children. Additionally, 10% of children held in jails are
under 13 years of age.
These statistics clearly demonstrate
that the removal of children from adult
jails will not happen by chance. By using

ease juvenile correctional reform without
building more institutions. Through the
use of community-based programs, it has
demonstrated that there are viable
alternatives to incarceration, and it has
prOVided a further basis for the dismantling of Hawaii's institution-based system.
As a result of this experience, other states
and jurisdictions should examine the
Hawaii Youth Advocacy Project as a
possible means for reducing their
institutional populations.
,
1Paul DeMuro. "Hawaii's Juvenile Justice System:
Opportunity for Reform," Honolulu, HI: Hawaii
Department of Corrections (1987).

'Clinton T. Tanimura. Management Audit of the
Hawaii YouthCorrectional Facility. (Report No. 8615). Honolulu, HI: Legislative Auditor for the State of
Hawaii (1986).
For further information, see, Naneen Karraker,
Daniel Macallair, Vincent Schiraldi. "Public Safety
with Care: AModel Juvenile Justice System for
Hawaii," San Francisco, CA: National Center on
Institutions and Alternatives (1988).

Dan Macallair is theformer head of
NCIA ~ Hawaii Youth AdvocacyProject.
a combination of legal and social policy
arguments, advocates have been able to
reduce, and in some cases eliminate, the
numbers of children being subjected to
the abusive environments of adult jails.

Legal Background
The first case to directly proscribe the
practice of holding children in adult jails
was D.B. v. Tewksbury.8 In Tewksbury,
attorneys challenged the constitutionality of youth detention in the St. Helen's
jail in Columbia County, Oregon.
Specifically, they claimed that defendants failed to provide them with
adequate exercise, education, recreation,
medical care, visits, and adequate
nutrition. Plaintiffs also claimed that
defendants placed intoxicated and
drugged children in isolation cells
without medical attention. In addition,
plaintiffs challenged the level of staffing
at the facility.
In response, defendants contended that
the jail was constitutional and that state
law allowed holding children with
adults. Indeed, in espousing the social
policy arguments often used to justify
detention, the sheriff responsible for the
jail stated, "Detention is punishment and I
try to make it as unappetizing as possible.
The last place a child wants to be.''9
The district court, in holding that the
Columbia County jail conditions violated
the children's constitutional rights, said:
THE NATIONAL PRISON PROJEG JOURNAL

The supervisors atjails are
guards-notguardian£]aushold
convicted criminals and adults
charged with crimes.jails are
prisons with social stigmas.
Chudren identify with their
surroundings. Ajail is not aplace
where a truly concerned natural
parent would lodge his or her chud
for care andgUidance. Ajail is not
aplace where the state can constitutionally lodge its chudren under
the guise of parens patriae.
Thus, even if a state statute allows the
detention of children in adult jails,
advocates may challenge the conditions
of confinement as violative of the
Constitution with Tewksbury as support
for such a challenge.

Efforts in Two States:
Alabama and Indiana
Alook at Alabama illustrates how
courts, legislatures, and advocacy groups
can effect institutional change by using
legal and social policy arguments.
In the northwestern corner of Alabama, some counties routinely detained
children in adult jails. Not only were
children placed in jail while awaiting a
hearing before the juvenile court judge,
some were actually sentenced to the jail
as punishment for misbehavior. In the
minds of the judges and sheriffs, two
factors made such treatment appropriate.
First, state statutes allowed children to be
held in adult jails only if the jail was
licensed to hold children, if youths were
physically separated from adults, and if
no other placement existed. Second, only
Alabama's Department of Youth Services
could license an adult jail to hold
children.
The Youth Law Center, a San Franciscobased legal advocacy center specializing
in juvenile justice issues, filed suit
challengingJ;he constitutionality of this
practice. Lawsuits are a critical weapon
for advocates because the underlying
policy issues are never reached unless
officials feel some pressure to change
their practices. Alawsuit can force an
official or a system to examine these
practices and determine if it is important
enough for them to spend the money to
litigate.
The legal challenges in the Alabama
litigation were premised upon the U.S.
Constitution and the Juvenile Justice Act.
After Tewksbury, the second challenge
brought against Alabama's practice of
detaining children in adult jails relied on
the Juvenile Justice Act. The Act requires
that states remove children from adult
THE NATIONAL PRISON PROJEG JOURNAL

jails and lock-ups in return for federal
funding designed to assist states in
finding alternatives. Since the Act's
passage, many states have received these
funds, yet have not significantly decreased the number of children in their
jails.
Advocates in Iowa brought suit on
behalf of a young man detained in an
adult jail, claiming both a violation of the
Act and plaintiff's constitutional rights. lO
Specifically, the plaintiff alleged that the

state had done nothing to comply with
the mandates of the Act yet continued to
accept funds under the statute.
The district court agreed with the
plaintiff and issued an injunction
prohibiting the state from detaining any
more children until they submitted a
plan explaining what measures would be
taken to remove children from adult jails.
In support of its finding, the court noted:
Whether this Court likes it or not
Congress has consistently valued
\

The following are significant cases
involving the rightsofjuveg.iles:
Due Process

Application ofGault, 387 U.S. 1(1967),
holding that the Fourteenth Amendment to
the Constitution requires that when a
juvenile is charged with a delinquent act
which could result in some substantial
deprivation of liberty, the state must give
adequate notice to parents and the youth,
provide counsel for indigent youth, afford
the youth an opportunity to cross-examine
witnesses and inform the youth of their
right against self-incrimination.
In Re Winship, 397 u.s. 358 (1970),
holding that the standard of proof needed
~~~s~~~b~~n30~b~.~linquency was "beyond a
McKiever v. Pennsylvania, 403 u.s. 528
(1971), holding that juveniles accused of
~~~~:~t~j~ra/elinqUent act do not have a
Kent v. u.s., 383 U.S. 541 (1966), holding
that there must be a hearing and written
~~n:~~r: ~~~~:Ying transferring a juvenile
Stanford v. Kentucky and Missouri v.
Wilkins, 109 S.Ct. 2969 (1989), holding that
it does not per se violate the Eighth
Amendment prohibition against cruel and
unusual punishment to impose the death
penalty on juveniles who commit a capital
crime at age 16 or above.
Detention

D.B. v. Tewksbury, 545 F.Supp. 896 (D. Ore.
1982), holding that children detained in
adult jails are per se subjected to unconstitutional conditions of confinement and
cannot be given the rehabilitative services
inherent in the juvenile justice system.
Schall v. Martin, 467 U.S. 253 (1984),
holding that a child charged with a
delinquent offense may be detained prior to
a finding of probable cause if the juvenile
court judge reasonably believes the child
~~lt~Oc~:r~~ another crime before returnSmith v. Wade, 461 u.s. 30 (1983), holding
that punitive damages can be recovered

from security staff when a security
member deliberately encourages 0
detainee to assault another, and th
nothing about the assault once it 0
Inmates ofBoys Training School
Southworth, No. 4529 (D.R.!., consen
entered 1973)
.
Terry D. v. Rader, Civ. No. 78-004Okla. 1982)
.
RobertK v. Bel4 Civ. No. 83-2871984)
F.E. v. Hensley, Civ. No. 73 CV 4
(W.D. Mo. 1978). Cases that estab
rights for children in detention to
adequate medical care, nutrition, ed
tion, exercise and recreation.
Youngberg v. Romeo, 457 U.S. 307
Case that established the right of d
children to be free from the arbitr
punitive use of shackles.
Lollis v. New York State Dept of
Services, 322 F.Supp. 473 (S.D.N.Y.1
He. v.Jarrad, 786 F.2d 1080 (lIth
1986). Cases that established the rig
detained children to be free from
and punitive use of isolation.
Child Protection

DeShaney v. Winnebago Count
Social Services, 109 S.Ct. 998 (1989
holding that Department of Socia
social workers could not be held
under 42 U.S.C. §1983 for the per
brain damage suffered by the ch
plaintiff, as a result of severe b
the child's father, even though
Department social workers knew
was being severely beaten.
Child Victim Witnesses
Coy v. Iowa, 108 S.Ct. 2798 (1988),
that defendant's Sixth Amendmen
to confrontation was violated wh
children who were victims of sex
assault testified about defendan
from behind a screen which blocke
defendant from view during test'

SPRING 1990 7

detention centers. Further, many children
exposed to a jail environment view
themselves as criminals and begin to act
accordingly, increasing the likelihood of
reincarceration.
Finally, it is simply not cost-effective to
incarcerate children in adult jails. Studies
show that the use cif alternatives to
incarceration are less expensive. Among
other things, holding children in adult
jails requires additional insurance
coverage.
The above-men.ioned legal and social
policy arguments are powerful and not
likely to be ignored by a jurisdiction that
routinely jails children. In Alabama, the
Department of Youth Service has
changed its policy and refuses to license
any adult jail in the state to detain
children.
While there are many problems in
corrections that require time and
attention, the problems of children in our
adult jails should never be far away from
our consciousness. We at the Youth Law
Center will always be Vigilant in redressing this most basic violation of children's
rights. We urge those who encounter this
problem to challenge it aggressively in
order to force states to totally remove
children from adult jails. Alabama and
.g Indiana are examples of how this can
1f
:fj become a reality.
E
i=

<i.

-'

In 1977, minority youth represented 45% of those in custody. Today, according to
recent studies, the number is close to 55%.

the removal ofjuvenilesfrom
adultjails over administrative,
protective andpenological advantages ofplacing them. It makes
little difference at this stage that
these values were embodied in a
fundingprogram rather than a
nationwideprohibition. If the state
did not share Congress'priorities or
did not wish to implement them, it
could have merely refused to seek
OJJDPfunding,u
The Tewksbury and Hendrickson
decisions have been potent legal weapons
used against the state of Alabama in
challenging its practice of jailing
children.
By using many of the same advocacy
tactics that were successful in Alabama,
advocates in Indiana persuaded their
Supreme Court in March 1989 to establish
an innovative project to address the issue
of children in jail. The project requires
local public defenders to notify the
juvenile court judges whenever a child is
placed in an adult jail, and promises that
8 SPRING 1990

a writ of habeas corpus will be filed
unless the child is placed in an acceptable
alternative. The state Public Defender
reports that the project has reduced the
incidence of children in adult jails by 60
to 80%.
Social policy arguments have also
been effective when advocating for jail
removal. Jails are inappropriate for
children for a myriad of reasons. Many
sheriffs and jailers do not want children
in their facilities because there is
nothing for the children to do during the
day. They become bored and often
request attention or destroy property.
There is also the possibility the children
will be physically and/or sexually
abused at the hands of the jailers or other
inmates.
In order to protect children while in
the jail, jailers often isolate them from
the general population. This frequently
results in increased fear and depression
for the child, as evidenced by suicide
rates that are eight times higher for
juveniles in adult jails than in juvenile

------142 U.S.C. § 5601 et seq.
2See, Russ Immarigeon, "Despite New Laws, Juveniles

Still Locked in Adult Jails," NPPJOURNAL, Number 17,
Fall 1988, pp. 21-24.
lRosemary C. SarrL Under Lock and Key:]uvenites in
jails and Detention. Ann Arbor, Michigan: National
Assessment of Juvenile Corrections, University of
Michigan. (1974).
4John E. Poulin, John L. Levitt, Thomas M. Young,
Donnell M. Pappenfort.juvenites in Detention Centers
andjails. Chicago, Illinois: National Center for the
Assessment of Alternatives to Juvenile Justice
Processing; The School of Social Service Administration; University of Chicago.
SU.S. Department of Justice; Office of Juvenile Justice
and Delinquency Prevention,juvenites in Adultjails
and Lockups, Ifs Your Move. (February 1985).
6Id.
'1d.

8545 F. Supp. 896 (D. Ore. 1982).
9Id at 903.

IOHendrickson v. Griggs, 672 F.Supp 1126 (N.D. Iowa
1987).
IlJd. at 1140.

James Bell is a staffattorney with the
Youth Law Center in San Francisco, a
legal advocacy center specializing in
juvenilejustice issues.
THE NATIONAL PRISON PROJEG JOURNAL

Case LawReport
A PROJEG OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOl. 5, NO.2, SPRING 1990. ISSN 0748-2655
.

BY JOHN BOSTON

Highlights of Most
Important Cases
Medical Care/Mental Health Care
The Eighth Amendment forbids "deliberate
indifference" to prisoners' serious medical
needs. Most often, that phrase has been
construed to mean the failure to get a sick or
injured prisoner to a medical practitioner
capable of evaluating his or her condition, or
failure to carry out the instructions of that
practitioner. Incompetence, bad judgment or
neglect by doctors or nurses has generally been
viewed as mere malpractice or negligence, not
rising to a constitutional level.
Recent cases suggest that the definition of
"deliberate indifference" may be subtly
expanding and that courts may be more
willing to scrutinize the actions of medical
personnel under the Eighth Amendment. In
Ortiz v. City ofImperial, 884 F.2d 1312 (9th Cir.
1989), a prisoner fell and hit his head. When
he began displaying symptoms of a serious
head injury, jail personnel did not take him to
an emergency room; they called a doctor who
prescribed sedatives (contraindicated for
persons with head injuries) over the telephone. The prisoner later died of a subdural
hematoma related to a skull fracture.
The court held that the claim could not be
dismissed as "mere malpractice." The prisoner's
estate had raised factual issues entitling it to a
trial under the ~liberate indifference standard. "Because the nurses and Dr. Reid knew of
Ortiz's head injury but disregarded evidence of
complications to which they had been
specifically alerted and, without an examination, prescribed sedatives that were contraindicated, we cannot say as a matter of law they
were not deliberately indifferent...." (1314)
These decisions are consistent with a series
of recent cases in which bad judgment or bad
treatment by medical personnel have been
held to state an Eighth Amendment claim. As
one court put it, treatment "so grossly
incompetent, inadequate, or excessive as to
shock the conscience" or "so inappropriate as
to evidence intentional maltreatment"
(emphasis supplied) violates the Eighth
Amendment. It added, "Whether an instance of
medical misdiagnosis resulted from deliberate
THE NATIONAL PRISON PROJEG JOURNAL

indifference or negligence is a factual question
requiring exploration by expert witnesses."
Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.
1986). What this means in practice is that if
medical personnel make a bad mistake and
someone is hurt badly or dies, the case will
probably go to a federal court jury and not get
dismissed before trial. See also, Greason v.
Kemp, 891 F.2d 829 (11th Cir.1990) (arbitrary
discontinuance of anti-depressants leading to
suicide); Carswell v. Bay County, 854 F.2d 454
(11th Cir.1988) (treatment of diabetic's
catastrophic weight loss with laxatives and
pain-killers); Wood v. Sunn, 865 F.2d 982 (9th
Cir.1988) (disregard of complaints because
defendants assumed the plaintiff's pain was
psychologicaI); Waldrop v. Evans, 871 F.2d 1030
(11th Cir.1989) (arbitrary discontinuance of
psychotropic medication leading to patient's
blinding and castrating himself); Medcalf v.
State ofKansas, 626 F.Supp. 1179 (D.Kan. 1986)
(failure to order tests suggested by "the
elemental and classic symptoms of a brain
tumor").
Bad judgment and bad treatment may also
cross the line from malpractice to deliberate
indifference if they happen repeatedly. This
point was made explicitly in Langley v.
Coughlin, 715 F.Supp. 522 (S.D.N.Y.1988), a case
about allegedly inadequate psychiatric
treatment of punitive segregation inmates in a
women's prison. The court held that the
plaintiffs were entitled to a trial under the
deliberate indifference standard, citing
evidence of "repeated and systemic failures"
including "the failure to take a complete
medical history, failure to keep adequate
records, failure to take into account the
inmate's prior psychiatric history, failure to
see inmates suffering from seeming mental
crises, failure to properly diagnose mental
conditions, failure to prescribe proper
medication and prescription of inappropriate
medication, failure to provide any meaningful
treatment other than medication, failure to
justify decisions as to diagnoses or treatment
or termination of treatment, and seemingly
cavalier refusals to consider that an inmate's
bizarre behavior could conceivably be the
result of a genuine mental disorder, even
though in some cases [mental health staff] had
previously diagnosed the inmate as suffering
from such a disorder." (540) Failures of these
kinds have often been dismissed as mere
negligence in prior cases. See, e.g., Chambers v.
Ingram, 858 F.2d 351 (7th Cir. 1988) (inadequate initial examination, inadequate records,

improper medication). But the Langleycourt
held that "even if none of the numerous
individual failings themselves established a
violation of constitutional rights on the basis
of the prison officials' indifference, the
pattern ofconsistent and repeatedfailures of
this sort over an-extended period of time
would permit a trier of fact to conclude that
the responsible officials were in fact deliberately indifferent." (541; emphasis supplied)!
If deliberate indifference is found on the
basis of such widespread and repeated
deficiencies, it is likely that supervisory
officials will be held liable, instead of or in
addition to the (maI)practitioners involved. In
Langley, the court held that the plaintiffs
were entitled to go to trial against the
psychiatric unit chief, the warden, the deputy.
warden, and the commissioner of the
Department of Correctional Services. After the
Court of Appeals dismissed the defendants'
appeal from the denial of qualified immunity,
888 F.2d 252 (2d Cir.1989), they settled for a
payment of almost one million dollars in
damages and attorneys' fees rather than risk a
trial, subject to trial court approval. Previously, the injunctive claims in the case had
been settled with an extensive consent
judgment and several hundred thousand
dollars in attorneys' fees. See also, Greason v.
Kemp, 891 F.2d 829, 857 (11th Cir.1990)
(prison's clinical director could be found liable
for arbitrary discontinuation of antidepressants based on a prior similar case
involving the same practitioner).
Deliberate indifference is also taking on a
broader meaning in injunctive cases. It has
long been clear that deliberate indifference is
established by "systemic deficiencies in
staffing, facilities, or procedures [which] make
unnecessary suffering inevitable." Todaro v.
War~ 565 F.2d 48, 52 (2nd Cir.1977), quoting
Bishop v. Stoneman, 508 F.2d 1224 (2nd Cir.
1974). Courts are gaining a better understanding of what is administratively necessary to
operate a system of prison medical care,
especially in large institutions, and this
understanding is reflected in their decisions.
Thus, in Tillery v. Owens, 719 F.Supp. 1256
(W.D.Pa.1989), prison officials were directed
to employ not only doctors and nurses but also
a full-time medical director to deal with
quality assurance, record-keeping, evaluation
of services, protocols, in-service education, and
budgetary matters. In Inmates ofOccoquan v.
Barry, 717 F.Supp. 854, 867 (D.D.C.1989), the
court noted the lack of a follow-up system for
SPRING 1990 9

treating chronic conditions as part of its
finding of a constitutional violation. Both of
these opinions, and other recent decisions, also
acknowledge the importance of an adequate
system of medical record-keeping. See Fambro
v. Fulton County, Ga.} 713 F.Supp.1426, 1429-31
(N.D.Ga.1989);johnson-EI v. Schoemeh4 878
F.2d 1043, 1055 (8th Cir.1989) (damage case).

Rights of Staff
Several recent appellate decisions have
explored prison officials' obligation to
safeguard civilians from violent acts committed by prisoners. In DeJesus Benavides v.
Santos, 883 F.2d 385 (5th Cir.1989), several jail
guards were injured or killed during an escape
attempt. They (or their estates) alleged that
their injuries were caused by the deliberate
indifference of the sheriff and the county. The
court cited the recent Supreme Court decision
in DeShaney v. Winnebago County Department ofSocial Services, ~~ u.s. ----' 109 S.Ct.
998 (1989), which held that county child
welfare officials had no constitutional
obligation to protect a child from his father's
violent acts even if they were on notice of the
danger. Such duties on the part of the state
arise only from "limitations which it has
imposed on [the individual's] freedom to act on
his own behalf," e.g., by incarcerating him. The
Benavides court, citing DeShaney, held that
the guards had no constitutional claim.
"Although these cases seem to present an
anomaly in that they appear to afford greater
protection to prisoners than to prison guards,
the affirmative duty to protect a prisoner (as
well as a mental patient or other incarcerated
person) arises only because of and 'when the
State by the affirmative exercise of its power
so restrains an individual's liberty that it
renders him unable to care for himself.'" (388;
citation omitted) After all, the guards were
free to quit whenever they wanted; therefore

'The Langley court also suggested that the Youngberg
v. Romeo "professional judgment" standard for
treatment of the civilly committed may be applicable
to prison medical claims in addition to the deliberate
indifference standard. Aviolation of the professional
judgment standardoGould be shown by evidence that
decisions were made by untrained personnel that
should have been made by psychiatrists or by other
better-trained and supervised personnel, that some
decisions were motivated by personal hostility and
not professional standards, that some decisions
represented substantial deviations from professional
standards, and that the administrator was professionally unqualified "and thus by definition incapable of
exercising 'professional judgment' to which deference
might be due under Youngberg." (542)
'The Dunn case was prosecuted proseand the court
of appeals did not appoint counsel for the plaintiff. It
is questionable whether a decision that is reached
without benefit of a professional presentation on the
plaintiff's side should be given the usual precedential
weight. In our opinion, it is even more questionable
whether appellate courts should decide major
constitutional questions involving important issues
of public policy without appointing counsel for
indigent litigants.
10 SPRING 1990

the fact that they were forbidden to carry
guns and required to be present at certain
locations when they were on the job did not
sufficiently limit their freedom to make the
officials responsible for what happened to
them. Afederal district court reached the same
conclusion in Smith v. Dodrill, 718 F.Supp. 1293
(N.D. W.Va. 1989), a case brought by guards
abused and injured during a prison riot. The
court observed, "...[P]rison employees are not in
custody nor compelled to be guards; they
enlist, and the State is, therefore, not obligated
to shield them from private actors." (1295)
Adifferent result was reached in Cornelius
v. Town OfHighland Lake, Ala., 880 F.2d 348
(11th Cir.1989). Mrs. Cornelius was a town hall
clerk who was abducted and terrorized by
prisoners assigned to a community work squad
program. The court held that prison and town
officials could be held liable for assigning an
inmate with a violent history to an outside
work squad and providing inadequate
supervision if there was a "special relationship" between the state and the injured
plaintiff or if the plaintiff faced a "special
danger" greater than that of the general
public. The court held that there was
sufficient evidence of a "special relationship"
to go to trial against town officials where the
plaintiff had to work in proximity to the
inmate work squad in order to keep her job
and where (unlike DeShaney) the officials had
arguably created the dangerous situation and
increased the vulnerability of the plaintiff,
whose freedom was substantially controlled
by the defendants. There was also sufficient
evidence that prison officials created a "special
danger" to the plaintiff by assigning dangerous
prisoners to the work squads and entrusting
their supervision to town officials with no
training in handling prisoners.
Mrs. Cornelius, of course, could have quit
her job, just like the guards in Benavides and
Smith, both ending the relationship between
her and the defendants and removing herself
from the "special danger." It is difficult to
understand why she should have a constitutional claim based on her mistreatment by
prisoners if prison employees can never have
such a claim even if their employers act with
deliberate indifference to their safety. Perhaps
there is an implicit assumption that people
who go to work in prisons somehow assume
the risk of injury caused by official mismanagement-i.e., that they are "asking for it." This
view is strongly suggested by one preDeShaneycase in which the court observed,
"The state must protect those it throws into
snake pits, but the state need not guarantee
that volunteer snake charmers will not be
bitten. It may not throw Daniel into the lions'
den, but if Daniel chooses to be a lion tamer in
the state's circus, the state need not separate
Daniel from his charges with an impenetrable
shield." Walker v. Rowe, 791 F.2d 507, 511 (7th
Cir.1986).
In any case, the fundamental question left
open by DeShaney, and now disputed in the
lower courts, is whether a public employee's
desire or need to stay employed sufficiently

limits that person's freedom to invoke
constitutional protections.

AIDS
Courts remain highly deferential to prison
officials' policy decisions concerning inmates
with AIDS or HIV infection. In Dunn v. White,
880 F.2d 1188 (10th Cir.1989), the court upheld
widespread cOlI\pulsory HIV testing in state
prisons as having a "reasonable relationship"
to the strong correctional interest in "responding to the threat of AIDS." (1195) Even if there
is no evidence of widespread AIDS infection,
"an attempt to ascertain the extent of the
problem is certainly a legitimate penological
purpose." The fact that everyday contact does
not spread the infection does not diminish the
interest in testing, since the prison may wish
to segregate infected prisoners and has an
interest in diagnQsing and providing adequate
health care to them. The court acknowledged
that "[t]he prisoner's privacy interest in the
integrity of his own person is still preserved
under [Bell vJWolfish...in which the Supreme
Court applied traditional fourth amendment
analysis to a constitutional challenge by
prisoners to personal body searches." However,
under Schmerber v. California, the Supreme
Court decision concerning blood alcohol tests
of drivers, there is only a limited privacy
interest in avoiding blood tests, and it is
further diminished in prison.'
Similarly, in Feigley v. Fulcomer, 720 F.Supp.
475 (M.D. Pa. 1989), the court held that the
failure to test all inmates and employees for
HIV on entry into the prison system and to
segregate all HIV-positive inmates did not
violate the Eighth Amendment, and that the
failure to test other inmates on request did not
violate the plaintiff's Eighth Amendment
rights. The court left open the possibility that
the failure to test the plaintiff on his own
request might violate the Eighth Amendment,
but the court did not decide the question
because the plaintiff did not actually allege
that he had requested the test and been denied
it. The prison policy, which officials did not
explain or justify, provided for testing on a
doctor's order based on recent medical history,
current clinical signs and symptoms, or past
sexual or drug abuse behavior at the doctor's
discretion.
The court also dismissed the allegation that
prison officials did not take adequate steps to
prevent, and in fact tacitly condoned,
homosexual conduct and IV drug abuse among
inmates in the absence of any concrete
allegation concerning the conduct of supervisory officials at the prison.
In Hawley v. Evans, 716 F.Supp. 601 (N.D.Ga.
1989), the court held that denial to HIVpositive inmates of AZT until they became
symptomatic and met other medical criteria
did not constitute deliberate indifference; the
policy was "similar to that of other reputable
national and local agencies." Nor are prisoners
constitutionally entitled to access to their own
private physicians (as long as the prison
provides adequate medical care), or to
experimental drugs.
THE NATIONAL PRISON PROJEG JOURNAL

,
I
~

Outside the policy realm, considerably less
deference is due prison officials, especially
when the challenged conduct is actionable
under the established "deliberate indifference"
standard for prison medical care. In Maynard
v. NewJersey, 719 F.Supp. 292 (D.NJ.1989), a
prisoner had died of AIDS after allegedly
receiving only palliative treatment for five
months (culminating in his collapse, after
which he was given throat lozenges). His
condition was diagnosed only II days before
death. The court held that the allegations
stated a constitutional claim; medical
personnel may not opt for an easier and less
efficacious treatment with deliberate
indifference to the prisoner's serious medical
needs. This holding is of considerable
significance for prison medical staff, since
some of the life-threatening infections
associated with AIDS may cause symptoms
such as persistent headaches and respiratory
distress that prison clinics are accustomed to
shrugging off or treating with over-thecounter medications and nothing more.
In the injunctive case of Tillery v. Owens,
described above, the court stated that
defendants are "expect[ed)" to devise an AIDS
protocol. "When prison officials have refused
even to recognize that such a problem exists,
the court is well within its province to
intervene." 719 F.Supp at 1309.
AConnecticut federal court has issued a
number of orders governing the conduct of a
statewide challenge to prison AIDS and HIV
care. In Doe v. Meachum, the court's rulings
included:
Limitations on prison officials' disclosure of
inmate identities obtained through discovery
from the plaintiffs. 126 F.R.D. 437 (D.Conn.
1988). The plaintiffs had submitted evidence
that such information had been widely
disseminated, resulting in "harassment and
sometimes violence" (439). The court upheld a
finding that plaintiffs "have a significant
privacy interest in their identities as HIV
victims, when revealed in their own responses
to discovery." (439) The court later granted
defendants permission to disclose the
identities of HIV-positive persons to the
wardens of the prisons and to other prison
employees in connection with trial preparation, subject to a ~rotective order barring
further disclosure. 126 F.R.D. 456 (D.Conn.
1989).
Five named plaintiffs who are or were
"incarcerated at correctional institutions
scattered across the state" could represent a
statewide class of prisoners. "Class certification
...is proper in actions brought by HIV victims
with respect to the scope of their treatment."
126 F.R.D. 442 (D.Conn.1989).
Defendants must produce minutes of the
Correctional Health Care Committee (but not
individual participants' notes) and "Budget
Options" documents must be produced that
pertain to a "proposed reorganization of
employee responsibilities with respect to HIV
matters." 126 F.R.D. 444 (D.Conn.1989).
Medical and mental health records of the
named plaintiffs, all HIV-infected inmates
THE NATIONAL PRISON PROJECT JOURNAL

currently incarcerated, past HIV-infected
inmates who died, attempted suicide, or were
hospitalized, and HIV-infected inmates
identified in various incident reports, are to be
produced by defendants to plaintiffs without
any requirement of individual releases. State
statutory privileges are not binding. 126 F.R.D.
444 (D.Conn. 1989).
The protective order itself is published at
126 F.R.D. 450 (D.Conn.1989).1t permits
plaintiffs' counsel to disclose identifying
information about HIV-positive persons only
to their expert consultants and "only to the
minimum extent necessary to litigate this
case." Other disclosure is permitted only upon
notice to defense counsel and court approval if
contested.
The plaintiffs' witnesses at a preliminary
injunction hearing would not be permitted to
testify in chambers and have the record sealed,
but they would be permitted to testify under
fictitious names, "and there shall be no
testimony of a sufficiently detailed nature to
compromise their identities." Those who wish
to may wear disguises. Arequirement of
narrow tailoring applies to requests to close
hearings to press and public. The court notes
that "plaintiffs, for whatever reasons, have a
greater fear of disclosure of their identities
within the prison walls than in the outside
community." 126 F.R.D. 452, 455 (D.Conn.1989);
126 F.R.D. 458 and 459 (D.Conn.1989).

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Protection from Assault/ResJudicata/Class Actions-Effect of}udgments and Pending Litigation/
Personal Involvement and Supervisory Liability
Pool v. Mo. Dept. ofCorrections and Human
Resources, 883 F.2d 640 (8th Cir.1989). A
damage suit based on an inmate assault in 1985
was not barred by resjudicata as a result of a
1978 class action focusing on crowding and
sanitation unless the defendants could show
that staffing issues were actually litigated.
The plaintiff was not reqUired to seek relief
under the earlier class action judgment; even if
the prior action had dealt with protection
from violence issues, the plaintiff would
retain the right to seek damages for subsequent "individual constitutional wrongdoing."
At 645: "To hold supervisors liable under section 1983, a plaintiff must show that a superior
had actual knowledge that his subordinates
caused deprivations of constitutional rights
and that he demonstrated deliberate indifference or 'tacit authorization' of the offensive
acts by failing to take steps to remedy them."
An allegation that a prison superVisor (probably the warden) knew about the numerous
assaults and their connection with inadequate
supervision stated a claim against him.

Searches-Person-Prisoners
Franklin v. Lockhar~ 883 F.2d 654 (8th Cir.
1989). In a punitive segregation unit, inmates
were strip-searched twice daily, when their
mattresses were removed in the morning and
returned in the evening, regardless of whether
they had left their cells or had had unsupervised contact with·anyone. Double-celled
inmates were searched in each other's presence
and then made to stand outside the cell in
view of other im;l1ates while their cells were
searched. In an administrative segregation
barracks (pre-hearing segregation and 48-hour
relief from puniti\>"e segregation), inmates
were strip-searched whenever they entered
the unit (twice a day in the case of working
inmates), in groups of four. In a protective
custody unit, inmates were searched once a
day in a manner similar to the punitive
segregation inmates.
The searches were constitutional because of
legitimate security concerns and "because the
record does not support a finding that a less
public means of searching exists that would
not compromise those security concerns.... Our
holding is, of course, limited to the facts
established in this case and should not be read
to constitute a carte blanche approval of all
visual body cavity searches." (656-57)

Transportation to Courts/SearchesPerson-Prisoners/Access to Courts
Penny v. Shansky, 884 F.2d 329 (7th Cir.
1989). The plaintiff was being brought to court
for a hearing but refused to submit to a strip
search that was to be conducted, contrary to
prison regulations, in view of the entire roll
call of the officer staff. The district court
should not have dismissed the plaintiff's
complaint sua sponte with prejudice based on
its view that the search was constitutional. At
330: "Inmates have a claim to be treated with
minimum dignity, and the indignity of an
unlawful and humiliating strip search was
compounded here by the magistrate's abrupt
use of Penny's refusal to be searched as a lever
to expel him from federal court without
notice and without considering the merits of
his suit." The magistrate's action in conjunction with those of the prison officials may
have also obstructed the plaintiff's constitutional right of access to courts.

Procedural Due Process-Disciplinary
Proceedings/Negligence, Deliberate
Indifference and Intent
Earl v.Norris, 884 F2d 362 (8th Cir.1989).
The plaintiff's retention in punitive segregation for six days after the expiration of his
disciplinary sentence did not state a constitutional claim where the allegations showed no
more than negligence. The plaintiff must show
"something more than negligent prison
administration," but the court does not say
what.

Correspondence-Non-Legal/Religion/
SummaryJudgment
Holloway v. Pigman, 884 F.2d 365 (8th Cir.
1989). Summary judgment was properly
SPRING 1990 11
i ,__

granted against a Native American prisoner
who alleged that he was denied access to
religious items (sage and sweet grass) because
he did not detail what his religious practice
required or assert facts showing he was
deprived of all opportunity to practice his
religion. Afactual dispute over whether the
prison warden had confiscated his sage and
sweet grass was therefore not material.
Summary judgment was properly granted
upholding a prison practice of returning to
sender mail that violates prison policy without
providing a procedure for the inmate to
protest the rejection where the plaintiffs
"presented no evidence showing that prison
administrators drew distinctions between
incoming mail based on anything oth~r than
implications for prison security, as alleged by
prison officials." (367) In other words, this
court construes Thornburgh v. Abbottas
overruling the procedural portions of
Procunier v. Martinez as well as the substantive standard, completely failing to apply any
sort of procedural due process analysis.

advanced no specific penological interest
justifying it. The district court also failed to
address the plaintiff's claim that the policy
was applied to him in a retaliatory manner.
The district court should have considered
and not ignored the plaintiff's claim that he
was entitled to reasonable amounts of free
paper, envelopes and legal postage under the
Interstate Corrections Compact because he
would have had these things in Kansas, from
which he had been transferred.

Procedural Due Process-Disciplinary
Proceedings/Federal Officials and
Prisons/Habeas Corpus
Bostic v. Carlson, 884 F.2d 1267 (9th Cir.
1989). Federal prisoners may utilize habeas
corpus to seek return of good time, release
from disciplinary segregation, or expungement
of a disciplinary finding that is likely to affect
parole eligibility.
Postponement of a disciplinary hearing did
not deny due process when the hearing was
held within eight days of the incident; even if
prison regulations had a shorter limit, failure
to follow it would not deny due process.
Conviction of possession of contraband
when the incident was described in the notice
as stealing did not deny due process where the
prisoner was placed on notice of the facts
underlying the charge.

Women/Administrative SegregationHigh Security/Federal Prisons and
Officials/Social and Political Expression/Transfers
Baraldini v. Thornburgh, 884 F.2d 615
(D.C.Cir.1989). Inmates transferred to a high
security unit for women challenged their
placement on First Amendment grounds. The
district judge found that they were placed
there "solely for their 'subversive' statements
and thoughts." The court of appeals holds that
that finding is clearly erroneous and that
defendants' focus was on the propensity and
ability of organizations that the plaintiffs
were associated with to bring about escapes. At
620: "A reviewing court must always be
careful to make certain that prison administrators are not pretextually using alleged
concerns in order to punish an inmate for his
or her political or other views, or for past or
present membership in organizations
espousing anti-establishment or even
governmental overthrow philosophies."
The right of the plaintiffs to hold violent or
revolutionary views or belong to organizations
that espouse them do not require prison
authorities to ignofe those views in assessing
the dangers that they may escape. The fact
that they had behaved during their several
years of incarceration did not preclude prison
officials from relying on information about
their behavior before they were incarcerated.

Pre-Trial Detainees/State, Local and
Professional Standards/Personal Involvement and Supervisory Liability/
Pendent Claims/State Law in Federal
Courts
Reid v. Kayye, 885 F.2d 129 (4th Cir.1989). A
North Carolina statute requires state officials
to develop minimum standards for local jails
and to visit and inspect them semi-annually. It
also prOVides that in the event of noncompliance state officials" may order corrective
action or close the facility" (emphasis
supplied). In the absence of a mandatory duty,
the state officials' inaction is not a "cause" of
alleged constitutional violations, and relief
may not be ordered against them under § 1983.
Nor may they be held liable under more conventional notions of supervisory liability. At
132: "The legislative policy is clearly aimed at
assisting localities, not at controlling or
overseeing them.... [The state defendants]
cannot be considered supervisors because they
are not in control of local jails and do not have
the responsibility to remedy substandard
conditions."

Access to Courts/CorrespondenceLegal and Official/Postage and Materials/Non-Constitutional Rights/
Transfers
Smith v. Erickson, 884 F.2d 1108 (8th Cir.
1989). An allegation that prison officials
refused to provide any free postage for legal
mail stated a constitutional claim.
An allegation that prison officials refused to
mail legal mail that was not in envelopes
purchased in the prison canteen should not
have been dismissed where the defendants

Use of Force
Miller v. Leathers, 885 F.2d 151 (4th Cir.1989).
Where a guard knew a close custody prisoner
had a proclivity for violence and the prisoner
had earlier directed a racial insult and threats
of physical harm, it was not "wanton or
unnecessary" to hit him three times with a
baton, breaking his arm, when the prisoner
refused an order, turned to confront the guard,
and sexually insulted his mother. (The inmate
was handcuffed at the time.) Summary
judgment was properly granted to the

12 SPRING 1990

defendant. The court ignores evidence
favorable to the plaintiff, such as threats made
by the defendant and the allegation that the
defendant repeatedly poked the plaintiff in
the back with his stick before the actual
altercation.
The allegation that the officer violated
prison regulations by.removing him from his
cell without supervision is at most "a matter
between Leathers and his supervisors." (154)
The dissenting judg~ points out that this fact
could well support an inference of intent to
harm on the part of the defendant. The
majority adds, "Whil~ restraint in the face of
provocation may stilI have remained the
course of wisdom, we cannot say that the
measured force employed on Miller's handcuffed wrists was of a wanton and obdurate
kind." (155)
This opinion reads Graham v. Connor as
holding that the Whitley v. Albers standard of
"obduracy and wantonness" applies to all
prison use-of-force cases.

Communication and Expression/Telephones/Visiting/Pre-Trial Detainees
United States v. DeSoto, 885 F.2d 354 (7th Cir.
1989). The district court properly ordered that
a criminal defendant indicted for trying to kill
a prosecution witness, her children, and the
prosecutor, be denied all telephone calls except
to counsel and all visits except from counsel
and be isolated from any conversation or other
contact with other inmates.
Typewriters
Jackson v. State ofArizona, 885 F.2d 639 (9th
Cir.1989). An allegation that prisoners were
not allowed to carry personal typewriters to
the law library did not state a claim because
there is no constitutional right to the use of a
typewriter.
Municipalities/Searches-PersonArrestees/Crowding
Thompson v. City ofLos Angeles, 885 F.2d
1439 (9th Cir.1989). Municipal liability may be
premised on a "custom" (i.e., a "'permanent and
well-settled' practice") irrespective of whether
official policymakers actually knew about it.
"The existence of custom as a basis for liability
under § 1983 thus serves a critical role in
insuring that local government entities are
held responsible for widespread abuses or
practices that cannot be affirmatively
attributed to the decisions or ratification of an
official government policymaker but are so
pervasive as to have the force or law." (1444)
Acounty policy requiring all new jail
admittees to undergo a strip search was
constitutional as applied to the plaintiff, who
had been arrested for grand theft of an
automobile, an offense "sufficiently associated
with violence to justify a visual strip search."
(1447)
The requirement of an x-ray and blood
sample on admission was also constitutional;
"the County's interest of diagnosing severe
medical problems to prevent transmission of
serious disease among the general population"
THE NATIONAL PRISON PROJECT JOURNAL

renders them reasonable under the Fourth
Amendment. (1447) Such tests might violate
the Fourth Amendment "if conducted in an
linnecessarily cruel, painful or dangerous
manner." (N. 7)
"[S]everal courts have held that a jail's
failure to provide detainees with a mattress
and bed or bunk runs afoul of the commands
of the Fourteenth Amendment." (1448) The
plaintiff's undisputed allegation that he had to
sleep on the floor for two nights stated a
constitutional claim.

Consent Decrees/State Officials and
Agencies
Duran v. Carruthers, 885 F.2d 1485 (10th Cir.
1989). The district court properly declined to
vacate parts of a consent decree. Prison
officials argued that much of the relief was
based on state law and was therefore barred
by the Eleventh Amendment under the
holding of Halderman v. PennhurstState
School and Hospital However, the challenged
provisions "[a]rguably...relate to, or tend to
vindicate, federally protected rights" (especially under a "totality of conditions" analysis)
and the defendants waived their right to make
plaintiffs prove this at trial by settling the
case. The relevant limit is not Pennhurstbut
Local No. 93 v. City ofCleveland, which holds
that consent judgments are valid if they spring
from and serve to resolve a dispute within the
district court's subject matter jurisdiction and
their terms come within the "general scope" of
the complaint and further its objectives. The
court relies on the Second Circuit decision in
Kozlowski v. Coughlin.

Monitoring/Attorneys' Fees
Duran v. Carruthers, 885 F.2d 1492 (10th Cir.
1989). Attorneys' fees may be awarded for
post-judgment monitoring activities despite
the existence of a Special Master and defendants' "internal monitoring structure." (Ed.
note: On January 22, 1990, the Supreme Court
denied the defendants' petition for a writ of
certiorari in Duran.)

Pre-Trial Detainees/Suicide Prevention/Municipalities/Mental Health
Care
Cabrales v. C(Junty OfLos Angeles, 886 F.2d
235 (9th Cir.1989). The Supreme Court decision
in Canton v. Harris, imposing a "deliberate
indifference" standard for claims of unconstitutional application of a constitutional policy,
does not require modification of the court's
previous decision (vacated and remanded after
Canton). In this jail suicide case, the policy of
understaffing the jail with psychiatrists was
itself alleged to be unconstitutional under a
deliberate indifference standard and there was
no need to determine separately whether the
county could be held liable for an unconstitutional application of the policy.

Federal Officials and Prisons/Good
Time/Equal Protection
Moss v. Clark, 886 F.2d 686 (4th Cir. 1989).
District of Columbia prisoners in federal
THE NATIONAL PRISON PROJECT JOURNAL

prison do not get the benefit of the D.C. Good
Time Credits Act as do prisoners in D.C.
institutions. The distinction does not deny
equal protection of the laws.

Classification-Race/Procedural Due
Process-Disciplinary Proceedings
Propst v. Leapley, 886 F.2d 1068 (8th Cir.
1989). Ablack inmate and a white inmate got
into a prolonged fight; the white inmate was
found guilty and punished and the black
inmate was found not guilty. The district
court's finding of no discrimination was
clearly erroneous in view of the evidence.

Access to Courts/Typewriters
Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989).
Incases involving indigent prisoners' right to
supplies for court access, "we have not
hesitated to reject constitutional claims of
entitlement to resources which no prisoner
could possibly require to have 'meaningful'
access." These include typewriters and "free
and unlimited photocopying." The "maximum
or even the optimal level of access" is not
required. "[T]he Constitution does not require
the elimination of all economic, intellectual
and technological barriers to litigation." (1169)
The court adopts the Third Circuit's rule
that actual injury must be shown in court
access cases unless they involve the "core
requirements" of adequate law library or legal
assistance. Denial to the plaintiff of his own
memory typewriter and carbon paper did not
deny court access.

Contempt/Crowding/Financial
Resources
Morales-Feliciano v. Parole Board Of
Commonwealth ofPuerto Rico, 887 F.2d 1(1st
Cir.1989). Imposition of fines of $50 per excess
inmate per day, increasing by $10 per inmate
each month thereafter, was a proper means of
enforcing a 35-square-foot per inmate
crowding limit. The court rejects defendants'
claim of "substantial" compliance where up to
700 inmates were held in violation of the
order. The court also rejects defendants' claim
of "good faith" efforts to comply. The test is
impossibility, and rapid growth in prison
population does not satisfy the test in view of
the long time (almost two years) defendants
have had to comply.

Sanitation/Laundry/Damages/Length
of Stay/Personal Involvement and
Supervisory liabilitY/Qualified Immunity
Howard v. Adkison, 887 F.2d 134 (8th Cir.
1989). The plaintiff was placed in a protective
custody cell with walls covered with human
waste and a torn mattress stained with urine
and feces. He was denied access to cleaning
supplies and was forced to use a sock and
water to clean his cell. This went on for two
years. He was also denied laundry services for
five months, allegedly because he did not have
a laundry bag, and his laundry was returned
wet and dirty. He was given only a dirty
blanket and half a sheet. Ajury found an

Eighth Amendment violation and awarded the
plaintiff $500 in compensatory damages, $750
in punitive damages and several thousand
dollars in punitive damages against the
warden and two other supervisors. The court
upholds these awards against supervisory
personnel, who should have known about
them in view of tlieir long duration and the
plaintiff's complaint.

Qualified Immunity
Haynes v. Marshall, 887 F.2d 700 (6th Cir.
1989). There is no merit to defendants'
argument that tHey are entitled to qualified
immunity for any use of force that occurred
before the Supreme Court decision in Whitley
v. Albers. The contours of the right were
sufficiently clear that they should have
known that beating a prisoner to near death
and leaving him to die violates the Eighth
Amendment.

Pre-trial Detainees/Unsentenced
Convicts and Convicts Held in Jails/
Monitoring and Reporting/Crowding/
Class Actions-Effect ofJudgments
and Pending Litigation/Judicial
Disengagement/State, Local and
Professional Standards
Roberts v. Tennessee Dept. ofCorrection, 887
F.2d 1281 (6th Cir.1989). In a dispute between.
county jail officials and state prison officials
over state-ready backups in the jail, the
appellate court approves a settlement and
recommends that it be used as a model in
similar cases in the state. It provides for
removal of a set number of state-ready
inmates, the designation of an "Implementation Coordinating Committee" to "facilitate
cooperation and to resolve technical and
procedural problems," the transfer of stateready inmates to state prison based on their
length of stay in jail after sentencing, and the
transfer of remedial issues pertaining to
population limits to the court in which
statewide prison crowding litigation (Grubbs
v. Norris) is pending. "That judge shall resolve
competing constitutional claims of prison and
jail inmates regarding population issues" and
"shall have jurisdiction of all matters
pertaining to the setting, modification and
enforcement of population limits in local jails."
(1284)
The Grubbscourt will appoint a Consultant
for Local Corrections under Rule 53, to be paid
by the defendants. The Consultant will
recommend population limits and a limiton
state ready inmates for each jail and will make
recommendations on how to achieve those
limits. The Consultant and the Implementation
Coordinating Committee "will not recommend
the immediate release of inmates at a state or
local level unless all other measures have been
considered." (1284) If the recommended
population limit is different from the
standards of the Tennessee Corrections
Institute, reasons shall be given.
The terms of the.order shall terminate in
three years or when the Grubbs state prison
population limit is removed, if both district
SPRING 1990 13

..:

tutional, but classification relief may be
ordered if the classification system is
determined to contribute to an unconstitutionallevel of violence. (686)
A"pervasive and constant threat of personal
harm to inmates from attacks by other
inmates" is found based on testimony about
gang activity, fights involving large numbers
of inmates, and large numbers of serious
injuries. (686-89)
Deficiencies in staffing, exercise opportunities and classification contribute to violence in
the jails, as did the "pod man/phone man"
system by which some inmates exercised
supervision over others. Crowding also contributes to Violence, if not directly, then by
impairing the classification system, recreation
opportunities, and the disciplinary system.
(688)
The availability of two untrained jailhouse
lawyers did not excuse the inadequacy of the
law library, nor did the availability of visits
with criminal attorneys address the right of
access with respect to matters other than their
current criminal matters. (688-89)

Remedial Principles/Use of Force/Protection from Inmate Assault/Modification of Judgments/Classification/
Protective Custody/Crowding

courts involved "are satisfied that the unconstitutional conditions which were linked to
overcrowding have been corrected." (1286)
In a companion case, after a district court
finding of unconstitutional jail conditions, the
court directs the transfer of crowding-related
remedial issues to the Grubbs v. Norris court.
Carver v. Knox County, Tenn., 887 F.2d 1287
(6th Cir.1989).

DISTRICT COURTS
Medical Care-Standards of LiabilityDeliberate Indifference/Sanitation,
Hygiene/Recreation and Exercise,
Length of Stay, Mootness/Classification, Protection from Inmate Assault;
Negligence, Deliberate Indifference
and Intent/Staffing-Surveillance,
Prisoners as Staff/Law Library and
Law Books, Inmate Legal Assistance
Gilland v. Owens, 718 F.Supp. 665 (W.D.Tenn.
1989). "Sanitary living conditions and personal
hygiene are among the necessities of life
protected by the Eighth Amendment.... Courts
are extremely reluctant, however, to find
constitutional violations based on temporary
deprivations of personal hygiene and
grooming items." (684) The lack of opportunity for exercise violated the Constitution.
Crowding and lack of staff do not provide a
penological justification. (685)
Lack of classification is not unconsti14 SPRING 1990

Fisher v. Koehler, 718 F.Supp. 1111 (S.D.N.Y.
1989). The court previously found that
inmate-inmate and inmate-officer violence
violated the Eighth Amendment and now
enters judgment after a year-long remedial
process.
Defendants must establish a classification
system reflecting inmates' history of violence
and must keep records of violent infractions
for use in classification. Defendants will be
reqUired "to remove from dormitory housing
those with a history of particularly violent
and predatory behavior." Protective custody
inmates may be held in dormitories as long as
those with a history of violence are kept out
and those "whose vulnerability or history of
violence requires their separation" are placed
in cells. Protective custody inmates shall not
be commingled in a housing area with other
categories of inmates.
The court sets an outer population limit of
2,600 rather than the limit of around 1,800
sought by plaintiffs; the defendants "persuasively argued" that they should have the
chance to show that they can reduce violence
by other means, particularly classification. The
use of double bunks is not prohibited, but they
may not interfere with or obstruct sight lines
from the officer's station. The housing of
inmates in receiving rooms, gymnasiums and
other common areas is prohibited.
The court rejects the plaintiffs' proposals to
take use of force investigations away from jail
supervisors and give them to independent
investigators. Various other reporting,
investigation and training requirements are set
out.
Disciplinary proceedings against officers
accused of brutality or cover-ups are subjected
to a 90-day time limit for processing.

Access to Courts-Assistance of
Counsel-Legal Assistance
Houtz v. Deland, 718 F.Supp. 1497 (D.Utah
1989). Asystem of providing "contract
attorneys" to state prisoners rather than a law
library met constitutional standards, and a
two-month delay in.having his case reviewed
did not violate the plaintiff's rights, especially
where there was no evidence of prejudice.

Juveniles/Pre-Trial Detention
Doe v. Borough ofClifton Heights, 719 F.Supp.
382 (E.D.Pa. 1989). The Juvenile Justice and
Delinquency Preve.ntion Act, which provides
that a state obtaining certain kinds of funding
must not incarcerate juveniles with adults,
provides a private right of action enforceable
under § 1983 only against state and local
agencies eligible for funding, and not against
the officers who arrest the juvenile.

Pre-Trial Detainees/Municipalities/
Medical Care-Standards of LiabilityDeliberate Indifference/Training
Eastv. City ofChicago, 719 F.Supp. 683
(N.D.Ill.1989). An allegation that another
arrestee told the police that the decedent, just
arrested for a drug offense, had swallowed
some cocaine, and that the police ignored the
warning, stated a claim under the deliberate
indifference standard, as does an allegation
that another officer looked at the decedent,
concluded he was asleep, and did nothing.
The need for use-of-force training for police
officers is "'so obvious' that failure to do so
could properly be characterized as 'deliberate
indifference' to constitutional rights." (694)
The same is not true of the failure to recognize
and respond to symptoms of cocaine ingestion.

Visiting
Ross v. Owens, 720 F.Supp. 490 (E.D.Pa.1989).
Aclaim that the plaintiff's 16-year-old son was
not allowed to visit him because the son did
not have any identification was frivolous.
Prison officials could not prevent the son from
visiting without the consent of his legal
guardian because state law said that members
of a prisoner's "immediate family" did not
require such permission.

Women/Monitoring and Reporting/
Contempt/Equal Protection7Programs
and Activities
Glover v.johnson, 721 F.Supp. 808 (E.D.Mich.
1989). The court of appeals had reversed the
district court's appointment of an "administrator" to enforce orders concerning equal
prison program opportunities for women.
Defendants are held in contempt, but the court
concludes that a remedy designed by experts,
not a punitive remedy, is more likely to result
in parity.

John Boston is a staffattorney at the
Prisoners'Rights Project, Legal Aid Society
ofNew York.
THE NATIONAL PRISON PROJECT JOURNAL

Resolved: High Schoolers Should
Debate Prison Overcrowding
BY CHUCK MORTON
ach year in the United States, high
school inter-scholastic debate
focuses on a single broad topic
called "the resolution." This academic
year, 1989-90, the resolution challenges
students to develop examples of how the
government could decrease overcrowding
in federal prisons and jails. As a result,
approximately 50,000 high school
students from Bangor, Maine to Los Angeles, California are researching and
discussing prison issues. In the process,
they are gaining a greater awareness of
this important topic.
The competition takes place at multidebate tournaments which may draw as
many as 200 teams from all over the
country.
Students are called upon to defend
examples of the resolution they have
chosen and to attack those chosen by
their opposition. As a result, the debaters
need to be well-versed on both sides of
the topic. Novel argumentative positions
are Jikely to catch opponents off-guard
and are, therefore, eagerly sought by advocates on both sides.
As a debate coach during this season, it
has been exciting to see students wrestle
with creative ideas to decrease overcrowding. While many teams advocate
decriminalization of drugs, reforms in
sentencing or bail laws, many others, primarily for strategic reasons, try to think
of ways to only nominally decrease the
numbers of those incarcerated.
Competitive debate occurs in the
context of an intellectual exercise, not a
litigative forum. Thus, in the "real"
world, a federal judge may be compelled
to uphold a position if it were to show
that certain conditions resulted in
deprivation of Eighth Amendment rights.

E

Rebecca Tushnet (right)
and her partner, Daniel
Nexon, nationally
ranked debaters from
Washington, D.C.,
advocate the legalization
of drugs or the
expansion of community
corrections to solve
overcrowding.

THE NATIONAL PRISON PROJECT JOURNAL

Debaters often gather thousands of pages of evidence in support of their position.
Here, debaters seem at a 1055 as to how to carry it all.
.

BY REBECCA TUSHNET
hen arguing for the overturning of u.s. v. Salerno, a
controversial 1987 Supreme
Court decision against the rights of the
accused, one debater regularly tells
judges that "[Chief Justice] Rehnquist
is the Antichrist." The ACLU wrote an
amicus brief in this case, and debaters
often mention it, calling the ACLU
either "crazy liberals" or brave
defenders of vital civil liberties.
Some ideas to decrease overcrowding get pretty wild. One team advocated ending the extradition of
Colombian drug dealers-all 12 of
them. The opposing team quickly
pointed out that this had very little
relevance to most prisoners.
Many students have
become much more aware
of how the trend towards
increasing sentences has affected the prison system. At
the Dartmouth summer
debate camp, Chuck Morton
" visited and showed the
~ students pictures of the dis1 gusting conditions in which
is prisoners are too often kept.

W

Most were shocked and horrified; they
wondered how the system could be so
callous. Afew argued that criminals
were completely evil and deserved
such punishment, but the majority
tried to convince them that some
punishments are inhumane and only
degrade the prisoners.
Another case calls for abolishing
prison for all but the most depraved of
crimes, and flogging or using electroshock on all other offenders. The
defenders claim that prisons are
inherently dehumaniZing, and that a
short, sharp shock is a better punishment that the long, drawn-out torture
and degradation inflicted in prisons.
Although it's intuitively ridiculous,
judges vote for it more often than not,
since it's such an unusual idea that
opponents rarely know what to say.

Rebecca Tushnetisajuniorat
Georgetown Day School in Washington,
n.c. where she competes on the debate
team. She is the daughter ofGeorgetown
University Law Schoolprofessor Mark
Tushnet and Elizabeth Alexander, chief
staff counsel at the National Prison
Project.
SPRING 1990 15

•
In the "debate" world, however, a judge
might share that conclusion, but still
decide that it is worth a violation of
constitutional rights to accomplish a
greater good.
High school debate is intensely
competitive and grueling. These young
adults travel all over to argue against the
most challenging opponents. While their
friends at home go to football games and
pizza parlors, the debaters shout about
the public's likely reaction to a policy of
early release of prisoners.
In return for this investment, students
develop critical thinking and enhance
their research and organizational skills.

And, this year, students are learning
about the plight of the more than 700,000
people imprisoned in this country. Their
collective voice is another in the growing
chorus of those who realize that prisons
are in crisis, and solutions need to be
found soon through thoughtful dialogue.

Chuck Morton, a third-year law student
at the University ofMaryland, worked as
an NPP law clerk in summer1989. That
summer he also lectured at several
debate camps and is currently debate
coach at Georgetown Day School He
debated in college at the University of
Vermont.

Childrens' rights advocates would like to see training schools closed and care for youthful offenders
shifted to community-based programs.

16 SPRING 1990

THE NATIONAL PRISON PROJECT JOURNAL

I

r

I

I

b

te
BY JUDY GREENSPAN
Book Review: Preventing AIDS, A
Guide to EHective Education for the
Prevention of HIV Infection, Nicholas Freudenberg DrPH, American
Public Health Association, 1989.

n late 1986, amid underfunded yet
heroic efforts by the young AIDS
activist community and the public
health sector to tackle the growing AIDS
epidemic, Dr. Nicholas Freudenberg
undertook an important project: writing a
book for AIDS educators. Reasoning that
education was the key factor in fighting
AIDS, Dr. Freudenberg interviewed
instructors from over 135 grassroots AIDS
education programs to enable people "to
learn from each other and to discuss
their successes and failures." Preventing
AIDS, A Guide to Effective Education for
the Prevention ofHIVInfection, is an
important tool for AIDS educators in or
outside of prisons and jails. It is critical
reading for those setting up AIDS or
public health education programs in the
communities hit hardest by the epidemic.
AIDS struck initially at two stigmatized
communities, gay men and IV drug users,
a fact which contributed to the slow
public health response to the epidemic.
In the early days, AIDS activists received
little or no assistance from established
public health organizations to stem the
tide of the disease. For this reason,
grassroots AIbs activists and educators
became suspicious of people from
professional backgrounds. Dr. Freudenberg knew that the grass roots activists
were the real "experts" in this new
movement but that public health still
held some of the analytic tools and
knowledge necessary to make these educational programs successful. His book
attempts to bring together these two
necessary elements.
PreventingAIDS provides the political
and social context necessary to interpret
this crisis. As Freudenberg travelled
around and talked with such groups as
the Minority AIDS Project in Los Angeles,
the Up Front Drug Information Project in

I

THE NATIONAL PRISON PROJECT JOURNAL

Miami, Florida, the New Orleans AIDS
Task Force in Louisiana, and People
Concerned about AIDS in Salt Lake City,
Utah, he realized that educators had to be
prepared for the political implications of
the AIDS epidemic, and be prepared for
political battle. "For AIDS educators,"
writes Freudenberg, "the social and
political forces that surround and
permeate the epidemic make their daily
work seem like walking through a
minefield."
The author tackles all of the difficult
political issues which must be examined
in AIDS education programs: homosexuality, racism, drugs, and sexual behavior.
The first part of the book demonstrates
how communities can set up their own
AIDS education programs. "Educating for
Health: AFramework for AIDS Educators"
(Chapter 3), provides models for health
education planning and a sample
checklist for assessing the community's
needs for AIDS education. This section is
key for educators attempting to set up
relevant programs in the Black and
Latino communities and in prisons.
Dr. Freudenberg discusses the controversy surrounding testing for the Human
Immunodeficiency Virus (HIV) and the
role that the AIDS counselor plays in the
testing process. HIV testing in prison may
unfortunately lead to discrimination
against the HIV-positive prisoner. Test
results may become general knowledge,
subjecting the prisoner to threats by
miseducated prisoners and corrections
staff.
However, knowledge of test results can
be an important factor in inhibiting
high-risk behavior such as unprotected
sex or needle sharing. Dr. Freudenberg
believes that the role of the counselor/
educator is to "help clients change the
behaviors that put them at risk of HIV
infection."
The second part of the book is divided
into chapters exploring AIDS education
programs in communities of gay and
bisexual men, intravenous drug users,
African Americans, Latinos, youth,
women, prisoners and homeless people.
There is a great deal of frank discussion
about the problems faced by AIDS

educators in r~aching their particular
communities.
Avaluable l\sting'of resources is
located at the back of PreventingAIDS,
which includes a reading list as well as a
gUide to organizations currently involved
in AIDS education efforts. This book is
available from the American Public
Health Association, 1015 Fifteenth Street,
N.W., Suite 300, Washington, D.C. 20005 at
the cost of $22 plus $4/postage and
handling for non-APHA members, and
$17.50 for APHA members.

In the next issue of theJOURNAL,
Greenspan will report on her interview
with Dr. Freudenberg and her travels to
New York City's Rikers Island, where she
witnessedfirsthand the AIDS education'
efforts being made there.

FOR THE RECORD
• More than 200 judges, lawyers, police,
probation officers, detention personnel,
social workers, mental health professionals, social workers, and educators convened in Missouri last June for a National
Forum on the Disproportionate Incarceration of Minority Youth in America. The
Forum, sponsored by the National Council
of Juvenile and Family Court Judges
(NCJFCJ) under a grant from the State Justice Institute, was held to examine issues
raised by statistics from the U.S. Census
which report that African American, Hispanic, Asian American, and Native American youth are incarcerated in detention
facilities and public training schools at a
rate of four to one of their general
population.
The Forum made policy recommendations to NCJFCJ, which in early 1990 will
publish a 'Judicial Response to the Disproportionate Incarceration of Minority
Youth in America." For more information,
contact David Gamble at NCJFCJ, 702/7846012.
• The National Coalition of State
Juvenile Justice Advisory Groups has
SPRING 1990 17

called upon President Bush to appoint a
task force to investigate why AfricanAmericans, Hispanics, Native Americans
and other minorities are overrepresented
at all stages of the juvenile justice system.
"In 1977," the Coalition reported, "minority youth represented 45% of those in
custody. Today, the figure is closer to 55%."
The State Advisory Groups urged
Congress to hold public hearings on race
issues in juvenile justice, and called upon
the Office of Juvenile Justice and Delinquency Prevention (OJJDP) to fund
research on the effects of "police
surveillance practices, offender demeanor, and police apprehension
practices," as well as the criteria used by
judges to decide whether to detain youths
accused of crimes, and dispositional
guidelines used to impose sanctions on
those found guilty.
For a copy of the Coalition's report
contact Marion Mattingly, 8801 Fallen
Oak Drive, Bethesda, MD 20817, 301/4696580.
• Despite mandates of the Juvenile
Justice and Delinquency Prevention Act
which forbid the confinement of status
offenders in locked facilities, a new study
by the Center for the Study of Youth
Policy has found that hundreds of
youths, especially girls, are being held.
Offenses include running away, truancy,
and "incorrigibility."
On a given day in 1987, 2.2% of the
26,000 youths held in public training
schools were held for status offenses. The
a.

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::i5

"

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...

18 SPRING 1990

l"
;;;

percentage of male status offenders was
1.1%, compared to 10.9% for females.
According to the Center, the paternalistic
attitudes of judges are responsible for the
disparity in incarceration rates.
The report, entitled "The Incarceration
of Girls: Paternalism or Juvenile Crime
Control?", is available at no cost from the
Center for the Study of Youth Policy,
University of Michigan School of Social
Work, 1015 E. Huron St., Ann Arbor, MI
48104,313/747-2556.
• The National Center on Crime and
Delinquency (NCCD) released a recidivism study last December showing that
the Massachusetts Department of Youth
Services has been more successful at
reducing crime among juveniles than
other states studied. Massachusetts
incarcerates only the violent offenders, a
policy which saves taxpayer money
without compromising public safety,
according to the report.
"Unlocking Juvenile Corrections" cites
the growing number of juveniles imprisoned last year-53,000-as the highest
number in American history.
"This data," said Dr. Barry Krisberg,
president of NCCD, "puts to rest the
notion that public safety is at risk or that
juveniles are more likely to offend if
placed in a community-based system.
States relying on institutions alone to
handle violent and nonviolent offenders
are costing their citizens more money,
and returning to society a youth who is
virtually unchanged."

In the 1970s, Massachusetts closed its
large training schools and developed a
network of small (I5-bed) secure programs for serious offenders, and a wide
range of community-based supervision
programs for the remainder of its 1,700
committed youth.
"Unlocking Juveilile Corrections" is
available from NCCD for $8 per copy. To
order, send a check, noting the name of
the publication, to NCCD Publications,
685 Market St., Suite 620, San Francisco,
CA 94105, 415/896-6223.

• The Veterans Advocate-A new
monthly publication, successor to Veterans Rights Newsletter and Veterans Law
Reporter, is concerned with veterans' law
and advocacy; offers timely information
on changes in VA laws, regulations and
procedures; covers current developments
in matters related to veterans' benefits,
such as the Court of Veterans Appeals,
Agent Orange, discharge upgrading,
military records corrections, VA overpayments, actions for medical malpractice
and pending legislation in veterans' law;
includes advocacy tips and practical
advice to those representing veterans and.
their dependents.
Free of charge to certain veterans'
service organizations, including incarcerated veterans organizations and self-help
groups. $30 per year to private attorneys,
governmep.t. National Veterans' Legal
Services Project, 2001 SSt. NW, Suite 610,
.Washington, D.C. 20009-1125,
202/265-8305

l

blications
TheJail Litigation
St3;tus Report gives a

The National Prison
Project Status Report

The National Prison
ProjectJOURNAL, $25/yr.
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, education, employment and financial aid. 8th
Edition, published December
1988. Paperback, $25 prepaid
from NPP.

Bibliography of Women
in Prison Issues. A

1990 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.
$5 prepaid from NPP.

AIDS in Prisons: The
Facts for Inmates and
Officers is a simply written
educational tool for prisoners, corrections staff, and
AIDS service prOViders. The
booklet answers in an easyto-read format commonly
asked questions concerning
the meaning of AIDS, the
medical treatment available,
legal rights and responsibilities. Also available in
Spanish. Sample copies free.
Bulk orders: 100 copies/$25.
500 copies/$100. 1,000 copies/
$150 prepaid.

A Primer for Jail Litigators is a detailed manual
with practical suggestions for
jail litigation. It includes
chapters on legal analysis, the
use of expert witnesses, class
actions, attorneys' fees, enforcement, discovery, defenses'
proof, remedies, and many
practical suggestions. Relevant case citations and correctional standards. 1st Edition, February 1984. 180 pages,
paperback. (Note: This is not a
"jailhouse lawyers" manual.)
$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

QTY. COST

state-by-state listing of cases
'involving jail conditions in
both federal and state courts.
The Report covers unpublished opinions, consent
~ecrees' and cases in progress
aS'well as published decisions. The Report is the
first nationwide compilation
of litigatiol} involving jails.
1st Edition, published
September 1985. $15 prepaid
from NPP.

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.

$2/yr. to prisoners.

the history of the prisoners'
rights movement and surveys
the state of the law on
various prison issues (many
case citations). 24 pages, $3
prepaid from NPP.

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

QTY.COST

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Fill out and send with check payable to:

Name

The National Prison Project

Address

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1616 P Street, NW
Washington, D.C. 20036

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SPRING 1990 19

lighligh_ts.:.....::-·

T

he following are major developments in the Prison Project's litigation program since December 1,
1989. Further details of any of the listed
cases may be obtained by writing the
Project.
Casey v. Lewis-This new case was
filed in January 1990 and challenges
medical care, legal access and due process
procedures in the entire Arizona state
prison system. We have also moved to
reopen an old case, Black v. Lewis, which
challenges conditions in CB6, the
administrative segregation unit of the
Arizona State Prison. Black settled in 1985
and was dismissed in 1988. In response to
reports of deteriorating conditions in
CB6, we conducted extensive prisoner
interviews which confirmed those
reports and prompted the motion to
reopen.
Duran v. Carruthers-This is a
totality of conditions case against the
entire New Mexico state prison system. In
response to an important Tenth Circuit
decision in September denying defendants' motion to vacate or modify the
terms of the consent decree, the defendants filed a petition for certiorari with
the Supreme Court of the United States.
Attorney generals from 40 other jurisdictions joined in requesting that certiorari
be granted. We filed our opposition to
cert. the last week of December 1989. On
National PrisoQ. Project
American Civil liberties Union Foundation
1616 P Street, NW, Suite 340
Washington, D.C. 20036
(202) 331-0500

20 SPRING 1990

January 22, 1990 the Supreme Court
denied defendants' petition and the lower
court has now begun issuing favorable
opinions and orders on long-pending fee
applications.
Harris v. Thigpen-This case challenges the AIDS testing and segregation
policies of the Alabama Department of
Corrections. On January 8, 1990, the trial
court issued an opinion denying relief to
the plaintiffs on all claims and dismissed
the case. He also rejected plaintiffs' § 504
claim seeking reintegration or at least
separate but equal programming. He
rejected Eighth Amendment medical care
and mental health claims as well, basing
his decision on financial considerations,
noting that Alabama is a poor state. We
have filed a notice of appeal with the
Eleventh Circuit.
Inmates of Occoquan v. BarryThis case challenges conditions at the
District of Columbia's Occoquan prison
facilities. In December, the judge held a
hearing to elicit an adequate plan to
remedy constitutional violations. The
defendants agreed to approximately 90%
of the items in what we considered to be
an effective plan. The judge will consider
remaining isslles.
Palmigiano v. DiPrete-This case
challenges conditions in the Rhode Island
state prison system. On December 5, 1989,
the judge held a hearing on the current
state of compliance. The hearing also
covered our request for additional sanc-

_
tions beyond the contempt fines already
imposed per the court's April 6, 1989
order. In February 1990, the court
appointed a prominent "court expert" to
assist it in current proceedings after the
defendants moved to modify the various
court orders which led to the earlier
contempt holdjng,s. '
Plyler v. Nelson-This is a statewide
conditions case in South Carolina. On
February 15, 1990, the district court issued
a favorable opiil!Ondenying the defendants' motion to modify or vacate doubleceIling restrictions at the state's main
women's prison.
Tillery v. Owens-This case challenges
conditions at the Western Penitentiary in
Pittsburgh. Defendants filed a notice of
appeal in response to the district court's
September 15 decision. The September
decision found in favor of the plaintiffs
on almost all issues and ordered the
cessation of double-ceIling.

u.s. v. Michigan/Knop v.}ohnsQnThis is a statewide Michigan prison
conditions case. At our request, the trial
court scheduled a contempt hearing
dealing with defendants' interference
with the monitoring process. On January
16, the trial court found the defendants
in contempt for failure to execute their
monitoring responsibilities appropriately.
In Knop, on December 11, the Sixth
Circuit scheduled briefing on the appeal
of the attorneys' fees order.
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