A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL 5, NO.3, SUMMER 1990· ISSN 0~48-2655
'Iii

,

In Pennsylvania, 200 Years ofPractice
Doesn't Make Perfect
BY; STEFAN PRESSER

Pproximately 200 years after
Pennsylvania opened the world's
first penitentiary, the state
Department of Corrections has found
itself on the verge of collapse. As a result
of either riots or threats of riots, it has
been forced to put one after another of
its institutions on lockdown. With its
third largest facility burned to the
ground, Pennsylvania's acting corrections
commissioner on March 7 of this year

A

faxed the following message to his
colleagues: "Please be advised that we
have reached the critical point of zero
available beds in the Department of
Corrections," while noting that "new
commitments continue to arrive at an
accelerated rate."
While the Department has just
recently lost control of its operation, the
problems inherent in the penitentiary
system are as old as the concept itself.
The idea of the penitentiary was based
on the Quaker belief that "the best way
to reform criminals was to lock them in

State police with helmets and shotguns patrol outside perimeter at Camp Hill
State Prison in Pennsylvania, last October.

cells and keep them alone-in total and
unrelieved solitude-day and night."1
Accordingly:
The sentenced inmates were kept alone
and indolent in tiny cells with sman
grated windows so high atop the
outside wall of the cell that they could
perceive neither heaven nor earth;'
they existed without conveniences or.
communication ofany kind. Inmates
were given work to do alone in their
cen and eventually together in small
groups....There was no socialization or
even communication...
Each cell was itselfa completeprison
unto its occupant. At no time did the
inmates leave their cells to work, eat
or to do anything else except to
exercise'in their own sman attached
courts. Solitary labor was to be the key
to moral regeneration within prison
walls.2
Notwithstanding the humane motivation of its founders, this system was
abandoned because, ",..Instead of communing with God and becoming purified,

State police lining up outside the state correctional institution at Camp Hill,
Pennsylvania, during the October 1989 disturbance.

the men imprisoned went insane,
committed suicide, or died due to the
extreme conditions. As Thomas Mott
Osborne, one of our foremost prison
administrators, has said, 'In attempting to
reform men by forcing them to think
right, by locking them in a
solitary cell with a Bible, the
Quakers showed a touching
faith in human nature,
although precious little
knowledge of it.'''3 Their
successors in the Department
of Corrections seem to have
gleaned little more of
human nature in the ensuing 200 years.
Over 19,000 individuals were being
held in 13 state prisons meant altogether
to hold no more than 12,000. On the night
of October 23, 1989, a number of prisoners
at Huntingdon refused to lock down after
dinner. Whether due to double-ceIling,
cutbacks in prllgrams and other services,
or to some other factor which will never
be fully understood, on that night about
25 prisoners began a rampage.
Huntingdon then went on 24-hour
lockdown which lasted for much of the
rest of that fall.
Two days later the Department lost
control of its second largest prison. Built
in 1941 with a capacity of approximately
1,800 beds, Camp Hill was by then
housing over 2,600 inmates. As a result,
inmates' access to medical, legal, and
programmatic opportunities had diminished to a point where many prisoners
remained idle for the duration of their
incarceration. Inmate frustration finally
exploded as word of further cutbacks in

medical and visitation programs circulated. On October 25, at approximately
2:45 p.m., an inmate attack on a guard
turned into a general melee. Over the
course of the next several hours prisoners
seized hostages and control of several
buildings. From
these hostages,
the prisoners
were able to
obtain cellblock
keys as well as
radios which
they used to
begin negotiations with the Department.
By mid-evening, negotiations had
resulted in a commitment from the
prisoners to release the hostages, and to
return voluntarily to their cells in
exchange for the Department's promise to
continue the dialogue over inmate
grievances. Even though officials knew
that Camp Hill's security system had been
badly damaged, they allowed inmates to
return to their cells without further
search. When the following day's
negotiation proved fruitless from the
inmates' perspective, they simply released
themselves and proceeded for a second
straight day to seize control of the
institution. During the second melee, a
large part of Camp Hill went up in
flames. For the better part of a day and a
half, prisoners held nearly 1,000 correctional officers and state police at bay.
To the extent that the Department had
been nonchalant in its response to the
first incident, officials now acted with
draconian overkill to retake Camp Hill.

Two days later the
Department lost
control of its second
largestprison.

2 SUMMER 1990

Having quelled the riot, officers stripped
prisoners to their underwear. Each was
flexicuffed as well as shackled to another
inmate. They remained out-of-doors in
that state of undress and restraint for the
next three days during brutally cold
weather. When the prisoners were at last
brought back indoors, they remained
cuffed and shackled. They remained in
these restraints for the next 14 days,
despite the fact that each cell was now
triple-padlocked, until the Pennsylvania
ACLU could secu~ a federal court order.
The world didJfot learn of these
conditions (or tfutt the Department was
notproviding toilet paper, mattresses,
pillows, or showers) until the first
postcards began trickling out of Camp
Hill. So bizarre and barbaric were these
descriptions that when they were first
brought to ACLU's attention, I simply
refused to accept them at face value. It
was only after corrections officials
confirmed the shackling-intended to be
of indefinite duration-that we decided
to file for injunctive relief, even though
the Department assured us that prisoners
were not without toilet paper, clothing,
mattresses, and the like.
Despite corrections officials' protestation that prisoners were not being
abused, the testimony in Arbogastv.
Oweni' proved that the shackled inmates
were being forced to sleep in a state of

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Uberties Union Foundation
1616 P Street, N.W.
Washington, D.C. 20036
(202) 331-0500
The National Prison Project is a tox-exempt foundationfunded project af the ACLU Foundotion 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; ond to develop alternatives to
incarceration.

The reprinting of JOURNAL materiol is encouraged with
the stipulation that the Notional Prison Project JOURNAL
be credited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materiols and suggestions
are welcome.

THE NATIONAL PRISON PROJECT JOURNAL

undress on the concrete cell floor.
Moreover, unrebutted testimony established that the Department was not
providing such essentials as toilet paper.
While I never doubted that Judge Rambo,
to whom this case was assigned, would
order that basic items of civilization be
afforded, it was not at all clear whether
she would force the state to unshackle
our clients. We were especially pleased
when the court concluded:
The measures taken to restrain the
inmates is much more a matter of
institutional security. However, given
the general disdain for the use of
shackles to restrain inmates (see cases
cited in Plaintiffs' memorandum at
4-5) and thefact that the cells at
camp Hill are locked with three
different mechanisms, the court
believes that the continued use of
shackles is not necessary. In any event
the court cannot say thatplaintiffs
lack a reasonable probability of
success on the merits of their claims so
as to preclude them from obtaining
injunctive reliej5
Within days of the entry of this order,
the Department put its largest facility on

lockdown to avoid another Camp Hill.
With 3,400 prisoners, Graterford was not
only one of the nation's largest prisons
but was at that time 1,000 prisoners over
capacity.
As of the writing of this article, the
situation is so bad that in order to
alleviate overcrowding at Graterford
(the population of which is now ovet:;i,
4,000), the Department is contempll,l,ting
moving several hundred Graterford':~
inmates to Camp Hill, which is stiltih the
process of being put back on line. it
Sadly, one can only conclude that if
Pennsylvania, with its 200 years of
experience, cannot make the penitentiary
system work, it is time for some creative
alternative forms of punishment. _
lR. Goldfarb & L. Singer, After Conviction (1973).
'[d. at 24-25.
3[d. at

37.
41:CV-89-1592 (M.D.Pa.1989)'
5Memorandum And Order (November 8, 1989 at p. 4).

Stefan Presser is the legal director Of the
ACLUofPennsylvania.

The.Lost Meaning of

Whitley v. Albers
B¥ MA.RK LOPEZ
A.ND DllVID FATMI

raditionally, the Eighth Amendment prohibition against "cruel and
unusual punishment" has meant
different things in different contexts.
When a prisoner complained of overcrowding and deleterious conditions, an
Eighth Aml;Jldment violation was
established if he could show "wanton and
unnecessary infliction of pain," Rhodes v.
Chapman,! to be measured by the oftquoted "totality of conditions" test. Hutto
v. Finney.2 If he alleged that he was being
denied medical care, or protection from
assault by other prisoners, the standard
used was "deliberate indifference." Estelle
v. Gamble,3 Davidson v. Cannori'.
In 1986 the Supreme Court for the first
time introduced an explicit intent
requirement into Eighth Amendment
jurisprudence, holding that a prisoner
injured while authorities are suppressing
a prison riot can recover only if officials
used force "maliciously and sadistically
for the very purpose of causing harm."

T

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THE NATIONAL PRISON PROJEG JOURNAL

Whitley v. Albers.5
Many courts, in their enthusiasm to
extinguish prisoners' rights, have sought
to extend Whitley's "malicious and
sadistic" threshold far beyond the prison
riot context to coverall uses of force by
prison authorities and, more importantly,
all Eighth Amendment claims involving
prison conditions.
Whitley v. Alberi' was brought under
42 U.S.C. § 1983 by a prisoner who had
been shot by a guard in the course of
quelling a prison disturbance. The prisoner alleged that the shooting violated
his Eighth Amendment right to be free
from cruel and unusual punishment.
The Court, by a five-to-four margin,
decided in favor of the prison officials.
The Court first outlined the general
standard for establishing violations of
the Eighth Amendment: "It is obduracy
and wantonness, not inadvertence or
error in good faith, that characterize the
conduct prohibited by the Cruel and
Unusual Punishments Clause, whether
that conduct occurs in connection with
establishing conditions of confinement,
supplying medical needs, or restoring

official control over a tumultuous
cellblock."7 In the context of a prison riot,
officers demonstrated obduracy and
wantonness only if they used force
"maliciously and sadistically for the very
purpose of causing harm."8 Since, according to the Court, there was no evidence in
this case that prison officials had acted
"maliciously and sadistically," the district
court had properly directed a verdict in
their favor.
Justice Marshall, in dissent, protested
the majoritY1 invention of a separate,
"especiallyo.lJerous" standard for Eighth
Amendment'!violations during prison
unrest. 9 But, although Whitleywas
unquestionably a step backwards,
prisoner rights advocates hoped it would
be confined to its facts, thus inflicting
minimal damage on Eighth Amendment
law.1O
The Whitle.y court did not purport to
extend the new "malicious and sadistic"
standard to all Eighth Amendment
claims. In fact, it specifically reaffirmed
the holding of Estelle, that "deliberate
indifference" to prisoners' serious
medical needs violates the Eighth
Amendment, noting that "the State's
responsibility to attend to the medical'
needs of prisoners does not ordinarily
clash with other equally important
governmental responsibilities."ll By its
terms then, Whitley seemed to be limited
to cases involving prison uprisings.
Instead, however, lower courts hostile to
prisoners have expanded Whitley far
beyond those situations. Unless the
Supreme Court reverses this trend soon,
what began as a narrow exception now
threatens to swallow the entire Eighth
Amendment.
Indeed, the dissenters in Whitley
foresaw this potential. "The Court
imposes its heightened version of the
'unnecessary and wanton' standard only
when the injury occurred in the course of
a 'disturbance' that 'poses significant
risks,' [citation]. But those very questions-whether a disturbance existed and
whether it posed a risk-are likely to be
hotly contested."12 In Whitley itself, for
example, the majority brushed aside
evidence that the disturbance was
substantially over by the time the shots
were fired. Similarly, in many subsequent
cases in the lower courts, "disturbance"
has been very broadly construed.
For example, in Cowans v. Wyrick,13 a
prisoner, locked in his cell, refused to
shut a food service door. Aguard responded by slamming the door on the
prisoner's hand. The Eighth Circuit held
that the prisoner's refusal was a "disturSUMMER 1990 3

bance indisputably pos[ing] significant
risks to the safety of inmates and prison
staff," and employed the Whitley
"malicious and sadistic" standard to
reverse a judgment for the prisoner.14
Other courts are more candid about their
expansion of Whitley. In Ort v. White,15
the Eleventh Circuit stated its view that
"[a]lthough Whitley was decided in the
extremely volatile context of a prison
riot, its reasoning may be applied to other
prison situations requiring immediate
coercive action" It then found that a
prisoner's refusal to carry a water keg
required such "immediate coercive
action."
The Fourth Circuit may have gone the
furthest in expanding Whitley to cover
all use of force in prison. That court
recently stated: "While the particular
setting of Whitley involved a prison riot,
the standard announced in that case is
not limited to the quelling of institutional disturbances. The Whitley standard
applies to any claim of excessive force to
subdue [a] convicted prisoner, [citation]
or to prophylactic or preventive measures intended to reduce the incidence
oLany other breaches of prison discipline." Miller v. Leathers. 16 The Miller
court affirmed summary judgment for a
guard who had struck a handcuffed
prisoner three times with his baton,
breaking his arm, when the prisoner
refused an order and insulted the guard's
mother. Other courts have applied the
Whitley "malicious and sadistic" standard
to the use of force on a prisoner in the
mess hall,17 and to a guard's use of a baton
on a prisoner's neck when he refused to
enter his celLIs
Fortunately, not all courts have
collapsed the distinction between
quelling a prison riot and all other uses of
force. In Meriwether v. Coughlin,19
prisoners engaged in a nonviolent protest
were beaten by guards. The Second
Circuit declined to apply the Whitley
"malicious and sadistic" standard,
"because no riot was occurring..., nor was
there even, according to the jury, the
degree of unrest that defendants
claimed."20 The Ninth Circuit has similarly declined to apply Whitley to body
cavity searches, where the circumstances
giving rise to the searches "did not
constitute an ongoing prison disturbance
[and] the officers were not confronted
with an instantaneous decision whether
to conduct the searches in the manner
described."2l Bolin v. Blacfi2 did involve a
prison riot, but prisoners were beaten
after the riot was over and prisoners had
been locked down. The Eighth Circuit
4 SUMMER 1990

distinguished Whitley and Cowans,
tack. In Cody v. Hillard,28 that court,
because "[i]nthe instant case, the beatings sitting en bane, reversed the district
complained of by the prisoners occurred
court's order ending double-celling at the
a/terany threat to institutional security
South Dakota State Penitentiary. The
had been quelled.''23
court noted the officials' "sincere efforts
It seems likely that the Supreme Court . to maintain a healthful environment,"
will eventually resolve this conflict in
.~ and concluded that "[t]his hardly reflects
the application of Whitley to use of force '~'~'obduracy and wantonness.'''29 The focus
in prisons. However, it is already clear
. on prison officials' state of mind, rather
that at least three justices are disposed t<>;;;.' ,than on the objective conditions faced by
read that case expansively. Justice
.~.; prisoners, is consistent with the intent
O'Connor has stated her belief, joined b~,~~
requirement of Whitley.
Chief Justice Rehnquist and Justice
The implicatioI1§ of the Wilson and
Kennedy, that Whitley should not be
Cody decisions ar~not difficult to predict.
limited only to "full-blown prison riotS."24 Under the standard announced in those
These attempts to extend the Whitley
cases, almost no Eighth Amendment
"malicious and sadistic" standard to all
claim involving conditions of confineuse of force cases are disturbing. But far
ment can be successful, because the test
more ominous are moves to apply that
focuses on the defendants' state of mind
standard to all Eighth Amendment cases,
rather than the objective harm to
specifically those involving ongoing
prisoners. Obviously no administrator
conditions of confinement. Under this
houses prisoners in filthy, overcrowded
approach, prisoners complaining of
conditions without access to medical care
contaminated food or unsanitary
out of malicious cruelty; it occurs as a
conditions in their cells must show that
result of underfunding, inadequate
prison officials deliberately caused these
staffing, or administrative incompetence.
conditions, "maliciously and sadistically
To require prisoners to prove otherwise is
for the very purpose of causing harm."
to impose an almost impossible burden
Obviously such a shOWing, requiring a
and essentially to read the Eighth
probe into the psyche of prison adminisAmendment out of the Constitution.
trators, is extraordinarily difficult to
Moreover, whatever reasons might
make. Nor can such a requirement be
arguably support the "malicious and
reconciled with the high Court's previous
sadistic" standard in the prison riot
decisions in Hutto and Rhodes, which do
context are attenuated or nonexistent
not require such an exacting inquiry.
when continuing conditions are at issue.
Perhaps the most unequivocal stateFirst, the interest in avoiding the secondment to date is the decision of the Sixth
guessing of prison officials is at its zenith
Circuit in Wilson v. Seiter.25 Ohio prisonwhen they are making split-second, lifeers mounted an Eighth Amendment
and-death decisions during an emergency.
challenge to numerous conditions of
This is not the case with conditions that
their confinement, including overcrowdhave persisted essentially unchanged for
ing, excessive noise, inadequate heating
months or years. Second, prison officials
and cooling, and unsanitary eating
are experts in prison security; deference
conditions. Purporting to follow Whitley,
to them is and should be at its height
the court of appeals affirmed the trial
when they make security judgments
court's grant of summary judgment for
regarding the use of force. Where they
the defendants.
make judgments about medical care,
The court first noted that "at least in
nutrition, and environmental health and
this circuit, the Whitley standard is not
safety, they have no special competence
confined to the facts of that case; that is,
and deference is less appropriate.
to lawsuits alleging use of excessive force
It should be emphasized that the
in an effort to restore prison order."26 It
decisions in Wilson and Cody do not
then proceeded to make the standard
represent the unanimous view in the
even more onerous than Whitley had
circuits. Indeed, several sister circuits
done: "the Whitley standard of obduracy
have expressly refused to apply the
and wantonness requires behavior
"malicious and sadistic" standard to
marked by persistent malicious cruelty.''27
conditions cases. Thus, in Foulds v.
Since the defendants' affidavits stated
Corley,30 the Fifth Circuit explicitly
that they had made some attempts to
rejected the trial court's application of
remedy the conditions complained of,
Whitley to a conditions case involving
they could not have acted with the
solitary confinement. "The facts of the
requisite "persistent malicious cruelty;"
instant case markedly differ. There was
thus, summary judgment was appropriate. no imminent danger. We decline the
The Eighth Circuit has taken a similar
invitation to extend the rule of Whitley
THE NATIONAL PRISON PROJECT JOURNAL

I

II

to cover all prison disciplinary actions,
ostensibly under the guise of achieving
prison security."31 A different panel of the
Fifth Circuit has similarly stated that the
heightened Whitley standard does not
apply to continuing conditions of
confinement. "Prison conditions may
violate the eighth amendment even if
they are not imposed maliciously or with
the conscious desire to inflict gratuitous
pain."32
Similarly, in LaFaut v. Smith,33 a
handicapped prisoner claimed he had
been denied the basics of personal
hygiene. The Fourth Circuit, in an
opinion by Justice Powell, sitting by
designation, rejected attempts to apply
the heightened Whitley standard to this
claim. "Whether one characterizes the
treatment received by LaFaut as inhumane conditions of confinement, failure
to attend to his medical needs or a
combination of both, it is appropriate to
apply the 'deliberate indifference'
standard articulated in Estelle to this
case."34
Finally, in Morgan v. District of
Columbia,35 the District of Columbia
Circuit likewise rejected application of
the Whitley standard, and applied the
"deliberate indifference" standard to a
prisoner's claim that officials had failed
to protect him from assault by a fellow
prisoner:

The exigencies and competing obligationsfacing prison officials while
attempting to regain control ofa riotous
cellblock, which led the Court to conclude
that the "deliberate indifference»
standard was inadequate in Whitley, are
notpresent in this case. The gravamen of
Morgan's claim is the District's overcrowding of theJai4' the conduct Morgan
challenges is the municipality's operation of theJail generally. In this context
unlike in the prison riot setting, there can
be no legititnate concern that liability
will improperly be based on "decisions
necessarily made in haste, under
pressure, andfrequently without the
luxury ofa secOnd chance. »Whitley, 106
S.Ct. at1085. The District'spractice of
overcrowding has endured since at least
1971 We therefore conclude that "deliberate indifference» was the appropriate
standard by which to judge the District's
conduct in this case.

.

The National Prison Project has filed a
petition for a writ of certiorari in Wilson
v. Seiter, urging the Supreme Court to
review and reverse the Sixth Circuit's
decision in that case. If certiorari is
granted, the Supreme Court's decision
will almost certainly determine the

I

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THE NATIONAL PRISON PROJECT JOURNAL

course of prison litigation for years to
come. The Wilson court and others have
served notice of their intention to make
it virtually impossible for prisoners to
successfully challenge the conditions of
their confinement. Unless the Suprem<:
Court takes this opportunity to reversd'
this alarming trend, there will once a~in
be an "iron curtain drawn between t~
Constitution and the prisons of this,;~'.'
country."36 _
1452 U.s. 337, 347.
2437 u.s. 678, 687-688 (1978).
3429 U.s. 97, 104 (1976).
4474 u.s. 344, 347 (1986).
5475 u.s. 312, 320-321 (1986).
6475 U.s. 312 (1986).
7475 u.s. at 319.
8475 U.s. at 320-321.
9475 U.S. at 328 (Marshall,]., dissenting).
IOAccording to the Whitley majority, the case involved
a"prison riot" at the Oregon State Penitentiary. One
officer was assaulted, and another taken hostage.
Prisoners were armed and had set up barricades, and
"the cellblock remained in the control of the
inmates." One prisoner warned officials that a
prisoner had already been killed and other deaths
would follow (in fact, there were no deaths). Faced
with this situation, prison authorities mounted an
armed assault to quell the disturbance. Several
prisoners were wounded by gunfire, including the
plaintiff, who had not participated in the uprising.
475 u.s. at 314-316, 322-323.
"475 u.s. at 320.
12475 U.s. at 329 (Marshall,]., dissenting).
13862 F.2d 697 (8th Cir.1988).

14862 F.2d at 699-700. Judge McMillian, concurring
specially, questioned whether the incident
constituted a"prison disturbance." [d. at 701.
15813 F.2d 318, 323-325 (11th Cir. 1987).
16885 F.2d 151, 153 (4th Cir.1989), internal quotation
marks omitted.
17Corselli V. Coughlin, 842 F.2d 23, 25-26 (2d Cir.1988).
"Brown v. Smith, 813 F.2d 1187, 1188-1189 (llth Cir.
1987).
19879 F.2d 1037 (2d Cir.1989).
20
879 F.2d at 1048.
21 Vaughan v. Ricketts, 859 F.2d 736, 742 (9th Cir.1988).
22875 F.2d 1343. <lith Cir.1989), cert. denied,_U.S'---l
110 S.Ct. 542, 10~ ~.Ed.2d 539 (1989).
23875 F.2d at 1~5R emphasis in original.
24 Dudley v. Stubbs, - U.S.-, 109 S.Ct. 1095, 1097, 103
L.Ed.2d 230 (1989) (O'Connor,]., dissenting) (mem.).
25893 F.2d 861 (6th Cir.1990), cert. pending.
26893 F.2d at 866.
27893 F.2d at 867.
28830 F.2d 912 (8th Cir.1987) (en bane), cert. denied,
485 u.s. 906,108 S.Ct.l078, 99 L.Ed.2d 237 (1988).
29830 F.2d at 915.
30833 F.2d 52 (5th Cir. 1987).
31833 F.2d at 54.
32Gillespie v. Crawford, 833 F.2d 47, 50 (5th Cir. 1987),
partially vacated on othergrounds, 858 F.2d 1101,1103
(5th Cir.1988) (en bane).
33834 F.2d 389 (4th Cir. 1987).
34834 F.2d at 391-392.
35824 F.2d 1049, 1057-58 (D.C. Cir.1987).
36 Wolff v. McDonnell, 418 U.S. 539, 555-556 (1974).

Mark Lopez and David Fathi are staff
attorneys with the National Prison
Project.

ForgingJustice After 200 Years
200 Years ofthe Penitentiary: Breaking
Chains, ForgingJustice, is a year-long project
of the American Friends Service Committee
(AFSC) designed as a springboard for renewed analysis and debate on national
criminal justice policy.
The Project coincides with the 200th year
since the building of the first penitentiary
in the United States in 1790. The Religious
Society of Friends (Quakers) and others
developed the idea as an alternative to
corporal and capital punishment.
AFSC was founded in 1917, as the service
arm of the Religious Society of Friends. The
Committee felt that it was appropriate to
use this 200th year after the founding of the
penitentiary as a time for reassessment of a
model that Quakers helped create.
The Project's goals are:
_ To broaden public debate by focusing
on root causes of crime, drug abuse, violence
and on the increased imprisonment of
people of color and poor people;
_ To involve in the debate those most

affected by crime and imprisonmentAfrican Americans, Latinos, Native Americans, Asian Americans and poor people;
_ To change public policy on economic
and social issues connected to the crisis in
the criminal justice system;
_ To plan both long-term, fundamental
changes in the criminal justice system as
well as immediate reform.
The Project will sponsor and participate
in a variety of commu!1ity action projects. lt
will organize a series of hearings; conduct
public education tours of prisons; and act as
an information clearinghouse offering
speakers and research on model state and
national criminal justice legislation.
October 20, 1990 will be a day of nationally coordinated activities to dramatize the
issues, generate debate and develop strategic
solutions.
For more information, contact Linda
Thurston, Project Coordinator at AFSC, 1501
Cherry Street, Philadelphia, PA 19102,
215/241-7130.
.
SUMMER 1990 5

Instead of Death:
Alternatives to Capital Punishment
Until we give up the illusion that
puttingpeople to death is a
solution to the crimeproblem, we
will never develop alternatives that
willprotect us and enhance the
value ofhuman life in a civilized,
just society.
-The Fellowship of Reconciliation
n 1952, sociologist Arthur Lewis
Wood, in one of the few published
examinations of substitutes for the
death penalty, observed that the use of
life sentences "has caused an excessive
accumulation of inmates in many of our
state prisons. The pressure of this
condition and perhaps the increasing
acceptance of individualized treatment

I

have encouraged, at least in some states,
the more frequent use of the traditional
powers of executive clemency and court
discharge by selective release of these
prisoners."l
More recently, the Fellowship of
Reconciliation's Capital Punishment
Program probed more deeply into specific
actions society could take when confronted by violent behavior instead of
the death penalty. Life imprisonment,
they suggest, "provides for something
that death does not-an opportunity for
the natural maturation process to occur
and for society to re-examine its responses to behavior."2 The Fellowship
concluded that hospitalization and medical treatment for some capital offenders
and restitution and compensation for
victims merit further examination.
In the mid-1970s, the prestigious

Committee for the Study of Incarceration
boldly proposed that sentences longer
than five years should be abolished
except for certain types of murder or in
exceptional instances requiring predictive restraint. In the case of murder, the
committee outlined the following
sentencing scheq.,e:
Murder, the·rftost serious ofcrimes,
presents spectalproblems because of
the diverse circumstances under
which it is committed. Having a single
presumptivepenalty might require
unduly wide discretionary variations
to accommodate killings Of varying
degrees ofgravity. It may bepreferable
to prescribe separatepresumptive
penaltiesfor distinct kinds Of murder:
(J) murders stemmingfrom personal
quarrels, (2) unprovoked murders of
strangers, (3) political assassinations,

There are various alternatives to the death penalty. Most state laws provide for life sentences for capital murder
which severely limit or eliminate the possibility of parole. At least 10 states have life sentences under which
parole is not possible for 20, 25, 30 or 40 years and at least 18 states which have life sentences with no
possibility of parole at all.

D

States with
States with
III States with
If[] States with
III States with
III States with
•

death penalty•
death penalty, or life without parole.
death penalty, or life without parole for at least 20 years.
no death penalty.
no death penalty, with life without parole.
no death penalty, with life without parole for at least 20 years.

Alaska and Hawaii have no death penalty and no life without parole.

6 SUMMER 1990

Source: Ronald J. Tabak and Mark J. lane, The Execution of
Iniustice: A Cost and Lack-of-Benefit AnalYSiS of the Death
Penalty, 23 loyola of los Angeles, l. Rev., 126-127 (19901.

THE NATIONAL PRISON PROJECT JOURNAL

and (4) especially heinous murders,
such as those involving torture or
multiple victims. Five years might be
the norm for the personal-quarrel
situation, with longerpresumptive
sentencesfor the other three categories.
This approach would have the
additional advantage that the
homicides that cause the mostpublic
outrage-those in the last three
categories-would be
dealt with separately:
were there only a single
presumptivepenalty, it
would tend to become
inflated to accommodate
the more shocking
homicides.3
Except for these and
several other proposals,
abolitionists have given inadequate
attention to what should replace capital
punishment. Instead, they have largely
focused, justifiably, on restricting and
ending its use. Unfortunately, in the
absence of detailed discussion of alternatives to the death penalty, life without
parole, currently the most politically
acceptable alternative, overshadows
more humane options. In the absence of
broader discussion, the tendency is to
define penalties by their eqUivalency
with the capital penalties they are
supposed to replace. Life without parole
as an alternative to the death penalty is
but one example of the way "reform"
proposals are shaped in reaction to,
instead of as a challenge to, conservative
crime control strategies.
A Historical Dilemma

Capital punishment's greatest
strength-for those who support it-is the
clarity of its retributiveness, the sense
that capital offenders got what they
deserved or, at least in the caSe for
murderers, they got what they gave. As
with the clanging of the prison cell door,
the clarion call for capital punishment is
that the death penalty is concise in its
finality not only for the executed but
also for those who apply it or approve its
application. Once done, justice is done. For
death penalty proponents, justice is more
a specific action than a process. Once
done-proponents like to think-there's
nothing more to think about; society no
longer bears any responsibility.
In times past, the death penalty was
meted out for a wide variety of offenses.
Nineteenth and twentieth century
advocates against the death penalty
succeeded in whittling away the number
of capital crimes. Their ally was the
THE NATIONAL PRISON PROJECT JOURNAL

inherent disproportionality of killing
someone who did not kill someone else.
Ever since the death penalty was
abolished for rape, however, the major
focus of anti-death penalty strategies has
been to eliminate death penalty statut~s
for people who have killed.
~'
Historically, death penalty abolitiort~s
have been weak in suggesting altern:!';;'
tives. Generally, they've taken one 9f.lwo
approache~;

First, so~~rgue
that it s~mi>ly
isn't necessary
to propose an
alternative. The
primary struggle
is to abolish the
death penalty.
This is a handy
device because in fact it would be a nice
step forward if we simply abandoned
capital punishment regardless of whether
we knew what to implement in its place.
Nonetheless, it begs an important
question, namely, what do we do when
people kill other people? Moreover, it
leaves the door open for unsatisfactory
alternatives, e.g., life without parole.
Second, others have accepted less-thanideal alternatives. Frequently, these
alternatives are bleak and problematic in
themselves. In the mid-1800s, for instance, reformers such as Robert Rantoul
Jr. in Massachusetts succeeded in reducing
the number of offenses for which one
could receive a death sentence. But the
alternatives offered were draconian.
Rantoul suggested placing offenders in a
deep dark pit (only years before Connecticut and Maine had built prisons at
former mining sites).
Current initiatives by anti-death
penalty governors, such as Michael
Dukakis of Massachusetts or Mario Cuomo
of New York, to garner support for life
without parole can be seen in this same
dim light. What they offer is a political
ameliorative, a strategy to convince
enough legislators to keep the death
penalty from becoming state law.
Unfortunately, there is much to be said in
favor of this approach-it may indeed
keep people from being executed-but it
nonetheless also begs the question-what
do we do when people kill other people?
Seeking Alternatives to the Death
Penalty

Historically, despite periods of waning
public support for capital punishment,
the level of public support has long
confronted death penalty opponents.
University of California historian Louis P.

Masur, in his new study, Rite ofExecution: Capital Punishment and the
Transformation ofAmerican Culture,
1776-1865, observes that antebellum antideath penalty activists, buoyed by
successes in reducing the number of
capital offenses but nonetheless confronted by seemingly strong public
support for capital punishment, feared
that "the total abolition of the death
penalty was still a long way off."4
Public sentiment favoring the death
penalty is of\en basted over the gristle of
political deblites on capital punishment.
But politicl(fleaders frequently overestimate the retributiveness of the public.
Political leaders commonly fail to understand what the public wants when it
raises its voice in capital cases, and rarely
use their leadership positions to inform
and influence public understanding.
According to criminologist Roger Hood,
"the suggestions that attitudes to the
death penalty are so deeply embedded
that they are impervious to the impact of
information about its administration and
effects has to be placed alongside the fact
that in many countries opinions have
changed, and quite markedly, over
relatively short periods of time."5
Hood, who directs the Centre for
Criminological Research at Oxford
University, turns to recent American
history for proof. In 1953, he writes, 66%
of Americans were said to favor capital
punishment. This figure was to fall to
40% in 1966 before rising to 71% in 1986.
"This would seem to indicate," Hood
surmises, "that there is a substantial body
of non-ideologically committed opinion
that can be affected in one direction or
another by information about crime and
the impact of punishment."
Indeed, sociological studies raise several
issues: first, they show that people feel
that American courts are more lenient
than they actually are; second, given
information about capital offenders, the
costs of execution, and alternatives to the
death penalty, people are less inclined to
support it.
In recent years, Amnesty International
and other reform groups have begun to
describe the complexities of public
opinion on the death penalty. At a time
when newspaper articles lazily refer to
what appears to be overwhelming citizen
support for capital punishment, Amnesty
has sponsored research surveys in
California, Connecticut, Florida, Georgia,
Kentucky, Maryland, and Oklahoma that
have found a groundswell of support for
alternatives.
Abrief review of several of these
SUMMER 1990 7

research projects suggests that public
support for the death penalty is not as
strong as proponents assert.6
• Californians prefer life without
parole plus restitution over the death
penalty by a margin of two to one.
Respondents to a December 1989 survey
believe that this addresses their concerns
that murderers remain in prison and that
something is done for victims. The survey
found that the public has many misconceptions about what capital punishment
"achieves." Finally, Californians were less
supportive of the death penalty when
they learned specific information about
offenders' backgrounds. Only one-fourth
of those polled, for instance, supported
executing the mentally retarded?
• Support for the death penalty among
Oklahomans would be reduced by 40% if
life without parole were substituted.
Support also diminishes among Oklahomans when the offender is a juvenile, is
mentally retarded, or has a history of
being abused as a child. Finally, Oklahomans are in a mitigating mood when
someone kills in a
"moment of rage" or is
under the influence of
alcohol or drugs.s
A Public
Information
Campaign Against
the Death Penalty
In May 1990, the
National Coalition
Against the Death
Penalty (NCADP) received a one-year
grant from the J. Roderick MacArthur
Foundation in Chicago to establish a
National Death Penalty Information
Center (NDPIC). NDPIC's primary purposes, according to Leigh Dingerson,
NCADP's executive director, are "to help
develop proactive media strategies
against capital punishment and to collect
and provide information about the death
penalty to the press."
Pessimistic views of public opinion
pervade much writing about the death
penalty and other criminal policy issues.
Several years ago, criminologists Franklin
E. Zimring and Gordon Hawkins observed
that "public opinion, political pressures,
the abdication of federal courts, and the
undisciplined performance of other
decision-making institutions all combine
to create a climate in which there will
probably be more, not fewer, executions
in the near future."9
The public opinion surveys done by
Amnesty International and other reform
8 SUMMER 1990

groups suggest that, like the Berlin Wall,
the notion of a vengeful public has
cracks and is crumbling. What these
studies clearly identify is the need for
public education; they show that public
opinion is both ill-informed and open to
alternatives to the death penalty. If the ~'
NCADP's National Death Penalty Informa-:J~
tion Center and state and local anti-deatlJ.(~'
penalty groups use this information to,.. ','
help shift media and policymaker
,.
perceptions, it is possible that other
factors identified by Zimring and
Hawkins-political pressures, etc.-would
become more fertile ground for developing criminal policies that do not rely on
death as an anchor.
Interestingly, Zimring and Hawkins do
not mention any specific alternative as a
pre-condition for abolition, including life
without parole. In part, they conclude
that enlightened leadership will guide
public opinion. They also argue that once
capital punishment is abolished, people
(they refer to victims' families) will
continue to call for
the harshest penalty
available. To the
extent that this is
true-Zimring and
Hawkins neglect the
views of murder
victim families that
oppose the death
penalty-it behooves
us as a civilized
society to temper
people's choices.
However, the
central questions remain. What instead of
death? And what role do these alternatives play in helping to abolish the death
penalty?
The simplest, most direct approaches to
a particular problem, business leaders say,
are most likely to succeed at producing
results. An honest accounting of the
"benefits" of capital punishment in this
country gives us nothing to brag about:
botched, painful, supposedly "painless"
executions; increased isolation as a nation
willing to kill as a matter of state policy;
and a Supreme Court that is more willing
to speed up the pace of executions than
to probe the realities of what Yale law
professor Charles Black once called the
"inevitability of arbitrariness and
caprice" in the adjudication and administration of the death penalty.
Like earlier discussions of alternatives
to the death penalty, this article is far
from complete, but perhaps it can be used
as a foundation for exploring future
alternatives.

Victim Services: When a person kills
someone, regardless of mitigating or
aggravating factors, there are victims.
These victims may be spouses, family
members, friends, neighbors, or coworkers. Similarly, when the state kills
someone, there are also victims with
equivalent relationships to the executed
person. Heretofore, the needs (to express
anger, to receive counseling, etc.) of these
victims, on either side of the crime
victim/criminal offender equation,
rarely receive at\Cntion. Some victim
support groups lJ-jlve specific projects
working with t;fturder victim families
and at least one state has developed
guidelines for working with family and
friends of murder victims. But more
needs to be done.lO In particular, services
to victims should be available regardless
of whether an offender has been
arrested, convicted, or sentenced.
Furthermore, these services should be
provided not as part of a sentencing
scheme but simply because they are
needed.
Demystifying Viol~nce: Murder is a
violent crime. Regrettably, especially in
the United States, it is not all that
uncommon. Still, the violence associated
with homicide is frequently spoken about
in extraordinary terms. In the process, we
seem to disempower ourselves from being
able to do anything sensible to address it.
But, with exceptions, many capital
murders-even sometimes the worst of
them-derive from cumulative or
immediate circumstances that have more
comprehensible roots. We are now
becoming more aware, for instance, of
the role that physical and sexual child
abuse have in shaping violent behavior
in some people,u We need to increase our
understanding of these root causes of
violence and how we can develop social
policies and programs to prevent, not
simply respond to, crime.
Sentencing Advocacy: Both legal and
popular articles on defense work in
capital cases are replete with references
to the inadequacy of legal counsel in
many instances. Less discussed, but
perhaps equally important, is the
inadequacy of sentencing advocacy. The
problem is two-fold: First, what are the
alternatives? Second, what process should
be used to develop appropriate alternatives? In recent years, defense-based
sentencing advocacy services, like those
used in non-capital cases, have been used
in Illinois, New Jersey, and other states.
These services must develop sentencing
plans that consider broader concerns,
including those of victims and their
THE NATIONAL PRISON PROJEG JOURNAL

families, than is the
case in most court
proceedings. If there is
a penalty more
humane and appropriate than life without
parole, for instance,
these plans can give
substance to these
claims. They provide
the court with a
concrete method of
meting out less
drastic, more constructive penalties.
New Penalties: It
isn't necessary or
politically wise to
take convenient shortcuts while fashioning a better response to violent crime.
Several years ago, a New Jersey court
suggested victim restitution as a condition of parole for a murderer in that
state. The victim's family had not been
consulted on the plan and raised a furor.
The parole was quashed.
Justice is a process as much as it is
individual actions. Accordingly, in
looking for alternatives to the death
penalty, we need to examine broader
concerns than the standard justifications
for punishment: rehabilitation, incapacitation, deterrence, and retribution. The
Safer Society Program of the New York
State Council of Churches, for instance,
proposes a community safety/restorative
model for communities wishing to
protect themselves against violence. The
basic principles are: safety is the first
consideration of the community; offenders must be made responsible and
accountable for their behavior; victims,
survivors, and the community have been
harmed and need restoration; the basic
conflict which caused this harm needs
resolution when possible; a continuum of
service and treatment options is necessary in a variety of settings; and a
coordinated systems approach is needed
to encourage cooperation between public
and private resourcesP _
lArthur Lewis Wood, "The Alternatives to the Death
Penalty," The Annals of The American Academy (Vol.
284), (November 1952), p.7!.
'The Fellowship of Reconciliation, Instead of the
Death Penalty, Nyack, NY: Capital Punishment
Project, n.d.
3Andrew von Hirsch; Doingjustice: The Choice of
Punishments, Boston, MA: Northeastern University
Press; (1986), p.l39.
'See, Louis P. Masur, Rites ofExecution: Capital
Punishment and the Transformation ofAmerican
Culture,1776-1865, New York, NY: Oxford University
Press, (1989).

THE NATIONAL PRISON PROJECT JOURNAL

5Roger Hood, The Death
Penalty: A World- Wide
Perspective, Oxford
University Press, New York,
(1990), p.l55.
60ther studies include:
"Capital Punishment in •
Connecticut," (Archdioces~40f
Hartford, 1987); "Attitudes;1p
the State of Florida on the .
Death Penalty: Executiy,e:i"
Summary of a Public Qpinion
Survey," (Amnesty ~J;
International, USA, 1~lt6);
"Georgia Residents' Attitudes
Toward the Death Penalty"
(Southern Coalition on Jails
and Prisons, 1987); "New
York Public Opinion Poll: The
Death Penalty: An Executive
Summary," (Amnesty
International, USA, 1989). For
a review of the findings of the earlier of these
reports, see Russ Immarigeon, "Public Supports
Alternatives to Executions," jericho, No. 43, (Spring
1987), p.II.
7Craig Haney and Aida Hurtado, Californians'
Attitudes About the Death Penalty: Results ofa
Statewide Survey, New York, NY: Amnesty International, (1989).

'Harold G. Grasmick and Robert Bursick Jr., Attitudes
of Oklahoma Toward the Death Penalty, Oklahoma
City, OK: University of Oklahoma, (1988).
9Franklin E. Zimring and Gordon Hawkins, Capital
Punishment and the American Agenda, New York,
NY: Cambridge University Press, (1986), p.149.
lOFor example, see Lyn Brown, Ruth Christie, and
David Morris, Families ofMurder Victims Project:
Final Repor~ London, England: National Council of
Victim Support, (April 1990).
llSee, Andrew Vachss, "Today's Abused Child Could Be
Tomorrow's Predator," Parade Magazine, Oune 3,
1990).
"Rev. Virginia MlIfkey, Restorativejustice: Toward
Nonviolence, Lo~i~viIIe, KY: Presbyterian Church
(USA), (1990). ··}l

Russ Immarigeon, a legislative associate with the New York State Assembly,
writes regularlyfor the NPPJOURNAL.
He is the co-author (with Meda ChesneyLind) of the repor~ Women's Prisons:
Overcrowded and Overused, that will be
available (for 13.50) in Septemberfrom
the National Council on Crime and
Delinquency, 685 Market St., Suite 620,
San Francisco, CA 94105, 415/896-6223.

FOR THE RECORD
_ Arecent report by the Correctional
Association of New York suggests that
New York State could save millions of
dollars a year in prison operation and
construction costs by expanding its use of
alternative punishments for those
convicted of nonviolent crimes.
The report, "Anti-Crime Strategies at a
Time of Fiscal Constraint," shows that the
state could save as much as $120 million a
year in operation and $600 million in
construction costs if they re-allocated
their resources by diverting nonviolent
offenders (roughly 61% of those sent to
state prison) into rigorous alternative
programs.
Atypical program for nonviolent
offenders would include mandatory
employment or vocationaIjeducational
training, drug or alcohol treatment
programs, community service, curfews
and strict supervision. The Association
also proposed early release of selected
inmates to intensive parole supervision,
community-managed residential
programs, and an amendment to the law
to allow good-time credits off minimum
prison sentences.
For information on how to obtain the
report, please write or call the Correctional Association of New York, 135 East
15th St., New York, NY 10003, 212/2545700.

_ Nearly one in four young Black men
between the ages of 20 and 29 is under
some type of correctional supervision
according to the report, "Young Black
Men and the Criminal Justice System: A
Growing National Problem." The report,
published by the Sentencing Project, also
points out that the number of young
Black men under correctional supervision
is greater than the number of Black men
of all ages enrolled in college. The 12-page
report is available for $250 from The
Sentencing Project, 918 FSt., Suite 501,
Washington, D.C. 20004, 202/628-0871.
_ Alvin}. Bronstein, executive director
of the National Prison Project, received a
Doctor of Laws degree, honoris causa,
from New York Law School on June 10,
1990. Mr. Bronstein, who is an alumnus of
the law school, also delivered the
commencement address to an audience of
over 3,000. Bronstein urged the law
school graduates to "proceed with a
commitment to moral reasoning...with a
feeling of social responsibility," noting
that "you can still make a difference." He
concluded the speech by quoting James
Baldwin: "We must continue to be
witnesses of our time; We must speak out
against institutionalized and individual
tyranny wherever we find it; Because if
left unattended, it threatens to engulf
and subjugate us all."
SUMMER 1990 9

...

Case~wReport
A PROJEO OF THE AMERICAN CIVIL LIBERTIES ~NION FOUNDATION, INC.
VOL. 5, NO.3, SUMMER 1990 • ISSN 0748- 26~§

.f;V-'

Highlights of Most
Important Cases
Mental Health Care/Medical Care
Prisoners have a substantive due process
right to avoid the involuntary administration
of antipsychotic drugs, according to the
Supreme Court's recent decision in Washington v. Harper, 58 U.S.Law Week 4249 (February
27,1990). But that right may be overcome if
medical personnel find that the prisoner
suffers from a mental disorder which is likely
to cause harm if not treated and as long as the
medication is prescribed and reviewed by
psychiatrists. As a procedural matter, the
prisoner need not be found incompetent in a
judicial proceeding and court authorization to
medicate need not be obtained. Apsychiatrist's
decision is sufficient as long as it is reviewed
by medical professionals who are not involved
in the prisoner's current treatment or
diagnosis.
In reaching these conclusions, the Court
cited the special characteristics of the prison
environment and prison officials' interest in
and duty to protect the safety of prison
personnel and other prisoners. It also relied
explicitly on the "reasonableness" standard
applied to prison regulations since Turner v.
Safley. Thus, it appears that the Court would
approve the compulsory use of antipsychotic
medications on J.tfisoners in situations in
which civilly committed persons could not be
forcibly medicated.
The Court assumed that "the fact that the
medication must first be prescribed by a
psychiatrist, and then approvedby a reviewing psychiatrist, ensures that the treatment in
question will be ordered only if it is in the
prisoner's medical interests, given the
legitimate ne~ds of his institutional confinement" 58 U.S.Law Week at 4253. In so
assuming, the Court glossed over its own prior
realization that prisons' institutional and
security considerations "can, and most often
do" impinge on prison medical services. Westv.
Atkins, 487 U.S. -------' n.15, 101 L.Ed.2d 40
(1988). The Court also ignored the fact that
what is in a person's "medical interest" is often
a matter of opinion and of values and not of
technical judgment-especially when the
10 SUMMER 1990

proposed treatment affects the patient's
mental processes and poses significant risks of
serious and irreversible side effects, as do most
anti-psychotropic medications.
The practical result of Harper will likely be
to shift most challenges to involuntary
medication to state courts applying state law.
Many states require some sort of judicial
authorization for coerced medication, either
by statute or under interpretations of state
constitutions, and some states' law makes no
distinction between prisoners and civilly
committed persons. See dissenting opinion of
Justice Stevens, 58 U.S.Law Week at 4262 n.ll.
Others-including Harper-provide for judicial
review of medication orders. In fact, Mr.
Harper may ultimately win his case; the lower
courts have not yet ruled on his state law
arguments.
In White v. Napoleon, 897 F.2d 103 (3d Cir.
1990), decided a few days before Harper, a
federal appeals court ruled more generally on
a prisoner's right to refuse medical treatment,
holding that such a right exists but that it may
be overcome "when prison officials, in the
exercise of professional judgment, deem it
necessary to carry out valid medical or
penological objectives.... [T]he judgment of
prison authorities will be presumed valid
unless it is shown to be such a substantial
departure from accepted professional
judgment, practice or standards as to demonstrate that the person responsible actually did
not base the decision on such judgment." 897
F.2d at 113.
In White, the plaintiff alleged that he
refused a course of treatment for an ear
infection because the doctor would not tell
him if the medication contained penicillin (to
which he was allergic), that the doctor
subjected him to disciplinary charges (later
dismissed), and that there was no medical or
penological justification for this conduct. The
court held that these allegations were
suffiCient to state a constitutional claim. But
this decision does not suggest what kinds of
medical or penological justifications might
suffice to overcome the right to refuse
treatment. There is little prior case law on this
subject, and the cases that do exist deal mostly
with anti-psychotic medications (see Washington v. Harper discussion above), examinations
and vaccinations for communicable diseases,
Zaire v. Dalsheim, 698 F.Supp. 57, 60 (S.D.N.Y.
1988) (diphtheria-tetanus injection); Ballard v.
Woodard, 641 F.Supp. 432, 436-37 (W.D.N.C.
1986) (tuberculosis test); Smallwood-El v.

Coughlin, 589 F.SuIP. 692, 699-700 (S.D.N.Y.)
(intake examinati.dn for communicable
diseases), or witl;1'threats to the prisoner's life,
where most courts have upheld compulsory
treatment based on the dangers to prison order
if a prisoner is allowed to die, or on the danger
that prisoners may use the threat of death to
manipulate the prison administration.

Procedural Due ProcessDisciplinary Proceedings
Arecent Supreme Court decision in a mental
health case may affect the extent of liability
in prisoners' due process suits. In Zinermon v.
Burch, 58 U.S.Law Week 33 (February 27, 1990),
the plaintiff alleged that he was denied
procedural safeguards required by state law
and due process in his admission to a mental
hospital. Hospital officials argued that their
acts, which violated state law, were "random
and unauthorized" and that the plaintiff's
only remedy was a tort suit in state court.
They cited the 1981 decision in Parratt v.
Taylor, which held that prison officers'
negligent loss of property did not deny due
process as long as the state provided a postdeprivation remedy in the form of a state
court damage suit.
The Supreme Court rejected the officials'
argument and held that Parrattdid not apply.
Admission to mental hospitals and failures to
follow required procedures are not "unpredictable," and providing pre-deprivation due
process is not "impossible"-in fact, state law
already made it mandatory. Therefore, the
Court held, a post-deprivation remedy did not
satisfy the Due Process Clause, and denial of
proper pre-deprivation procedures would be
unconstitutional. The Court also emphasized
that the defendant officials were the people to
whom the State had delegated both the power
and authority to confine citizens in mental
hospitals and the duty to observe procedural
safeguards. In effect, for due process purposes,
they are the State.
The same principles presumably apply to
prison disciplinary proceedings, administrative
segregation hearings, and other proceedings in
which a pre-deprivation hearing is required.
Thus, prison officials who violate due process
requirements will continue to face personal
liability under 42 U.S.C. § 1983 regardless of
whether there is a state remedy and regardless
of whether the State has created procedures
on paper that would satisfy due process when
followed.
Zinermon also clarifies who may be held
THE NATIONAL PRISON PROJEO JOURNAL

liable for due process violations: those whom
the State grants the power to restrict liberty
and the duty to provide procedural protections. An example of this reasoning-decided
before Zinermon but fully consistent with itis Scott v. Coughlin, 727 F.Supp. 806 (W.D.N.Y.
1990). There, a prisoner was twice
"keeplocked" (detained in his own cell) by
officers who then failed to write misbehavior
reports. State regulations permit officers to
keeplock inmates when they write them up; a
"review officer" scrutinizes their misbehavior
reports and keeplock decisions daily pending
the formal disciplinary hearing. See Gittens v.
LeFevre, 891 F.2d 38 (2d Cir.1989). The court in
Scottgranted summary judgment for the
plaintiff, noting that the officers' failure to
write misbehavior reports was a factor in the
due process violation, since the filing of the
report is what triggers all the other procedural
protections. Thus, the responsibilities placed
on low-level staff by the state regulations
ultimately form the basis for personal liability
for the due process violation.
Prisoners' right to witnesses in disciplinary
hearings has been severely limited in two
recent decisions of federal courts of appeals. In
Brown v. Frey, 889 F.2d 159 (8th Cir.1989), the
court held that prison officials could refuse to
call an officer as a witness "because to do so
would undermine prison authority by having
one guard testify against another guard" and
could refuse to call another prison official
"because he refused to offer any testimony
helpful to Brown's case and was therefore
irrelevant." Id. at 168.
We think this holding is incompatible with
fundamental fairness and with the entire
purpose of due process protections, which is to
ensure the factual correctness of the hearing
officer's decision. Cases in which staff
witnesses disagree are precisely those in which
there is the greatest likelihood of inaccurate,
false or vindictive accusations by officers, and
therefore the greatest need for a thorough
inquiry into the facts. Moreover, staff
witnesses are of crucial significance in such
cases, because inmate witnesses are almost
never believed when they contradict staff
accusations without non-inmate corroboration. As the Supreme Court has acknowledged,
when credibilitt is at issue between inmates
and staff, hearing officers "are under obvious
pressure to resolve a disciplinary dispute in
favor of the institution and their fellow
employee." Cleavinger v. Saxner, 474 U.S. 193,
204 (1985).
The notion that prison authority is
"undermined" by effective inquiry into the
truthfulness of staff members' accusations
reduces due process to a nullity. As one court
put it, in striking down a rule that effectively
prohibited the calling of staff witnesses, "If
there is preclusion of an entire class of
witnesses...the right is dissipated in a cloud of
verbiage." Dalton v. Hutto, 713 F.2d 75, 76 (4th
Cir.1983).
The right to call witnesses was impaired in
a different way in Francis v. Coughlin, 891 F.2d
43 (2d Cir.1989), in which the court held that
THE NATIONAL PRISON PROJEG JOURNAL

calling the prisoner's own witnesses out of his
or her presence does not deny due process. The
court relied on one of its own prior decisions,
Bolden v. Alston, which in turn relied on the
Supreme Court's language in Baxter v.
Palmigiano concerning issues of confrontation and cross-examination. In both Bolden~'
and Francis, the court simply assumed withQm
discussion that the same rules govern the .;'
calling of the prisoner's witness and the righf
of confrontation of adverse witnesses. In SO'
holding, it created a conflict between fe4~1
courts of appeals, see Bartholomew v. Wa1;Wn,
665 F.2d 915, 917-18 (9th Cir. 1982), and ;
effectively overruled well-considered district
court precedent.
In our view, both Brown v. Frey and Francis
v. Coughlin illustrate a growing tendency
toward perfunctory and one-sided analysis in
prison due process cases. Under Mathews v.
Eldridge, 424 u.s. 319, 335 (1976), all procedural
due process questions require balancing the
individual's interest, the likelihood that
existing procedures will yield erroneous
decisions and that other safeguards will help
avoid them, and the governmental interest in
avoiding additional safeguards. Decisions like
Brown and Francis contain little or no
discussion of the practical reality of prison
disciplinary proceedings: the overwhelming
tendency toward institutional bias of prison
staff against inmates. As the Supreme Court
observed, "It is the old situational problem of
the relationship between the keeper and the
kept, a relationship that hardly is conducive to
a truely adjudicatory performance." Cleavinger
v. Saxner, 474 U.S. 193, 204 (1985). In these
circumstances, the danger of erroneous
decisions is enormous and the need for
additional safeguards great. Yet this essential
element of the Mathews v. Eldridge test is
ignored by many courts.
Amore careful approach to an important
due process question is evident in Lenea v.
Lane, 882 F.2d 1171 (7th Cir.1989), in which the
court held that polygraph results may be used
in prison disciplinary proceedings. But the
court was careful to warn that due process
may require careful limits on their use. In
Lenea, the prisoner had been convicted of
aiding an escape based in part on two
polygraph answers alleged to be deceptive. The
court held that the polygraph results were
admissible as evidence and that in general
they may serve to corroborate other evidence
or may exculpate the prisoner.
Perhaps more importantly, the Lenea
decision suggests that prison officials must
carefully consider exactly what the polygraph
results actually prove. In Lenea, the evidence
against the prisoner consisted of the polygraph
results and the facts that he knew the escapees
and had spoken with one of them on the day
of the escape. The court concluded that these
facts did not add up to "some evidence" of
guilt. Knowing an escapee and being legitimately in an area where the escape may have
occurred do not support guilt of aiding the
escape. Polygraph evidence might be relevant
to the prisoner's credibility, but it did not

excuse prison officials from coming up with
some evidence that the prisoner actually
committed the offense, and a conviction
without such evidence denied due process.

Searches-Person/State Constitutions
Vermont's constitution gives more protection to prisoners' privacy than does the Fourth
Amendment, according to the Vermont
Supreme Court. In State v. Berard, No. 87-564
Oan.19, 1990), the state court rejected the
holding of Hudson v. Palmer, 468 U.S. 517, 530
(1984), that prisoners have no legitimate
expectation of pllivacy whatsoever in their
living quarters.. ~j
Although V(rmont constitutional law
generally "import[s] the 'reasonableness'
criterion of the Fourth Amendment," the
Berard court stated that "we seek to give
effect to the design of Article Eleven and
decline to follow parallel federal law, such as
Hudson v. Palmer, which tends to derogate the
central role of the judiciary in [state search
and seizure] jUrisprudence." Slip op. at 3, 5
(citation omitted). The court agreed that
prison life presents "special needs" that make a
warrant and probable cause requirement
impracticable, but it set conditions for random
searches: "(1) the establishment of clear,
objective guidelines by a high-level administrative official; (2) the requirement that those
gUidelines be followed by implementing
.
officials; and (3) no systematic singling out of
inmates in the absence of probable cause or
articulable suspicion." Slip op. at 9.

Other Cases
Worth Noting
u.S. COURT OF APPEALS
Medical Care/Mental Health Carel
Women/Qualified Immunity
Langley v. Coughlin, 888 F.2d 252 (2d Cir.
1989). In the Second Circuit, "the standards
concerning deliberate indifference to medical
needs and toleration of inhumane conditions
have been delineated to a significant degree"
(citing LaReau and Todaro), and the plaintiffs' allegations of widespread violations of
these standards are not subject to qualified
immunity as a matter of law. Even if defendants were immune as to some aspects of the
challenged conduct, "we conclude that the
allegations are so interrelated that precise
determination of the extent to which the
immunity defense is available must await factfinding."

Procedural Due Process-Disciplinary
Proceedings/Procedural Due ProcessWork Assignments/Grievances and
Complaints about Prison/
Injunctive Relief-Preliminary/Class
Actions-Certification of Classes/
Standing/Appeal
Newsom v. Norris, 888 F.2d 371 (6th Cir.
1989). Inmate "adVisors," who assisted other

SUMMER 1990 11

...

inmates in disciplinary proceedings, were
appointed for six-month terms, with reappointment at the discretion of prison officials.
Several of them were not reappointed and
alleged that this was because of their
complaints about the performance of the
Chairman of the Disciplinary Board.
The district court properly granted the
advisors a preliminary injunction reinstating
them. At 375: "It is well recognized that it is
constitutionally impermissible to terminate
even a unilateral expectation of a property
interest in a manner which violates rights of
expression protected by the First Amendment."
The district judge's credibility judgments (i.e.,
believing the prisoners) are entitled to
deference. Even minimal infringements upon
First Amendment rights constitute irreparable
harm.
The district court should not sua sponte
have converted the proceeding into a class
action and directed defendants to draft and
submit plans for training of the Disciplinary
Board and future inmate advisors. Whether to
seek class certification is up to the plaintiffs
and not to the court. The training relief
applied to new inmate advisers and the
present named plaintiffs lacked standing to
assert their rights.
The order to submit a plan, while not itself
appealable, could be considered in connection
with the other injunctive relief, which was
appealable.

Procedural Due Process-Disciplinary
Proceedings! Searches-Urinalysis/
Class Actions-Effect ofJudgments
and Pending Litigation/Attorneys'
Fees and Costs
Higgs v. Bland, 888 F.2d 443 (6th Cir.1989).
The EMIT urinalysis test may constitute "some
evidence" to support a disciplinary conviction
(apparently without any form of confirmation, although the opinion is not completely
clear).
Statements in an opinion denying relief that
it would be "helpful" to produce the original
test results at hearings and that defendants are
"caution[ed]" to maintain the integrity of the
urine samples did not alter the parties' legal
relationship and could not support an award
of attorneys' fees.lIowever, under a consent
judgment providing for compensation for all
work done except for matters that are
"frivolous and totally ungrounded," defendants were liable for fees.

Attorneys' Fees and Costs
Friedrich v. City of Chicago, 888 F.2d 511 (7th
Cir.1989). Expert witness fees are reimbursable under 42 U.S.C. 1988. The court notes a
division among circuits on the point.

Procedural Due Process-Visiting
Taylor v. Armontrout, 888 F.2d 555 (8th Cir.
1989). The plaintiffs son rode his motorcycle
from Florida to Missouri to visit him and was
refused for no reason that is explained in the
opinion.
Aliberty interest was created by a Missouri
12 SUMMER 1990

prison regulation that provided, "Visiting lists
shall be approved by the institution head or
designate in accordance with the individual
inmate need and personal choice. Those
persons whose names appear on the inmate's
visiting list shall be allowed to visit." (557;
emphasis supplied) This rule is different from
that in Kentucky Dept of Corrections v.
Thompson, which enumerated the circumstances under which visits "may" be denied.

Class Actions-Certification of
, ' //
Classes/Modification ofJudgments/1 11
Appeal/Attorneys' Fees and Costs ,.
Jeff D. v. Andrus, 888 F.2d 617 (9th Cir.1989).
After the entry of a consent judgment, the
district court issued a "clarification order"
excluding certain class members from the
benefits of the judgment.
The clarification order was not a modification of the settlement reviewed for abuse of
discretion. At 622: "...[C]ourts are not permitted
to modify settlement terms or in any manner
to rewrite agreements reached by the parties....
[The court] may only approve or disapprove
the proposal." Rather, the order is a
"reinterpret[ation]" of the settlement's terms,
subject to de novo review. The settlement
should be interpreted like a contract and its
terms viewed as a whole. The settlement
agreement on its face contemplated that most
of the disputed class members have its benefits
and the district court was wrong to exclude
them.
Post-judgment compliance monitoring is
compensable under 1988.

Modification ofJudgments
Adams v. Merrill Lynch Pierce Fenner &
Smith, 888 F.2d 696 (lOth Cir.1989). "In this
circuit, a change in relevant case law by the
United States Supreme Court warrants relief
under Fed.R.Civ.P. 60(b)(6)."

Medical Care-StaffingQualifications of Personnel/Medical
Care-Standards of LiabilitySerious Medical Needs, Deliberate
Indifference/Municipalities/Damages
Mandel v. Doe, 888 F.2d 783 (11th Cir.1989).
The plaintiff fell off a truck and broke his hip.
The only medical care at his "road prison" was
provided by a physician's assistant. For over
two months he did not receive an X-ray and
was given (after considerable delay) paIliative
treatment for "bone inflammation" and
"muscle inflammation." The physician's
assistant claimed to be a doctor and dismissed
the plaintiff's parent's complaints about his
treatment as "interference," and their
complaints to the chairman of the county
Board of Commissioners were fruitless. The
plaintiff eventually required a complete hip
replacement. Ajury awarded $500,000 in
damages against the county after all the
individual defendants were dismissed by
stipulation.
The plaintiff's medical need was serious, as
shown by his pain and by his visible disability.
The PA's conduct amounted to deliberate

indifference. "When the need for treatment is
obvious, medical care which is so cursory as to
amount to no treatment at all may amount to
deliberate indifference." (789) The plaintiff
also offered "expert evidence that the
treatment afforded him failed to meet
, appropriate professional standards." (790)
£:

, In Forma Pauperis
In re Epps, 888 F.2d 964 (2d Cir.1989).
Mandamus was an appropriate remedy by
which a pro se litigant could test the requirement that he pay a partial filing fee.
At 967: "All circUjts that have considered
the issue have uphcld the authority of district
"
courts to requireltrisoners
to pay partial filing
fees." It is appropriate to fashion special
partial fee requirements for prisoners and no
one else because most of the necessities of
prisoners' lives are provided by the incarcerating jurisdiction.
Courts may require prisoners to supply
available information concerning prior
lawsuits concerning their incarceration.
Prisoners should not be barred from court
because of faulty memory. It is sufficient if
they provide their "best good-faith recollection" of the prior suits.

Modification ofJudgments/
Crowding/Classification/Release of
Prisoners
Heath v. DeCourcy, 888 F.2d 1105 (6th Cir.
1989). Aconsent decree forbade double ceIling,
then was modified to permit limited double
ceIling of nonviolent sentenced
misdemeanants and to requirl! classification.
The district judge then granted a further
modification to permit male detainees and
felons to be double celled but refused to relax
the violence criteria or permit double ceIling
of women.
At 1109: "'We agree...that consent decrees
which regulate institutional conduct are
fundamentally different from consent decrees
between private parties.... They affect more
than the rights of the immediate litigants.
[They] impact on the public's right to the
sound and efficient operation of its institutions. Broader judicial discretion to modify the
parties' agreement is required so that the
agreed upon solution...may be fine-tuned to
accomplish its goal." At 1110: "To modify
[institutional reform] consent decrees, the
court need only identify a defect or deficiency
in its original decree which impedes achieving
its goal, either because experience has proven
it less effective, disadvantageous, or because
circumstances and conditions have changed
which warrant fine-tuning the decree. A
modification will be upheld if it furthers the
original purpose of the decree in a more
efficient way, without upsetting the basic
agreement between the parties."
The modification is upheld. At 1110:
"Because the class of those eligible for doubleceIling was unnecessarily restrictive, inmates
were being released in order to stay within the
population caps even though there were many
cells available which could accommodate two
THE NATIONAL PRISON PROJEG JOURNAL

inmates. The District Court reasonably
concluded thai the modification of the
consent decree would further the goal of the
original order and would not disrupt the
essence of the parties' agreement.

Administrative Segregation-Death
Row/Procedural Due ProcessDisciplinary Proceedings
Solomon v. Zant, 888 F.2d 1579 (11th Cir.
1989). The denial to a death row inmate of an
attorney visit because of his non-compliance
with a "no beard" rule did not violate the
Constitution even though other inmates had
been permitted to have legal visits without
shaving and disciplinary committees could not
deny legal visits as a form of punishment. The
rule, which stated that death row inmates
could not leave their cells without shaving,
was justified by security concerns. Enforcement of a valid security regulation does not
constitute punishment implicating procedural
due process rights.

Procedural Due Process-Disciplinary
Proceedings/Urinalysis
Thompson V. Owens, 889 F.2d 500 (3d Cir.
1989). Evidence of chain of custody need not
be submitted in order for a urinalysis result to
constitute "some evidence" to support a
disciplinary conviction.

Clothing/Emergency/Use of Force/
Damages
Campbell V. Grammer, 889 F.2d 797 (8th Cir.
1989). After a search during a lockdown in an
administrative and disciplinary segregation
unit, the prisoners were left without jumpsuits
for about a week, contrary to the warden's
orders. The deprivation of clothing did not
violate the Eighth Amendment because it was
not "obdurate or wanton" but "more readily
ascribed to misunderstanding, inexperience,
oversight, inadvertence, and fecklessness" of
the newly appointed supervisor. (802)
The spraying of three inmates with a highpowered fire hose violated the Eighth
Amendment. The district court had found that
the sprayings were intentional and not
accidental and there was "absolutely no
justification" for them. At 802: "Although the
injuries were nO't especially severe, they were
sufficient to support the district court's
finding of an eighth amendment violation."
Damages of $750 were awarded for several
months' back pain, $100 for temporary blurred
vision, and $50 for a day's pain in ribs and
thighs.

Protection from Inmate Assault/
Pre-Trial Detainees/Qualified
Immunity/Legislative Immunity/
Crowding/Class Actions-Effect of
Judgments and Pending Litigation/
Personal Involvement and
Supervisory Liability
Ryan v. Burlington County, NJ., 889 F.2d
1286 (3d Cir.1989). The plaintiff, who had
been arrested for a traffic violation, was
rendered quadriplegic in an inmate assault by
THE NATIONAL PRISON PROJECT JOURNAL

a cellmate with a history of violence. The jail
population was not properly classified because
of overcrowding.
The members of the county Board of
Freeholders, which had assumed control of the
jail from the Sheriff to effectuate a class ,
action settlement agreement, were not entittfd
to absolute legislative immunity because thei~
actions, or lack of them, in managing the jaq,
were not legislative in nature. They did ~~!' .
follow the state law procedures for locat'>~>
legislative actions and the challenged aetfims
did not involve ordinances or legislation 6r the
"line-drawing" activity that is characteristic of
legislation.
The Freeholders were not entitled to
qualified immunity. Detainees' right to be free
from overcrowded conditions was established
by § 1983. Nor did a backup of state inmates
excuse them from liability where they knew
the jail was overcrowded and there was a lack
of supervision. The right to a classification
system was also established by § 1983 and
there is a question of fact whether it was
possible to implement one.
The right to be housed in a "reasonably safe
prison environment" was clearly established
by § 1983 and testimony by the warden that he
repeatedly requested additional security staff
from the Freeholders and did not get them
presented a question of fact whether the
Freeholders could reasonably have believed
their actions lawful.
At 1294: "The most disturbing aspect of this
tragic case is that the Freeholders sat idly by in
the face of a two year violation of a consent
decree and apparently did absolutely nothing."
(Emphasis in original)

Work-Assignments/ReligionPractices
Franklin v. Lockhart, 890 F.2d 96 (8th Cir.
1989). An allegation that assignment to a "hoe
squad" was per se cruel and unusual punishment was frivolous. An allegation that the
work was beyond the plaintiff's physical
capacity stated an Eighth Amendment claim.
An allegation that he was required to handle
manure and dead animals in violation of his
Muslim beliefs stated a First Amendment
claim.

Attorneys' Fees and Costs
Clark v. Township ofFalls, 890 F.2d 625 (3d
Cir.1989). The plaintiff's jury verdict was
reversed on appeal, but he might still be a
prevailing party based on a post-verdict
settlement of his injunctive claim. The
Supreme Court's recent decision in Texas State
Teachers V. Garland Independent School
Districtdoes not "eviscerat[e]" the pre-existing
"catalyst" theory. The district court's inquiry
on remand "entails, but·is not limited to, a
consideration of the binding nature of the
township's agreement." (628)

Medication/Medical Care-Standards
of Liability-Serious Medical Needs,
Deliberate Indifference/Medical
Care-Denial of Ordered Care, Access

to Outside Services
Ellis V. Butler, 890 F.2d 1001 (8th Cir. 1989).
Negligence or disagreement with the course of
medical treatment do not state constitutional
claims.
Apainful swollen knee is treated as a
serious medical need, although it is a "close
question," because it is difficult to assess its
seriousness on the basis of the pleadings alone.
The district court engaged in improper
speculation in labelling a nurse's failure to
deliver pain medication as mere negligence
and not deliber.j!te indifference. An allegation
that a doctor caJicelled an appointment made
by another db!l£Or with a knee specialist might
constitute deliberate indifference. An
allegation that a doctor and a nurse refused to
see the plaintiff for any reason except an
emergency might also constitute deliberate
indifference.

Judicial Disengagement
Dowell v. Board ofEducation ofOklahoma
City Public Schools, 890 F.2d 1483 (10th Cir. ,
1989).
The district court dissolved a 17-year-old
injunction in this 28-year-old school desegregation case. Its action is reviewed under the
SWift"grievous wrong/attenuated to a
shadow" standard, "from which this circuit
has not wavered." (1489-90). At 1490-91:
When the reliefhas beenfashioned and the
decree entered, "an injunction takes on a
life ofits own and becomes an edict quite
independent ofthe law it is meant to
effectuate. » [Law review citation omitted}
For this reason, the court'sjurisdiction
extends beyond the termination Of the
wrongdoing...because an injunction seeks
to stabilize a factual setting with a judicial
ordering and maintain that condition
which the order sought to create. The
condition that eventuates as a function of
the injunction cannot alone become the
basisfor altering the decree absent the
Swift showing.... To do otherwise is to return
the beneficiary Of injunctive relief to the
proverbialfirst square. It isfor this reason
that SWift remains viable.

Use of Force/Fire Safety/Emergency/
Hygiene/Cleaning of Cells and
Common Areas
Johnson v. Pelker, 891 F.2d 136 (7th Cir.
1989). Allegations that one officer threw an
unidentified liquid on the plaintiff while
trying to throw it elsewhere and a second
officer threw water on him trying to put out a
fire in the adjoining cell did not state
constitutional claims because the first was not
"deliberate" and the second was justified by an
emergency.
The failure to provide dry clothing to the
plaintiff was a "temporary inconvenience"
that did not violate the Constitution.
An allegation that the plaintiff was placed
in a cell with feces smeared on the wall and
that for three days the water was not turned
on and his requests for cleaning supplies were
ignored stated an Eighth Amendment claim
SUMMER 1990 13

and "warrant an expanded response."

Procedural Due Process-Temporary
Release
Merritt v. Broglin, 891 F.2d 169 (7th Cir.
1989). Denial of the plaintiff's request to
attend his stepfather's funeral did not deny
due process. The state statute and directives
provide some "substantive predicates" for the
grant of temporary leave but not "mandatory
language"; they provide that leave may be
granted under specified circumstances.
The court reiterates its previously stated
view that only statutes and" binding
regulations" (i.e., formally approved and
published ones) can establish a liberty interest
and that prison regulations standing alone
cannot do so. It appears to be in conflict with
several other circuits on this point. See Clark v.
Brewer, 776 F.2d 226, 232 (8th Cir. 1985)
(employees' manuaI); Baumann v. Arizona
Department ofCorrections, 754 F.2d 841, 844-45
(9th Cir. 1985); Lucas v. Hodges, 730 F.2d 1493,
1501-05 (D.C.Cir.1984), vacated as moot, 738
F.2d 1392 (D.C.Cir. 1984).

Medical Care-Standards of LiabilityDeliberate Indifference
Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989).
Aprison doctor at one point advised the
plaintiff that surgery was necessary for his
recurring, chronic perirectal abscess. The
failure to provide this surgery, which was not
recommended by subsequent practitioners, at
most constituted a difference of medical
opinion regarding his treatment. In instances
where he got a lot of medical attention, there
was no deliberate indifference.

Suicide Prevention/Mental Health
Care/Psychotropic Medication
Qualified Immunity/Personal
Involvement and Supervisory
Liability/Summary Judgment
Greason v. Kemp, 891 F.2d 829 (11th Cir.
1990). The decedent committed suicide after
his anti-depressant medication was abruptly
discontinued by the same doctor who a year
earlier did the same thing to another inmate
who then blinded and castrated himself.
Waldrop v. Evans, 871 F.2d 1030 (lIth Cir.1989).
The right to psychiatric care in prison was
established by 1985. The court rejects the
argument that there must have been a
precedent holding that "discontinuing
psychotropic drugs under circumstances
materially similar to these amounted to
deliberate indifference" because this would
"add an unwarranted degree of rigidity to the
law of qualified immunity." (N. 3)
The psychiatrist who stopped the medication based on a single interview of a few
minutes without reviewing his clinical file or
conducting a mental status examination could
be found deliberately indifferent. The court
reiterates its view that psychiatric care that is
"grossly inadequate" by professional standards
is actionable and expert opinion to that effect
is sufficient to defeat summary judgment.
The clinical director of the prison could
14 SUMMER 1990

"easily" be found deliberately indifferent
based on expert evidence that the psychiatric
staff was "clearly inadequate" and that he
failed to act on his subordinates' complaints to
this effect. (837) Liability could also be based
on his knowledge of the decedent's history and
the earlier medication incident of Waldrop v. .§,
Evans..jC,
The director of mental health for the state .~~
prison system could be found deliberately c{:"
indifferent because he was "aware of," but did
nothing to remedy, conditions that could "l~
to grossly inadequate mental health care," e.g.,
inadequate recreation time, lack of mental
health treatment plans, lack of policies and
procedures for suicide prevention, and
inadequate psychiatric staff.
The prison warden could also be found
deliberately indifferent because he was
"responsible for ensuring that all
services...were properly provided" and he knew
or should have known about the inadequacy
of psychiatric staffing.

injury or worsen the situation. (They did tell
the assailant to stop. The second time they told
him, he did.) Defendants are entitled to
qualified immunity. The court invokes
qualified immunity even though it has
actually decided the merits because this is an
interlocutory appeal and qualified immunity is
the jurisdictional prerequisite.
Aprison department policy stating that
prison officials must take immediate action to
stop inmates from harming other inmates does
not establish a constitutional right.

Class Actions-~ettlement of Actions
Foe v. Cuomo,&tj2 F.2d 196 (2d Cir.1989). A
settlement that was not as beneficial to the
plaintiff class as that in a similar case in
another district was properly approved by the
district court; "the ultimate question is
whether this settlement was reasonable under
the circumstances...." (198)

DISTRICT COURTS
Handicapped/Municipalities/
Personal Involvement and
Supervisory Liability/Color of Law/
Pre-Trial Detainees Pendent Claims/
State Law in Federal Courts/Damages
Leach v. Shelby County Sheriff, 891 F.2d 1241
(6th Cir.1989). 'the paraplegic plaintiff was
left for ten days on a steel cot, initially
without a hospital mattress, was not bathed
for several days, lay in his own urine because
of inadequate catheter supplies, and was given
inadequate aid for his bowel training needs,
resulting in sores on his ankles and buttocks.
Other inmates had been similarly mistreated.
The district court properly found deliberate
indifference to the plaintiff's serious medical
needs on the part of the Sheriff in his official
capacity. Evidence that the Sheriff "knew or
should have known" of the deprivations but
failed to correct the situation established
deliberate indifference.
An official capacity suit is the same as a suit
against the governmental entity. It is a "wise
course" to name the entity directly to make
sure that it has notice and an opportunity to
respond.
Liability is supported by state statutes
giving the Sheriff the "custody and charge" of
the jail, requiring him to provide adequate
bedding, cleanliness and showers.
Defendants could not escape municipal
liability (though they might have escaped
personal liability) based on a state statute
permitting them to contract medical care to an
outside provider.
The district court awarded $10,000 in
damages.

Protection from Inmate Assault/
Qualified Immunity/Pendent Claims/
State Law in Federal Courts
Arnold v.]ones, 891 F.2d 1370 (8th Cir.1989).
The plaintiff was beaten with a metal pipe by
another inmate. Unarmed prison guards had
no constitutional duty to intervene physically
in a prison fight that might cause them serious

Procedural Due Process-Disciplinary
Proceedings/Damages
Patterson v. Coughlin, 722 F.Supp. 9
(W.D.N.Y. 1989). Aprisoner wrongfully
confined in punitive segregation for 53 days is
awarded $100 a day in damages without an
.
evidentiary hearing. (Liability had been
determined separately.) Visits to the Attica
Special Housing Unit and other litigation such
as Eng v. Smith have made the court "all too
familiar" with the conditions, which include
humiliating strip searches, 23-hour lockup in a
small space, limited exercise and interaction,
and "[hjostility, oppression and a feeling of
isolation." (11) Punitive damages are denied
because the defendants made some efforts to
comply with theJaw.

Use of Force/Municipalities
Mosier v. Robinson, 722 F.Supp. 555 (W.D.Ark.
1989). Amunicipality could be held liable for a
beating administered by a sheriff who
repeatedly worked while drunk where there
was evidence that various county officials
were aware of his habits and did nothing.

Rehabilitation/Equal Protection
Russell v. Eaves, 722 F.Supp. 558 (E.D.Mo.
1989). The requirement that the plaintiff
complete the Missouri Sexual Offender
Program to be eligible for parole did not
violate his rights. He had no liberty interest in
obtaining parole. There was no equal protection violation because there is no indication
that sex offenders and other prisoners are
similarly situated. At 560: "Treating prisoners
differently based upon the nature of their
crimes does not violate the equal protection
clause." The program is not an expostfacto
law because it is not penal in nature and does
not affect the length of his sentence. Nor does
it violate the Fifth Amendment by requiring
participants to "accept responsibility" for their
crimes.
THE NATIONAL PRISON PROJECT JOURNAL

Attorneys' Fees and Costs
MacLaird v. Werger, 723 F.Supp. 617 (D.Wyo.
1989). The plaintiffs' attorney filed a contempt
motion for violation of a consent judgment
governing jail conditions. The defendants
acknowledged that "genuine problems" existed
and listed the remedial actions that they had
taken. The plaintiffs voluntarily dismissed the
motion because its goal had been achieved.
Plaintiffs were entitled to attorneys' fees.
Post-judgment monitoring of a consent decree
is compensable. Moreover, plaintiffs were
prevailing parties because it is "clear" that
their contempt motion was a "substantial
factor" in obtaining action and the action
taken-compliance with the consent judgment-was legally required.
Procedural Due Process-Disciplinary
Proceedings/ Searches-Urinalysis/
Qualified Immunity
Rucker v.johnson, 724 F.Supp. 568 (N.D.Ill.
1989). An EMIT test with a confirming TLC test
is sufficiently reliable to entitle prison
officials at least to qualified immunity, if not
to judgment on the merits of the claim, for
relying on it to support disciplinary sanctions.
The failure to provide the prisoner with a
copy of the EMIT report did not deny due
process because he was told of the substance of
the report and it was not "material" in the
sense that there was no reasonable probability
that turning it over would have changed the
outcome of the hearing. (The latter argument
is how the court gets around a prior Seventh
Circuit holding that Brady v. Maryland applies
in prison disciplinary hearings.)
Damages/Evidentiary Questions/
Suicide Prevention/AIDS
Bird v. Figel, 725 F.Supp. 406 (N.D.Ind.1989).
After the plaintiff won a damage judgment
against various jail guards, he "became the
object of an inordinate amount of police
attention" and was jailed; he made statements
that the defendants thought admitted perjury
at the trial. The court does not buy this
interpretation and adds that under the
circumstances, the plaintiff would probably
have said anything to get out of jail but that
doesn't prove 1J.e lied under oath.
Ajury could properly find that a "suicide
watch" policy was unreasonable where the
plaintiff was denied a change of clothing,
mattress and bedding, personal hygiene
materials (soap, towel, wash cloths, toothbrush, toothpaste, shaving items, toilet paper),
commissary, visiting, papers, pencils, postage,
correspondence, all reading material, telephone use and drinking water. (The plaintiff
had AIDS; the guards said they did not have
disinfectant to clean the telephone after he
used it, and he could drink out of the toiletthe health hazard didn't matter since he
would die anyway. They also discussed his
medical condition publicly, ridiculed him for
being gay, etc.)
The plaintiff was awarded $600 and $200 in
compensatory damages for periods under these
conditions (the latter 13 days long) and $1000
THE NATIONAL PRISON PROJEG JOURNAL

in punitive damages against two guards for the
first period. Punitive damages need only be
proved by a preponderance of the evidence
and not by clear and convincing evidence
(state law to this effect is rejected). An act
"oppressively" done is sufficient to support
punitive damages.

State Officials and Agencies/Equal
Protection
Santiago v. New York State Departmen,t:pf
Correctional Services, 725 F.Supp. 780 (s.DiN.Y.
1989) (Patterson,]). An action fordamag~
may be brought directly under the Fourteenth
Amendment's Equal Protection Clause, without
benefit of § 1983, against a state agency,
because Congress intended Section 1of the
Fourteenth Amendment to be a direct
limitation on the states and to be enforceable
despite the doctrine of sovereign immunity
embodied in the Eleventh Amendment.
Now this is serious business. Section 1of the
Fourteenth Amendment also contains the Due
Process Clause and there is no principled basis
in this decision for distingUishing between the
two clauses. The substantive provisions of the
Bill of Rights are applicable to the states via
the Due Process Clause according to the
incorporation doctrine. Thus,Judge Patterson
has just abolished the Eleventh Amendment
defense for all constitutional damage claims
against the state. Stay tuned for appellate
reversal.
Access to Courts-Law Libraries and
Law Books
Kness v. Sondal/e, 725 F.Supp.1006 (E.D.Wis.
1989). A20-day denial to a segregated inmate
of the opportunity to perform legal research
did not state a constitutional claim. When the
delay is so short, the plaintiff must show
prejudice, and the plaintiff did not allege that
he had missed any court dates, had a suit
dismissed, or suffered any other detrimental
effect in any legal proceeding. The court
ignores the plaintiff's argument that he
needed law library access to obtain release
from segregation.
Attorneys' Fees
Wilder v. Bernstein, 725 F.Supp. 1324 (S.D.N.Y.
1989). Intervenors can be prevailing parties
under § 1988 even if they did not assert their
own civil rights.
The requirement of contemporaneous time
records is satisfied by verbatim transcripts of
diary entries without production of the actual
diaries.
Fees are awarded up to $250 an hour for
attorneys in practice for over 30 years.
Conferences among counsel and between
parties need not all be compensated by the
defendants, and the participation of both lead
counsel at the same time could be discounted
as duplicative. The court reduces the amount
of the request by 20% for these reasons.
Religion-Services Within Institution
Matiyn v. Commissioner Department of
Corrections, 726 F.Supp. 42 (W.D.N.Y.1989). The

plaintiff, a Sunni Muslim, was not denied his
free exercise rights by the lack of services
separate from Shia Muslims. The joint services
were held in the Sunni manner by a Sunni
chaplain. At 44: "Creation of a separate Sunni
community would have imposed an administrative burden disproportionate to the
imperfections of the existing situation as
determined by plaintiff."

Pre-Trial Detainees/Crowding/
Recreation and Exercise/Contempt
Bail Projects/Monitoring and
Reporting .-~
Essex CoutUjJail Inmates v. Amato, 726
F.Supp. 539 (D:N.].1989). The court imposes
fines of $100 a day per inmate in excess of
population limits in a prior crowding consent
judgment and $20 a day per inmate affected by
noncompliance with a requirement of one
hour daily exercise and the provision of
exercise equipment. The former sanctions had
been agreed to in settlement of a previous
enforcement motion and the latter are newly
imposed. The total amount is almost $2 million
for crowding and $1.5 million for the recreation violations.
The plaintiffs' motion was for contempt but
the court does not explicitly rule on contempt,
citing instead its power to enforce the
sanctions agreed to and to enforce orders
providing for constitutional jail conditions.
"[G]ood faith verbal efforts" are not a
defense, nor is the creation of a bail fund with
the last set of sanction monies. Nor can
defendants claim impossibility, since compliance was not physically impossible and
defendants had consented to a limited
definition of "emergency" that was not met.
The court notes that defendants "have not yet
spent a single dime" to alleviate overcrowding
and have only proposed a new jail four or five
years in the future.
Attorneys' Fees and Costs
Dunn v. The Florida Bar, 726 F.Supp. 1261
(M.D.Fla. 1988). The plaintiffs were not
prevailing parties because they did not really
have a constitutional right despite the
defendants' capitulation. But if they did, the
court would award fees on a catalyst theory
where the district judge had stated his views
that a change would be in everyone's "best
interests," these views were reported to the
defendants, and progress toward a change was
reported to the court.
Ahigh-powered Washington, D.C. attorney
is paid the highest Jacksonville, Florida rate, a
little less than the D.C. rate, without clarifying
whether he is being limited to a local rate or
the D.C. market is being considered. The out-oftown counsel was entitled to "travel time
expenses." _

John Boston is a staffattorney at the
Prisoners'Rights Projec~ Legal Aid Society
ofNew York. He regularly contributes
this column to the NPPJOURNAL.
SUMMER 1990 15

Early Prison Reforms Give Way to
Present-Day Crowding

corrections officers...wisely choose to
stand at the door, next to the riot
button.!
Tillery is just one of many prison
conditions cases bearing testimony that
lacked adequate food, clothing, and
the penitentiary, in all its evolutions, has
bedding; first-timers shared space with
failed to deliver. Court involvement in
prison operations has steadily increased
habitual criminals; there were no
programs or vocational training; and the .,1' over the years. But perhaps that's destiny.
n the summer of 1787, prisoners at
the Walnut Street Jail in Philadelphia jail keeper was not above selling liquor tR.' ,Since that first encounter between the
found new faces in their front yard:
prisoners who could afford it.
State House delegates and the Walnut
delegates working to draft the United
Through the Society's efforts, the jail
Street prisoners, the Constitution and the
States Constitution in the State House
soon had medical care and a classificaprisons have nevl'lf been entirely free of
tion system, prison industry, educational
each other.. .,,3
opposite the jail. When delegates apprograms and religious services.
.,~?
peared in the yard, prisoners extended
begging poles through the windows and
Society members persuaded the
! Tillery v. Owens, 719 F.Supp. 1275.
cried out for attention.
legislature to declare a wing of the
penitentiary a solitary confinement block Betsy Bernat is the editorial assistantfor
But the prisoners, in fact, were getting
for all convicted felons except those
the NPPJOURNAL.
attention that year from the newly
sentenced to death. Prisoners served their
formed Philadelphia Society for Alleviatentire terms in private cells because,
ing the Miseries of Public Prisons (known
reformers believed, quiet reflection was
today as the Pennsylvania Prison
the path to true repentance.
Society). The Society was concerned
This was the ideological cornerstone of
about conditions at the jail: prisoners
the Western Penitentiary in Pittsburgh
BY' RICHARD BURR
which opened in 1818, and the Eastern
Penitentiary in Philadelphia which
opened in 1829. The "Pennsylvania
system" had attracted global attention,
but not all visitors were impressed. In
1842, Charles Dickens made these
comments about the Eastern Penitentiary
.-§' in his book, American Notes.
~
...looking down these drearypassages,
~
the dull repose and quiet thatprevails
·c
is awful...[Theprisoner] is led to the
cellfrom which he never again comes
cf
forth until his whole term of imprisDeath Work: A Study of the Modern
onment has expired. He never hears of Execution Process, by Robert Johnson
The Walnut Street Jail, the first true
"correctional institution" in America,
wife or children; home orfriends.... He
(Brooks/Cole Publishing Co., Pacific
opened in Philadelphia in 1790.
Grove, CA, 1990. 170 pp. $15.95.)
is a man buried alive; to be dug out in
the slow round of
years; and in the
ne of the most profound insights
meantime dead to
of Marxist theoreticians has to do
everything but
with the process some have called
torturinganxieties
"naming the world." The theory is that
and despair.
oppressed people cannot begin to throw
Compare Dickens'
off the yoke of oppression until they
observations with the
come to understand it in critical terms1989 findings of the
until they can articulate not just the
district court in Tillery
experience of oppression, but also the
v. Owens, which chalforces which maintain it and the
lenges conditions and
vulnerability of those forces to change.
overcrowding at the
With this kind of understanding comes
Western Penitentiary:
the raising of consciousness that is a
"In the outskirts stands a great prison,
Due to the lack ofstaffing, the
precursor to liberation.
called the Eastern Penitentiary:
auditorium andgymnasium are
In his new book, Death Work, Robert
conducted on a plan peculiar to the
virtual densfor violence. Assaults,
Johnson has helped "name" an important
State of Pennsylvania. The system here
stabbings, rapes, andgangfights occur part of the world of capital punishment.
is rigid, strict, and hopeless solitary
in the auditorium. Duringpeak times, He has examined the passing of daily life
confinement. I believe it, in its effects,
several
hundred inmates may be
on death row, the short period called
to be cruel and wrong."
present
in
thesefacilities
with
only
"deathwatch"
which immediately pre--Charles Dickens
one corrections officer assigned to
cedes
execution,
and the execution itself.
Illustration provided by' the American Correctional Association from the book
The American Prison: from the beginning...A Pictorial History.
each facility at any time. The
As with any good pedagogy of the op-

I

Book Review

-t

i

O

16 SUMMER 1990

THE NATIONAL PRISON PROJEG JOURNAL

pressed, Dr. johnson has not been content
to document these experiences, though he
has documented them poignantly. One is
brought face to face with the relentless
deadening process of death row-characterized by powerlessness:
Close confinement combined with
almost constant surveillance renders
death row inmatespowerless to alter
or influence their daily existence in
any meaningful way. Their lives are
monotonous and lonely, and they are
predictably bored, tense, and depressed.... The enduring difficulty is
that on death row...everything
remains the same. It's continuously
having the same walls, the same bars,
the samepapers, the same books,'said
one condemnedprisoner. Nothing
changes. Only the outside, the light. We
have day and we have night we have
day and then we have night.'
by loneliness:
Almost to a man, condemnedprisonersfeel abandoned by the prison staff,
denied simple human compassion,
treated as ifalready dead.'
,Twelve]members ofyour community
have[already]determined thatyou
are a worthlessperson who should no
longer bepermitted to eXist:... As time
passes and theygradually exhaust
their appeals, prisoners mayfeel
further removedfrom the world of the
living... [F]ewerpeople are apt to write
or visit.... Officials discourage visits
through a variety of restrictive rules
and regulations... [And when rare
visits do occurt [tjhe empty existence
on death row may...renderprisoners
mute. They and their loved ones live in
utterly different worlds, with little or
no common ground to draw on to
sustain communication.
and by vulnerability:
Alone and defenseless when in their
cells, living atall times in harsh and
deprived conditions, convenient
objects ofcontempt condemned
prisonersfeel vulnerable to abuse
from their keepers....Their stark
vulnerability may be apparentfrom
the momentprisoners setfoot on
death row. Oneprisonerput the
matter like this:
'The biggestfear is when you walk
onto thisplace. I've seen one man
walk out there and he stood right
there and he broke down and cried.
I've seen more come in here and
live three days and startpraying.
I've seen them come in here and
cuss the day they was born because
offear. I've seen grown men come
THE NATIONAL PRISON PROJEG JOURNAL

in here andget down andpray like
kids. And cry.'
But Dr. johnson has not stopped here.
He has gone on to put the process of
death row into critical perspective. He
has explored why with each passing day,
the inhabitants of death row are made ~
feel more powerless, more lonely and 'A
isolated, and more vulnerable. The rea~n
is to facilitate their executions.'
It would be very difficult to carrY'6ut
the execution of a fully human huri\~h
being. "Such executions would exaft a
heavy psychological toll on
executioners...and perhaps on prisoners as
well, because killing and dying do not
come easily to full human beings."
Accordingly, death row gradually
dehumanizes its inhabitants. Piece by
piece, the humanity of each condemned
person is peeled away. In Dr. johnson's
view the "essence of personhood or
humanity" is comprised of three elements:
...some degree of (J) autonomy, defined
as the capaCity to influence one's
environment and hence shape one's
fate,· (2) security, defined as the
capacity to find or create stability in
one's world and hence shelter oneself
from harm; and (3) relatedness to
others, defined as the capacity to feel
for oneselfand others and hence to
have caring and constructive relationshiPs.
The conditions of life on death row
assault each one of these elements.
Autonomy is lost through the control
of every aspect of daily life-the monotony of the cell, the intrusive and
constant surveillance of correctional
officers, the interposition of authority
between the prisoner and any contact
with the outside world. Security is lost
through the gnawing sense of fear that at
any time one can be assaulted with
impunity by correctional officers, moved
anywhere, taken to the death chamber-a
sense that one is always vulnerable,
never sheltered from harm.
Relatedness to others gradually fades,
as visitors become less frequent, visits
become punctuated by more and more
silence, connections to those outside
become loosened-until, like a boat set
adrift from its moorings, the prisoner
drifts alone in a vast uncharted sea. By
the time a condemned person's life is
actually taken, his humanity has been
under assault for so long that he is in
most respects already dead-and the
killing of this less-than-human being can
be accomplished by the execution team
without befng confronted by the awful

and awesome realization that a human
being's life is one moment in one's hand,
and the next moment gone.
Dr. johnson's final contribution to
naming this aspect of the oppression of
capital punishment is to demonstrate
how it constitutes torture. It is torture
precisely because it is the infliction of
immense pain-the grinding away of a
person's humanity-that is unnecessary
to the infliction of the legally imposed
punishment. The condemned do not have
to be stripped"f their humanity to be
executed. It jq,St makes it much easier for
the executioners to carry out the
punishment if they are. But surely the
anguish of the executioner is no ground
for inflicting suffering on the condemned. Under any proscription against
torture, including the Eighth
Amendment's, this is intolerable.
In the context of today's struggle
against the death penalty, Dr. johnson's
contribution is a substantial one. When
the Supreme Court prohibited execution
of incompetent prisoners in Ford v.
Wainwrightin 1986, it recognized that
the condemned still maintained some
claim to humane treatment in the course
of carrying out their sentence. Another
case now pending in the Court, Michael
Owen Perry v. LOUisiana-involving
forcible medication solely for the
purpose of restoring enough competence
to be executed-will test the Court's
commitment to the claim of the condemned to humane treatment. If the
Court passes that test, Dr. johnson's
insights may prOVide the basis for a new
and productive litigation strategy.
But even without that, his insights
prOVide a new, powerful response to
those-particularly in Congress-who
now seek to deepen, broaden, and hasten
the use of the death penalty. At bottom,
their fervor is based upon the view that
the death penalty is the just desert of the
person upon whom it is imposed. Dr.
johnson's insight challenges them to rethink their own morality and their duty
to honor the evolution of public morality, for there can be no justificationeven under a just deserts rationale for the
death-for rubbing out the humanity of
the condemned as a prelude to killing
them. No human being deserves that, not
even, in the rhetoric of today's champions of death penalty, if the person has
"forfeited his right to live." _

Richard Burr is the director of the
Capital PunishmentProject atNAACP
Legal Defense and Educational Fund in
New York City.
SUMMER 1990 17

IDSU
New AIDS
Education
Program for
Rikers Women
fter reporting on Dr. Nicholas
Freudenberg's book, Preventing
AIDS, A Guide to Effective Education for the Prevention ofHIVInfection,
in the last issue of the NPPJOURNAL, I
went to Hunter College in New York City
to learn more about his AIDS education
project at Rikers Island, the city's jail
complex. I interviewed Dr. Freudenberg
and two associates about the innovative
program for women, and then traveled to
Rikers Island to witness it in practice.
The Rikers Island AIDS education
project, only months old, is Dr.
Freudenberg's first foray into the arena
of jails and prisons. It is only one of many
projects currently being administered by
the Center for Community Action to
Prevent AIDS, founded by Freudenberg at
Hunter College in 1987.
Dr. Freudenberg established the Center
in recognition that the best educators are
community people. It provides training,
technical assistance and consultation to
8-10 community AIDS education projects
in New York City. Staff has been hard at
work on projects in predominately
African-American communities in East
New York, and in Latino neighborhoods
in the South Bronx.
In September 1989, the Center expanded its services to Rikers Island,
which houses over 16,000 prisoners-the
largest jail in the country. Also involved
in this program are Isobel Rodriguez, a
medical student and health educator, and
Beth Richie, who has a background in
social work and has worked for years
with battered women.
Ms. Rodriguez spends one day a week at
Hunter College and four days at Rikers
visiting and holding informal education
sessions with incarcerated women there.

A

18 SUMMER 1990

te

Using a detailed questionnaire, she has
asked a cross-section of the women what . .~
their AIDS education needs are. Richie, in..<
consultation with Rodriguez, is currently
working to develop an AIDS educationl~
curriculum for use at the jail.
One of the reasons Rikers Island was
chosen, according to Freudenberg, is that
it provides an excellent opportunity to
reach a large portion of the high-risk
populations of New York City: over
100,000 men and women pass through its
gates each year.
Rodriguez and Richie want to develop
an "empowerment model." Their goal is to
enable women to educate themselves
about AIDS (and other health problems)
as well as to change the behavior that
puts them at risk for the disease. They
affirm the need for the women to take
control of their lives; both admit that
this is hard for women in prison to do.
Ms. Richie believes, from her experience
in battered women's shelters, that when
women are in crisis the opportunity
presents itself to reassess a life situation
and make changes. The crisis nature of
life in prison and in battered women's
shelters is, to some extent, similar.
Dr. Freudenberg explained.that this
program will try to "create an environment and structure discussions where
women can learn from each other." This
is certainly a more innovative approach
than the typical AIDS education program
in prison where an inmate is handed a
pamphlet, sees a video and perhaps
attends a lecture. The Center's approach
calls for the women's active involvement
through small group question-andanswer sessions.
On the journey out to Rikers Island
with Ms. Rodriguez, she explained the
inadequacies of public health AIDS
education. "When the women go in for
orientation, they're given a packet of
information but no one explains to them
what's in the packet. There is little or no
bilingual literature. In effect, many
women are left out of the AIDS education
process."
Ms. Rodriguez conducts her informal
talks in either English or Spanish,
depending on the need. She talks about
whatever issues concern the women,
including pregnancy, sexually-transmitted diseases, birth control complications

and AIDS. She has also begun to conduct
informal sessions for the correctional
officers and staff, encouraging them to
read the material she brings in for the
prisoners.
After getting tl\rough the seemingly
interminable hur,eaucratic obstacles to
entering Rikers,lsland, I was able to
attend an AIDS education session held in
the jail nursery led by an educator from
Montefiore Hospital. At Rikers Island,
many women who give birth while
incarcerated are allowed to live with
their children in the nursery for a year.
They held and played with their small
children while the Montefiore AIDS
educator discussed and demonstrated
how to use condoms. The women were
urged not to tolerate a sex partner who
says no to condoms. "Say no to men who
say no," was the recurring theme.
After lunch, Ms. Rodriguez led two AIDS.
education sessions, which came about by
request from prisoners. Despite competition from the television in the background, about 10 women attended each
session.
If all this program set out to do was to
conduct a few of these informal sessions
it would be accomplishing a lot. However,
the Center has a much bigger plan in
mind-establishing a multi-session AIDS
education program with a curriculum
that will actively involve the women
prisoners. Isobel Rodriguez, who established an easy rapport with all of the
women she spoke to, is an excellent
pioneer for this project. Backed by the
knowledge and experience of two other
hard-working educators, Nick
Freudenberg and Beth Richie, this
program has the potential for becoming
an excellent model for AIDS educators in
jails and prisons across the country. _

judy Greenspan is the AIDS information
coordinatorfor the National Prison
Project and contributes a regular
column to the NPPJOURNAL.

THE NATIONAL PRISON PROJEO JOURNAL

blications
The National Prison ;-,
Project Status Report ,l

TheJail Litigation
Status Report gives a
state-by-state listing of cases
involving jail conditions in
both federal and state courts.
The Report covers unpublished opinions, consent
d~crees and cases in progress
well as published deci'sions. The Report is the first
nationwide compilation of
litigation involving jails. 1st
Edition, published September
1985. $15 prepaid from NPP.

lists by state those presentlY'
under court order, or thos~
which have pending lit~a- "
tion either involving th¢"
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.

sources 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.

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 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.

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

Offender Rights Litigation: Historical and
Future Developments. A

book chapter by Alvin J.
'Bronstein published in the

Prisoners' Rights
Sourcebook (1980). Traces

QTY. COST

1990 AIDS in Prison
Bibliography lists re-

Bibliography of Women
in Prison Issues. A

The National Prison
Project JOURNAL, $25/yr.

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.

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THE NATIONAL PRISON PROJECT JOURNAL

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SUMMER 1990 19

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~ighlig~hts_'

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Third Circuit on June 25 and on June 29 the
court of appeals affirmed the district
.;j< court's decision which found in favor of
Nolasco v. Romer-At the request of th~.' , the plaintiffs on almost all issues and
Colorado ACLU, the Prison Project has~.
ordered an end to double-celling.
joined this challenge to conditions in ?i}
three Colorado prisons not covered bythe Thomas v. Kidd~At the request of local
earlier Ramos v. Lamm decision. Plaincounsel, we haveJiled an appearance in
this case challenging conditions and
tiffs filed a complaint in February 1990;
overcrowding in the Mecklenburg County
discovery is underway.
Jail (N.C.). Defendants have requested the
Palmigiano v. DiPrete-This case
court to stay the proceedings in order to
challenges conditions in the Rhode Island correct problems at the jail.
prison system. Acontempt hearing was
U.s. v. Michigan/Knop v.Johnsonheld in the district court on May 10, 11
This is a statewide Michigan prison
and 14. On May 22, the court issued an
conditions case. Plaintiffs filed their brief
opinion arid order finding defendants in
in Knopon the cross-appeal on fees with
contempt of its previous orders and
the Sixth Circuit on January 22, 1990. On
ordered them to release prisoners to meet
April 20, the Sixth Circuit upheld the
the population cap; pay money into a bail
fund; and implement various medical and district court's August 1988 decision and
refused to dismiss the Knopclass from
environmental remedies.
the u.s. v. Michigan litigation.
Plyler v. Nelson-This is a statewide
Wilson v. Seiter-We have agreed to
conditions case in South Carolina. In
represent a prisoner of Ohio's Hocking
March 1990, defendants appealed the
Correctional Facility in seeking certiorari
district court decision denying their
from the Supreme Court in his pro se case.
motion to modify or vacate doubleThe case challenges various conditions of
celling restrictions at the state's main
confinement. The petition for writ of
women's prison. The court of appeals
granted their request for a stay. On May 7, certiorari, filed in May, argued that the
the court of appeals affirmed a favorable
Sixth Circuit applied the wrong standard
in finding in favor of corrections
district court decision awarding fees to
officials and that the standard conflicts
plaintiffs.
with the standard for Eighth Amendment
violations applied by other circuits. The
Tillery v. Owens-This case challenges
Supreme Court ordered defendants to file
conditions at the Western Penitentiary in
Pittsburgh. Argument was heard in the
a response to our petition by June 25.
agreement which was approved on June
21,1990.

he following are major developments in the Prison Project's
litigation program since February
15,1990. Further details of any of the
listed cases may be obtained by writing
the Project.

T

Henry v. DeLand-This case challenging
medical and mental health care provided
to prisoners of the Utah State Penitentiary was originally brought by the ACLU
of Utah and a Salt Lake City law firm. At
their request, we have joined as co-counsel. Acomplaint was filed on December
18, 1989; the class has been certified.
Inmates of Occoquan v. Barry-This
case challenges conditions at the District
of Columbia's Occoquan prison facilities.
Judge Green entered a final order,
requesting defendants to implement
procedures to comply with the fire safety
and environmental requirements of her
June 30, 1989 order. In addition, following
a hearing on F~bruary 21, 1990, she denied
defendants' motion to modify the
population cap.
Jackson v. Addison-On March 14, 1990,
the Prison Project filed a notice of
appearance in this ongoing challenge to
conditions of confinement in the
Milwaukee County Jail. Plaintiffs have a
pending motion for preliminary injunction on crowding, sanitation and medical
issues. Parties reached a settlement

National Prison Project
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