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A PROJEG OF THE AMERICAN CIVIL L1BERT!~§ tJNION FOUNDATION, INC.
VOL. 5, NO.4, FALL 1990 • ISSN 0748-2655
",p1

How To Work With Special Masters
y mid-1988, there were as many as
14 adult state correctional systems
or institutions with courtappointed masters or monitors. Another
four masterships were active in state
juvenile systems or institutions. While
currently accurate counts of jail cases
involving masters are unavailable,
masters are functioning in jail systems in
New York, Los Angeles, Houston and
Philadelphia, as well as in dozens of
smaller facilities and systems around the
country. Masterships are a flourishing byproduct of prisoners' rights lawsuits.
My purpose here is not to trace the
history and development of the use of
correctional masters, but to consider
briefly how masters function and how
counsel for the plaintiffs in prison and
jail cases can relate most effectively with
them. Even the briefest survey of the
field reveals that there is no model
mastership. In the two decades during
which correctional masters have
operated in the nation's prisons and jails,
the shape, size and scope of masterships
have varied greatly. Some masters were
appointed to help parties negotiate or

B

J. Michael Keating, Jr.

renegotiate remedial orders; some to
referee the collaborative efforts of partyselected experts to define a remedy;
others were appointed to review and
approve defendants' new policies and
procedures; some were named to monitor
mandated improvements in a single
facility or in a whole system; more
recently, others have been appointed to
orchestrate releases from badly
overcrowded institutions.
This variety of function is reflected in
the organization and structure of
masterships, which range from a single
part-time individual to a staff of 11
attorneys and investigators. Annual
budgets can run anywhere from several
thousand dollars to multi-millions.
Correctional masters can be former
correctional administrators or lawyers,
some of them with only limited
experience in corrections. Masterships
can be brief or interminable. Some judges
push assertively for the appointment and
involvement of masters, while others are
indifferent or downright hostile toward
them.
While all of this suggests that
generalizations are risky, at best, there is
a need to identify and articulate some
underlying principles central to the
effective functioning of any mastership.
The principles listed here are rooted in
three basic qualities characteristic of a
successful master:
1. Neutrality: In general terms,
neutrality dictates that an intervenor
shall have no vested interest or stake in
any particular outcome. Obviously, a
master appointed to ensure the
implementation of a judicially imposed
remedy has a powerful interest in
outcome; meaning that, substantively,
there is no such thing as neutrality in a
prison or jail mastership. The plaintiffs,
having either prevailed on the merits or
compelled a consent judgment from the

defendants, emerge from the contest with
a judicial acknowledgment that
conditions are intolerable, as well as a
mandate for change. Within the context
of a prisoners' rights suit, the master is
the court's agent for change.
This means that masters are seen by
both defendants and plaintiffs as
advocates for reform, and, indirectly, as
paladins for the plaintiffs' cause. This
may explain why so many masters come
from the ranks of correctional
administrators, as courts seek to correct .
the unavoidable substantive imbalance
by appointing individuals who cannot be
accused of personal bias against the
defendants. Appointed former
correctional administrators who,
typically, are relatively progressive
members of their profession quickly
become identified, as masters, with the
reform of troubled institutions or
systems, and their presumed lack of
personal bias fades among beleaguered
defendants. Distrust is further
accelerated when these professional
correctional masters turn up as plaintiffs'
expert witnesses in other, unrelated cases.
These partisan appearances undercut the
rationale for the employment of
correctional administrators as masters,

,
\

and plaintiffs' counsel should avoid
damaging the effectiveness of masters by
pressing them to make such appearances.
Given the absence of substantive
neutrality within the context of a
mastership, masters need to work
especially hard at the business of
appearing personally fair and openminded to both sides. Plaintiffs' counsel
have to be sensitive to this need; they
must avoid even unconsciously projecting
the image of being fellow conspirators in
the master's effort to "get" the
defendants. Plaintiffs' counsel must
scrupulously maintain an arm's-length
posture with the master even while
working closely to accomplish identical
goals.
The flip side of the need to avoid
compromising the master's fragile
neutrality is that plaintiffs' counsel
cannot vanish from the case after
judgment, leaving all aspects of
enforcement to the master. Let-down for
counsel after a trial on the merits or a
successful struggle for a consent decree is
natural, and, in some instances, the level
of animosity between plaintiffs'
attorneys and the defendants can become
so searing that temporary noninvolvement seems appropriate. The
success of effective masters, however,
derives most often from their emergence
as a rational counterweight to impatient,
demanding and aggressive plaintiffs'
counsel. The mastership is basically a
forum in which parties sort out and
accommodate conflicting needs and
interests in understanding the remedial
order and applying it fully. If the
plaintiffs' counsel disappear during this
remedial process, the master ends up
pushing the interests and needs of
prisoners and further damaging already
fragile neutrality.
2. Loyalty: In the face of this dubious
neutrality, the master must find a firm
standard to ding to. That standard is, and
must be, the remedial order itself. A
master's function is, simply, to help the
court and parties interpret, understand
and implement the remedial order-no
more, no less. The master has no writ to
develop perfect correctional policies and
systems; he or she is responsible for
generating a clear definition of the
requirements of the order and seeing that
those requirements are applied fully.
Obviously, the meaning of applicable
remedial orders is not always easy to
discern. Questions about terms, such as
"adequate medical care" and "acceptable
levels of programming," frequently spark
furious debate, but final definitions must
2 FALL 1990

be grounded in the terms and spirit of the
remedial order, not in the predelictions
of the master, the parties, the parties'
experts, or even the master's experts.
The master's institutional and personal
loyalty belongs to the court and the
judge. Judges' expectations of their
masters can vary widely. In one case
judge, unhappy with the parties'
insistence on the need for a master,
ordered his appointee's reports seale,a
upon filing and never thereafter referred
to them. Elsewhere, masters and judges
have had daily exparte colloquies··on the
status of the case. In the latter instances,
a master acts truly as the eyes and ears of
the court. The master must respect the
convictions of the judge in the case; he or
she cannot do more than the judge will
allow.
Savvy plaintiffs' counsel will keep a
finger on the pulse of the relationship
between master and judge to determine
whether it is better to work closely with
the master or to push independently and
aggressively in the courtroom. Not
surprisingly, masters tend sometimes to
exaggerate the closeness of their
relationship with the judge, even when
there is barely a relationship at all.
Therefore, plaintiffs' counsel must be
wary and seek other indicators in
addition to the master's sometimes selfserving description.
3. Empathy: To be even marginally
useful, masters need to lend an
empathetic ear to prisoners, staff,
administrators and counsel. Particularly
early in a mastership, the master can
overcome initial perceptions of bias by
listening thoughtfully and hard to
everyone involved in the case. This is
especially critical in dealing with
prisoners. 'Masters must frequently spend
many hours in the initial phase of their
involvement listening to individuals and
groups of prisoners, whether named
plaintiffs, other inmate representatives,
or randomly selected interviewees, no
matter how angry, critical, skeptical or
hostile they may be. Similarly, masters
must hear out frustrated and angry
correctional officers, support staff and
administrators. The listening itself must
be critical, as well as thoughtful and
responsive.
Truth in prisons and jail is an elusive

commodity because events must forever
be sifted through the pervasive and
corrosive distrust that exists between
keepers and kept. In troubled institutions
(and masters are appointed only in
troubled institutions), the levels of
distrust can be stratospheric, and
prisoners, staff and adminstrators have
typically stopped communicating with
each other at all.
Plaintiffs' counsel can help newly
appointed masters overcome these
barriers by i~ntifying candidly truthful
prisoners an4 ~taff, and by facilitating
communica'tf6ns with trusted and
trustworthY'clients. Prisoners' principal
contribution to compliance is
information. They know when policies
and procedures, promulgated with
fanfare, have not been implemented at
the operational level. The best way for
masters to assess the validity of claimed
reforms is to spend lots of time on the
tiers and cellblocks talking to prisoners.
Counsel must also get the word to their
plaintiff clients that masters are not
ombudsmen. Masters gather information
and determine compliance with orders;
they assess patterns of practice to
determine whether systems have
incorporated mandated reforms. No
system is perfect, people make mistakes,
and injustices occur. The master is not a
guarantor of operational perfection or

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830 FAX (202) 234-4890
The National Prison Project is a tax-exempt foundationfunded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional

facilities by using existing administrative, legislative and
judicial channels; and to develop alternatives to
incarceration.

The NPPJOURNALis available on16mm
microfilm,35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.

The reprinting of JOURNAL material is encouraged with
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be credited with the reprint, and that a copy of the reprint
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The JOURNAL is scheduled for publication quarterly by
the National Prison Proiect. Materials and suggestions
are welcome.

THE NATIONAL PRISON PROJE0 JOURNAL

full justice. He or she must focus on
systemic issues. While prisoners'
individual complaints provide valuable
information about patterns of practice,
masters cannot resolve these complaints.
Not surprisingly, prisoners want help
here and now, and plaintiffs' counsel
must try to educate their clients about
the limits to a master's ability to solve
prisoners' personal problems.
There is a rhythm and flow to a
mastership. In the aftermath of a trial or
a bitter struggle for a consent decree,
with denial running strong in the veins
of the defendants, the master becomes
the focal point for swirling controversy
that seems little changed from the
straight adversarial clash of litigation.
With the passage of time, denial ebbs and
defendants almost always come to see the
court's intervention as a potent weapon
in the hunt for resources. At that point, a
tacit and reluctant alliance among
plaintiffs, defendants and master
frequently emerges, a cooperative phase
that requires great flexibility, delicacy
and tact particularly on the part of
plaintiffs' counsel. The object of this
uneasy alliance is always the holder of
the purse-strings, and much can be
accomplished if the alliance can only
manage to wield the carrot and the stick

sitting federal district court judges,
in some sort of fragile unison. These days,
such alliances are most often torpedoed
pursuant to an appellate writ of
by overcrowding, in the face of which
mandamus bifurcating elements of state
and county relief, the attorney general's
the gains of months or years can quickly
evaporate.
representative accused the county of
The remedial phase of a major
being excessively harsh on criminals.
institutional suit requires extraordinary
This illustrates nicely both substantive
and procedural anomolies that can occur.
negotiating skills on the part of
plaintiffs' counsel. Counsel must clearly}
Throughout the remedial process,
perceive their clients' interests, and worIf , plaintiffs' counsel and the master have
to understand with equal comprehensfpn
much to gain from close collaboration.
the defendants' institutional and
'1/
The substantive agenda of both is
personal interests, as well as their! if
fundamentallYihe same, namely, full
capabilities and limits. Plaintiffs' counsel
implementatioq of relevant court orders.
must push ceaselessly for the remedy
The success oi}6ne is the success of both.
they have earned for their clients, but
The trick is to'understand the need for
also be sensitive to the political,
cooperation and to accomplish it without
economic, and social constraints within
compromising the integrity and
independence of the master, for once the
which defendants and the court must
operate.
defendants perceive that a master is in
In many ways, the remedial stage of a
league with plaintiffs' counsel, the
master's effectiveness is wounded,
prisoners' rights suit places much more
challenging demands on plaintiffs'
perhaps mortally. •
counsel than does the initial litigation.
Just as different basic skills are required,
even one's understanding of ordinary
J Michael KeatingJr. is apartner and
director ofADR servicesfor the
civil procedure can be subjected to rude
Providence, Rhode Island lawfirm Of
shock. Post-decree enforcement processes
sometimes seem to forsake the beaten
Tillinghas~ Collins & Graham. He serves
as a master to federal district courts in .
path to wander through perplexing
jail andprison cases in Georgia,
thickets of procedural irregularities. In a
Massachusetts, Rhode Island and Texas.
recent Texas hearing held before two

Adjoa Aiyetoro: Political Activist
"We're notgoing to win overnight. You have tofight every day."

rom time to time the JOURNAL
profiles a Prison Project staff
member. In this issue editor Jan
Elvin interviews Adjoa Aiyetoro, an
attorney with"the Project since 1982.
Aiyetoro was appointed associate director
for administration in 1990. In addition to
her Prison Project work, Aiyetoro is the
director of the National Conference of
Black Lawyers, and a national board
member of the National Alliance Against
Racist and Political Oppression.
NPPJ: Adjoa, how did you get
interested in becoming a lawyer?
AA: I went to law school because, as a
social worker in charge of mental health
programs in St. Louis, I was constantly
frustrated. I found that a lot of my
clients' problems stemmed from
fundamental social and economic
inequities.

F

THE NATIONAL PRISON PROJECT JOURNAL

I was always referring people to
lawyers and trying to figure out what
their rights were. As an advocate, being a
social worker was not enough.
I decided I had gone as far as I could
there, so I talked to a Black psychiatrist
[Dr. Calvin] I worked very closely with
and he and I decided that I should go to
law school.
NPPJ: What was your first job as a
'lawyer?
AA: The Department of Justice offered
me a position in their honors program,
giving me a choice of whatever division
or program I wanted to work in. I chose
the Special Litigation Section of the Civil
Rights Division because of the mental
health component. I had no interest in
prisoners' rights at that time.
NPPJ: Had you thought about it?
AA: No. My thinking all along was that

I didn't want anything to do with criminal
law. I didn't want the responsibility of
representing a criminal defendant. I
wasn't especially sympathetic to people
caught up in the criminal justice system. I
wasn't unsympathetic, I wasn't one way or
the other. My focus had always been
mental health. I didn't really see, until I
was at Justice, the real interconnection
between the rights of the mentally ill and
the rights of prisoners. Most of the cases in
the civil rights section were prison cases. I
couldn't really be in that section and not
do them so I began working on prison
cases.
NPPJ: How would you describe your
current world view and how did it
evolve?
AA: I believe there must be
fundamental economic and political
change in the United States. The problems
we see in the criminal justice system and
in the social and economic system are all
related. The reforms that we struggle
for-that I'm very active in struggling
for-are really only intermediary steps
that we must take because the pain and
pressures upon the masses of people are
FALL 1990 3

so great. It would be irresponsible as a
political activist, or revolutionary-I
view myself as a revolutionary-to take
the position that we just need to sit back
and watch the system destroy itself and
then we can build. Because people are
dying. I think we have to attempt to
make things better, even if it means
patching up a system.
NPPJ: You do believe in working
within the existing system?
AA: That's what I'm saying. I work
within the system but also outside of it. I
work within the system to the extent
that I work with the ACLU, which views
itself as part of the system. I think it's on
the fringe of the system myself, but it
views itself as part of it.
I don't think I could ever work for the
United States government again.
NPPJ: Why not?
AA: I think the government is and has
been historically a tool of repression and
oppression of people of color and the
poor. I'd almost feel like I was a traitor to
work for them at this point. My father
has always said: our purpose in life is to
serve. That is how I was raised. The only
choice I had was to decide how to serve.
NPPJ: Whom are you serving?
AA: My choice is to serve, broadly
speaking, oppressed people. I focus largely
on Black people, poor people, and people
of color. My sister says I've always been a
person who disdained a few having and
everybody else going without. How can
we take this pie and divide it so that
everybody can have a piece? Why is it
that we can't decide it is important that
everyone who is born in this country has
a decent education and a place to live
and food on their table?
I think what we need to start doing is
stop letting George Bush lie about what
he knows are the facts in this society. We
know that the Black child born in the
inner city who makes it to the top is the
exception ana not the rule.
We know the answers to George Bush
and we have to start throwing them out
there. Liberals have done a disservice by
saying, "this issue is not popular with the
people, or the people won't hear it so we
won't put our side out." We react. Look
at the Dukakis campaign-all reaction.
He didn't stand up and say, "Yes, I'm a
member of the ACLU. You're doggone
right. And this is why I'm a member."
What'd he do? He said, "Well, yes I'm a
member, but these are the issues I
disagree with."
NPPJ: Are there any particular people
who have been inspirational in your life?
AA: Dr. Calvin, the psychiatrist I
4 FAll1990

worked with as a social
worker, gave me the
confidence I needed to
believe that I could be
whatever I wanted to be. He
was a beautiful man-had the
most wonderful laugh in the
world.
My parents are probably
the most important. Even
though all of us have these
-§
issues with our parents-my cE
parents have always
8:
supported me. Even if they Z
were a little slow.
We disagree politically on a number of
things, especially my father and I. But
one of the things I find with them, even
in the disagreements-give them a
document that shows that their position
is not right and mine is right, they
change. And that's where I guess I get the
faith that I have in the people. Because I
think my parents are pretty much middle
America.
Margaret Burnham [former judge;
former director of National Conference
of Black Lawyers] has always been one of
my shining examples of the kind of
lawyer and person I would want to be.
She has used the law to push our
movement forward and has not been just
"a lawyer" who happens to be involved in
activist work.
In terms of lawyering, Lynn Walker. I
think that the job at Justice was really
the best first job I could get because
Walker was in charge of that. She is not
just you know, a kind of bourgeois Black
person that doesn't really know about the
issues. This woman, she's physically
beautiful, too-this woman...was like
another Dr. Calvin to me. She pushed me
forwar-d.
I had a good deal of respect for Maurice
Bishop before he was killed and some of
the people in his cabinet. I'm impressed
with Fidel Castro. I know that may not
be the most popular person to list. But I
think his revolutionary actions, and I've
been to Cuba twice and I've seen what
they're doing there for the people, I
respect him. And Mandela-both the
Mandelas. I wouldn't want to say the
Mandelas without saying the people of
South Africa because they are really just
symbols of the courage and persistence of
the people. One of the things we really
have to commit ourselves to in our
litigation, in our struggle for
fundamental changes, is that we're not
going to win overnight. You have to fight
every day.
Al Bronstein is another Lynn Walker

Adjoa AiyetA}o

and Dr. Cal~in to me. He has allowed me
to define myself. He has yet to tell me
what to say when I go out to a meeting,
or when I speak or represent the Project.
When I started locking my hair, he was
one of the first to tell me that he liked it.
He has yet to say, "I want you to present
yourself a certain way for the office." I
think where I am in terms of the
confidence I have in myself is because he
always believed in me. He would get mad
sometimes when I'd come in his office,
being insecure, and I'd know he was
angry because he showed it. He'd as
much as say, "all the attorneys in this
office are excellent. How dare you say
you're not an excellent attorney."
Sometimes I think his anger at my
insecurity was what pushed me out of it.
It wasn't like "Oh, Adjoa, you shouldn't
feel so bad." He was impatient with itlike I wasting his time and mine.
NPPJ: Another thing I'm interested in
is your changing your name from
Carolyn Burrow to Adjoa Aiyetoro. I
assume it has a lot of meaning to you.
AA: I decided right before I went to
law school that I was making all these
changes-I sat down with Dr. Calvin and
decided to go to law school-that's when I
changed my name. I wanted a name that
reflected the duality of who I was: an
African, but also an American.
I was telling this man I worked with at
the hospital I wanted to change my
name; I went through this whole thing.
He said, "Oh, I know your name!" And he
gave it to me. Right then. He said: Adjoa
Assantua. In hindsight, I don't think it
was really all my choice, it was like I was
directed. Valerie Simpson sings this song,
that asks God: "change my name, I will
have to fight my father and my mother,
but I'll let you change my name. I may
have to fight my friends and my
associates, but I will let you change my
name." The first name he gave me was
Adjoa, which means a female born on
Monday [the day I was born]. And
THE NATIONAL PRISON PROJEG JOURNAL

Assantua is, if you remember, the story of
how the British came and the men would
not fight to save the golden stool. The
women fought, led by Queen Assantua.
Her name means one who is eloquent and
bold. She spoke but she also fought.
I kept my middle name-my father's
name. I changed it initially to Adjoa Artis
Assantua Burrow, out of compromise
because I knew my parents would be
upset. So even though this Valerie
Simpson song says, "God, change my
name," I said, wait, God, don't change it
too fast. We got to pull these people
along.
NPPJ: Did your parents think it was
rejection of them?
AA: Yeah, it was very emotional and
painful. Being as headstrong as I am, I
just stopped answering to my given name.
I could be in the same room with you and
you could be looking dead at me and I
refused to answer.
When I married my now ex-husband, I
decided to take his last name, Aiyetoro,
not out of tradition, but because I'd
always wanted to have an African last
name. I mean, I was courageous, but I
wasn't that courageous. My parents were
very traditional. Of course you would
take your husband's last name!
NPPJ: When you go into court, how are
you, as a Black woman, treated by judges?
AA: I think that Black people and
women are treated differently by judges,
so I get both. My first experience in court
was with probably one of the best judges
for our issues, Judge Justice in Texas. I
didn't feel any discrimination or
anything from him. He was very
supportive. Called me back in his
chambers and encouraged me. His
treatment of me when I was in the
courtroom was almost protective.
Judge Johnstone in Kentucky is another
very good judge, and a very nice man. But
he is a traditional old country kind of
dude. We had.these status conferences
and he'd come in and you know, he has
this huge mouth. He's a big man, big
head, big mouth. His face sometimes
looked African, even though his skin is
white. He's got this big laugh, and he'd
come in and say, "GOOD MORNING,
GENTLEMEN!" And then we'd go and talk.
Well, after he did that a few times, I said
to him, ')udge Johnstone, why is it that
every till,le you come in, you say 'Good
morning, gentlemen,' and I'm not a
gentleman." "OH, ADJOA, HO HO HO!" His
big laugh. He stopped. "Good morning,
gentlemen and ladies." And he didn't
even do it facetiously like some people
would do when they make a joke and put
THE NATIONAL PRISON PROJECT JOURNAL

you down. And the bigness of his laugh
and his smile is how he was.
I had to give a note to a judge once
because he would speak to all of the male
attorneys by name and say only good
morning to me. At first I got upset-this
is Magistrate David Lowe in Richmondbecause my first thought was, "is it
because I'm Black and a woman?" Well,
Shawn Moore [NPP co-counsel] was therw
and he's Black. No other women on th~t~P
team, and he would always speak to 'A
Shawn by name. Then I decided, well,t
maybe he doesn't know how to
pronounce Adjoa Aiyetoro. Maybe
because I'm a woman, he could minimize
it and think it was no big deal not saying
my name. So I wrote my name out on a
piece of paper, phonetically, and before
we went into court one morning-Shawn
almost had a heart attack-I knocked on
his door and he said, "Come in." And I
went in and I said, ')udge, every morning
you say good morning and you name all
the men, but you don't name my name.
And I finally decided it's because you
probably didn't know how to pronounce
it. So I wrote it out phonetically for you."
And after that, he said it perfectly, no
problem.
I have not had any judge who I felt was
hostile to me because I was Black or a
woman. I have had conflicts, in fact even
with a liberal judge, Judge Enslen [U.S.
district court judge in Michigan].
Sometimes white liberals make the
mistake of thinking they know more
about racism than Black folk. And I
think that sometimes the conflicts I had
with Enslen were because of that. Where
he thought he knew more about racism
than I did.
NPPJ: In terms of the case?
AA: Yes. I don't think it was because I
was Black, but I think white supremacy
is a very ingrained thing. He was down
in the South, like Al [Bronstein], with the
civil rights movement, so I think he
really thought that he knew more than I.
But it's easy for white people, and
especially white liberals, to become
paternalistic-and to almost get angry
when you won't allow them to define
your issues for you.
For the most part, the judges I've been
before have been okay. They may not
have always agreed with me and I might
have thought that some were real
reactionaries-I thought Magistrate Lowe
was one of those. Although, when I was
in the hospital [recovering from a serious
accident], he sent me one of the best
cards that anybody sent me. It was racesensitive, about how Hannibal was crying

on the mountain, and how he had to go
through all of this trouble. It was so
inspiring, this man I've been calling a
reactionary took the time to find
something about a great Black in history
to send to me, saying, "Don't give up."
NPPJ: What was your first prison case?
AA: Ruiz v. Estelle in Texas in 1978. I
put on a number of prisoner witnesses;
that was my first responsibility. So I met
Bill Turner, all those folks doing
prisoners' rights work.
NPPJ: What are some interesting cases
you have work~d on?
AA: At Justi¢, a case that was real
important tome was Stewart v. Rhodes, in
which we got a preliminary injunction
on race discrimination in the housing of
prisoners. Also, the NPP Michigan case,
Knop v.johnson, where we got an order
on racial harassment, a claim we had not
formally made. My plan in putting forth
evidence of racial harassment, as the
judge called it, was to prove the claims of
discrimination in job assignment and
disciplinary segregation. The case law
said that statistics by themselves are not
sufficient, even though we had
significant disparities in the numbers of
Blacks and whites in disciplinary (Blacks
were overwhelmingly represented), or in
high status jobs where whites were
overwhelmingly represented. You have
to show more than that. So we were
using the racial slurs, and harassmentNPPJ: You have to show specific
examples?
AA: Right. What the case law says is
that for a violation of the Fourteenth
Amendment, statistical disparity by itself
is not enough. You have to show intent.
We wanted to show racial attitudes of
staff in order to support our claim that
the disparities we were presenting to the
court were indeed based on race
discrimination and not some other fluke
of conduct on the part of the prisoners or
their job skills. While the court found
that we had proved a racial harassment
claim, it found against us on our other
claims.
But the case was really important
because it established-hopefully it will
stand up in the Sixth Circuit-that there
is such a thing as racial harassment of
prisoners and that staff have to treat
prisoners in a way that doesn't racially
demean them.
The most significant case for me in my
recent legal and political career was
Baraldini v. u.s.. It was the first time we
consciously took a case, at least since I
had been practicing, around political
prisoners, that wasn't a political prisoner
FALL 1990 5

r
issue which came up as a part of the case
or that kind of thing.
What we were doing was supporting a
person's rights to have radical political
views and that fit in with my own
perspective on political views. If we don't
allow or support their right to have those
views, then mine aren't going to be
tolerated either.
NPPJ: What's most frustrating about
this kind of work?
AA: There's the frustration of being a
workaholic who doesn't know when to
say no to work. So you're always being
overwhelmed and trying to get a handle
on that-realizing that the struggles we
are engaged in are struggles that predated
my existence and will also postdate it.
The other frustration is that change
comes so slowly. I'm an action person
and I'm frustrated by the rhetoric on our
issues as compared to the actual work to
make the changes. One thing I really
believe has to be done, and we are doing
it to some extent here, is to work more on
the community level, to spend more time
doing the kinds of community forums
that the American Friends Service
Committee does, probably some ACLU
affiliates do.
For example, the ACLU affiliate in
Pennsylvania came to us back in January

of this year, and wanted our involvement
in a state-wide lawsuit after several
disturbances there. We knew that much
of the resolution of the issues of any
lawsuit would be to change criminal
justice policy, to start demanding
alternatives to incarceration and that
you look at your policy and practices
around mandatory sentences and drug>
crimes, and that you really make changes
there.
.:0'
So we decided we would get involy'rd
on two fronts, one would be the litigation
which Al Bronstein is heading up a.nd
coordinating, and the other is the
legislative and community aspect of it
that I head up and coordinate, working
with a coalition of organizations called
the Coalition for a Fair and Effective
Criminal Justice System. It's made up of
the Pennsylvania Prison Society, CURE,
the ACLU affiliate chapters, the Coalition
Against the Death Penalty, and the
National Conference of Black Lawyers.
We want to expand our discussion of
how to get criminal justice reform in
Pennsylvania: what's the best way to
effectively lobby legislators to support
positive criminal justice policies and to
oppose those policies that are only
increasing the problems we see, not only
in the prisons but in our communities? •

u.s. Punishes Political Dissidents
n 1978, United States Ambassador to
the United Nations Andrew Young
stated to the French newspaper Le
Matin that U.S. prisons held "hundreds,
maybe thousands of people I would
categorize as political
prisoners." I TIte
outcry was immediate and deafening;
Young was forced to
retract his remarks.
But he had it right
the first time: there
were then, and there
are now, political prisoners in the United
States.
Many Americans find this difficult to
believe. As chiltlren we are taught that
we live in a democracy, where the right
to express unorthodox, even unpopular,
views is zealously protected. "It's a free
country," as the saying goes. And indeed,
few would deny that in the United States

I

6

FALL 1990

today there is more latitude to dissent
from government orthodoxy than in Iran
or Albania. But the U.S. government, like
all governments, sets limits on the
expression of ideas that are unacceptable
to it. And those who exceed these limits
can expect to feel the full coercive power
of the state.
There are at least
four ways in which
the state can use its
law enforcement
power to punish
political dissidents.
The first is simply to
prosecute and imprison them under
laws which openly and explicitly
prohibit the expression of certain
forbidden ideas, such as communism or
anarchism. The second is to criminalize
and severely punish certain nonviolent
and symbolic acts because of the political
message they convey. These are typically
acts which, but for their oppositional
political content, would either be

perfectly legal, or would be considered
minor offenses, such as burning a draft
card or an American flag. Third, the state
may prosecute dissidents on ostensibly
"nonpolitical" charges in retaliation for
their political views and activities. For
instance, many civil rights workers in the
South in the 1960s were falsely charged
with various offenses in a deliberate
effort by authorities to hinder their
work. Finally, those who break the law
for political reasons may be selectively
prosecuted or'funished more harshly
than those wpp violate the same laws
from more o;tlinary motivations, such as
a desire for personal gain. In each of
these situations, persons are imprisoned
or otherwise punished at least in part
because of their political views.
Locking up those whose ideas are
perceived as threatening to the existing
distribution of wealth and power is a
long, if not proud, American tradition.
During World War I, Socialist Party
leader Eugene V. Debs made a speech in
Canton, Ohio, denouncing the war and
the military draft. He was convicted
under the Espionage Act, and sentenced
to ten years in prison. Socialists Rose
Pastor Stokes and Kate Richards O'Hare
were also convicted of obstructing the
draft; Stokes, too, received a ten-year
prison sentence.2
In 1940, Congress enacted the Smith
Act,3 aimed at criminalizing membership
in the Communist Party. Atotal of 141
persons were indicted under the Smith
Act; of these, 29 served prison terms.4
Eleven leaders of the Communist Party
were sentenced to prison for "conspiring
to teach" prohibited ideas; the Supreme
Court affirmed their convictions.5 In
1961, the Supreme Court also upheld the
"membership clause" of the Smith Act,
which made membership in any
organization that advocated certain ideas
(in practice, this meant the Communist
Party) punishable by 20 years in prison.6
While many believe that such
ideological witch-hunts are a thing of the
past, this is unfortunately not the case.
The McCarran-Walter Act, a Cold War-era
statute, still provides for the deportation
of aliens who are "members of or
affiliated with any organization that
advocates the economic, international,
and governmental doctrines of world
communism," as well as those who have
in their possession any literature
advocating these doctrines'? InJanuary
of 1987, six Palestinians and one Kenyan
lawfully residing in Los Angeles were
arrested and held without bail for three
weeks. The charge: membership in or
THE NATIONAL PRISON PROJEG JOURNAL

affiliation with the Popular Front for the
Liberation of Palestine, an organization
which, the government alleges, advocates
the "doctrines of world communism."8
Government efforts to deport the seven
based on their political affiliations
continue to this day. American prisons
also hold numerous peace activists, many
of them religiously-inspired, who have
committed symbolic acts of trespass or
property damage and received lengthy
prison terms. On November 9, 1984,
Father Carl Kabat, Father Paul Kabat,
Lawrence Cloud-Morgan, and Helen
Woodson entered a missile base in
Missouri and, as an act of religious
witness, damaged various pieces of
equipment. They brought with them
bread and wine and a book of prayer,
hung signs with messages such as
"Violence Ends Where Love Begins," and
made no attempt to avoid capture.
Charged and convicted of sabotage "with
intent to injure, interfere with, or
obstruct the national defense of the
United States," they were sentenced to
prison for terms ranging from eight to
eighteen years. One dissenting judge
noted that the operation of the base had
in no way been affected by this act of
protest, and that other persons damaging
government property usually received
probation or short prison terms.9 Other
peace activists have received heavy
sentences for such symbolic acts as
planting trees or pouring blood at
military installations.
Radicals often find themselves the
targets of government attempts to
imprison them for crimes they did not
commit. In the 1950s, the Federal Bureau
of Investigation initiated its CounterIntelligence Program, or COINTELPRO.
According to a Senate Select Committee,
the purpose of COINTELPRO was to
'disrupt'groups and 'neutralize'
individuals deemed to be threats to
domestic seCurity. The FBI resorted to
counterintelligence tacticspartly
because its chiefofficials believed that
the existing laws could not control the
activities ofcertain dissident groups,
and that court decisions had tied the
hands of the intelligence community.
Whatever opinion one holds about the
policies of the targetedgroups, many of
the tactics employed by the FBI were
indisputably degrading to afree
society.I°
COINTELPRO was first deployed against
the Communist Party, but by the late
1960s, its chief targets were so-called
"Black Nationalists," particularly the
Black Panther Party (BPP). FBI field
THE NATIONAL PRISON PROJEG JOURNAL

offices were instructed to develop
"imaginative and hard-hitting counterintelligence measures aimed at crippling
the BPP."l1
Elmer "Geronimo" Pratt was a
decorated Vietnam veteran when he
moved to Los Angeles and began studying
at the University of California in 1968. He
joined the BPP, and quickly rose to
become a leader in the Southern
California branch. As such, he was
designated a "Key Black Extremist" by
COINTELPRO, which launched "Operation
Number One" to neutralize him.
In December of
1970, Pratt was
arrested for an
unsolved murder that
had taken place two
years previously. The
FBI actively
collaborated in his
prosecution; it planted
three informers on
Pratt's legal defense
team and obtained
information relating
to trial strategy. The chief prosecution
witness was an informer who had met
regularly with the FBI for two years, but
at the trial, he denied this under oath on
the witness stand. Finally, the only
eyewitness to the murder had picked out
of a lineup a man other than Pratt, but
the records relating to this identification
were removed by persons unknown. Pratt
was convicted of the murder, and
sentenced to life imprisonment.
Amnesty International has stated that
"[t]he effect of COINTELPRO has been to
destroy confidence in the bona fides of
the FBI in all its dealings with Elmer

Pratt," and has called for a new trial. In
addition, at least one FBI agent who
participated in the Los Angeles
COINTELPRO has stated his belief that
Pratt was framed.J2 Nevertheless, all
appeals have been frUitless, and Pratt has
been denied parole nine times. He sits
today in California's Tehachapi prison, irr
his nineteenth year of incarceration.
Another probable FBI victim is
Leonard Peltier, a Lakota Indian and a
leader of the American Indian Movement
(AIM), a native American rights organization patterned on the Black Panther
Party. On June 26,
1975, two FBI agents
were killed in a
shootout with AIM
members on South
Dakota's Pine Ridge
Indian Reservation.
Peltier and three
others were
indicted for murder.
Peltier fled to
Canada; meanwhile,
his co-defendants
were tried and acquitted on the basis of
self-defense. Peltier was extradited from
Canada on the strength of evidence
which the FBI later admitted it had
fabricated for that purpose. In 1977,
Peltier was convicted of the murders, and
sentenced to two consecutive life terms.
Although important ballistics evidence
was withheld from the defense at trial,
his efforts to overturn his conviction
have been unsuccessful. Amnesty
International has urged a new trial for
Peltier, and over 12 million people,
including numerous parliamentarians
and Nobel laureates, have called for his
FAll1990 7

release. Peltier remains imprisoned at the
United States Penitentiary in
Leavenworth, Kansas. 13
Finally, dissidents who do violate the
law in pursuit of their political objectives
may be punished far more harshly than
those who engage in the same acts for
"non-political" reasons. Beginning in 1980,
young American males were required to
register for the draft. By 1982, the
government reported that 674,000
persons required to register had failed to
do so. However, only 13 of these had been
indicted. Not surprisingly, the 13 singled
out for prosecution had all openly stated
their refusal to register as a matter of
principle, and in some cases had publicly
spoken out and organized against draft
registration.14
This discriminatory treatment of
political dissidents continues after
conviction and imprisonment. Susan
Rosenberg is a leftist activist who was
convicted in 1985 of conspiracy to possess
unregistered firearms, unlawful use of
false identification, and possession of
unregistered destructive devices. She
received 58 years in prison, an
extraordinarily harsh sentence given
that she was not convicted of harming
either persons or property. In late 1986,
Rosenberg was transferred to a new
"High Security Unit" (HSU) at the
Lexington Federal Correctional
Institution in Kentucky, along with Silvia
Baraldini and Alejandrina Torres, two
other women convicted of politicallymotivated offenses. Women in this unit
were isolated from all other prisoners,
and subjected to 24-hour camera
surveillance, exclusion from prison
programs, restriction of correspondence
and visiting, and constant strip-searches.
In 1988 the women, represented by
attorneys from the National Prison
Project, Mary O'Melveny of New York, the
Center for Constitutional Rights, and the
People's Law"Office, brought suit before
federal Judge Barrington Parker in
Washington, D.C.. Judge Parker ruled that
they were being punished not for the
offenses they were convicted of, but for
their political views. The government
"specifically punish{es] Baraldini and
Rosenberg for their radical' political
beliefs and their alleged associations
with 'revolutionary' political
organizations....Baraldini and Rosenberg
have been singled out for advocating
ideas disagreeable to the government."15
Amnesty International has denounced
the HSU as "deliberately and gratuitously
oppressive," and stated that "the conditions of confinement and the transfer of
8 FAll1990

prisoners to the HSU on the basis of their
political beliefs constitute 'cruel, unusual
and degrading' treatment in contravention of Article 5 of the Universal Declaration of Human Rights."16
The government of the United States
routinely chastises other nations for
imprisoning or otherwise punishing
political dissidents. This concern for
human rights is admirable;
,
unfortunately, the United States its~lf is
far from having a clean slate on this;";
score. Here, as everywhere else, disseht
comes with a price tag, and many people
in America's prisons are paying that price
today.•

David Fathi is a staffattorney with the
National Prison Project.
lTIME,]uly 24, 1978, p.27.
'The Supreme Court unanimously affirmed Debs'
conviction and sentence. Debs v. United States, 249
U.S. 211 (1919).
318 U.S. sec. 2385.
4E.L. Barrett and W. Cohen, Constitutional Law
(Mineola, New York: Foundation Press, 6th ed.198I),
p.1l37.

5Dennis v. United States, 341 u.s. 494 (1951).
6Scales v. United States, 367 u.s. 203 (1961).
78 U.S.C. sec. 1251(a)(6).

American-Arab Anti-Discrimination Committee v.
Meese, 714 F.Supp.l060, 1063 (C.D.CaI.1989).

8

v. Kaba~ 797 F.2d 580 (8th Cir.1986),
cert. denied, 481 U.s. 1030 (1987).

9United States

Final Report of the Select Committee to Study
Governmental Operations With Respect to
Intelligence Activities (Church Committee Report),
April 1976, vol. II, p.l0.

10

llChurch Committee Report, vol. III, p. 188.
12Amnesty International, United States ofAmerica:
The Case ofElmer "Geronimo"Pratt AI Index AMR
51/27/88 (London: May 1988).
13Amnesty International Report 1990, United States of
America, p. 252; Amnesty International Report 1988,
United States of America, p.139.
I4

Wayte v. United States, 470 U.S. 598, 604-606 (1985).

15Baraldini v. Meese, 691 F.supp. 432, 448 (D.D.C.1988).
In 1989, the United States Court of Appeals vacated
Judge Parker's decision. Baraldini v. Thornburgh, 884
F.2d 615 (D.C. Cir.1989).
16Amnesty International, United States ofAmerica:
The High Security Uni~ Lexington Federal Prison,
Kentucky (Summary), AI Index AMR 51/34/88
(London: 1988).

FOR THE RECORD
• On 9/30/90 the New York Times
reported that a federal district judge-a
Reagan appointee-had announced his
resignation because he believes the
federal sentencing guidelines are too
harsh.
Judge J. Lawrence Irving said, "If I
remain on the bench I have no choice but
to follow the law. I just can't, in good
conscience, cq,ntinue to do this."
He cited as4n example a 19-year-old
man charged¥with possession of and
intent to diStribute cocaine. Judge Irving
said that under the old law, a judge gave
the man a split sentence: six months in
prison with five years' probation. The
offender knew if he violated probation
he would have to return to prison to
serve out the rest of his sentence.
"He did his six months, and after that
he remained free of drugs-we know this
because of regular testing," the judge said.
"He completed his education, got married,
had a child and became a productive, taxpaying member of society."
In contrast, had the young man been
sentenced under the current sentencing
guidelines, he would have been sentenced
to 20 years in prison with no pOSSibility
of parole.
• If the majority of New York State's
drug users and dealers are white, why do
much larger numbers of AfricanAmericans and Latinos wind up in prison?
This is the question raised by Imprisoned
Generation, a new report by the
Correctional Association of New York
and the New York State Coalition for
Criminal Justice. The report finds that
young African-American men are over 23
times more likely to be incarcerated in
New York, and young Latino men 11 times
more likely, than young white men. This
disparity stems largely from police
concentrating their drug enforcement
efforts on low-income minority
communities. Yet, while the state has
increased its corrections budget, it has cut
key social and economic programs. The
report notes, "The State recently
authorized the Urban Development
Corporation, originally established to
create housing for poor people, to issue
$2.1 billion in bonds for new prison
construction-housing for poor people of
an altogether different kind." Imprisoned
Generation (28 pages) is available for $5
from the Correctional Association of
New York, 135 East 15th St., New York,
NY 10003, 212/254-5700.
THE NATIONAL PRISON PROJECT JOURNAL

rt
A PROJE0 OF THE AMERICAN CIVIL L1BERTIE~ UNION FOUNDATION, INC.
VOL. 5, NO.4, FALL 1990 • ISSN 0748-2655i~
.'~:;~

.. ';;:

Highlights of Most
Important Cases
Remedies/Crowding
Federal district courts retain wide discretion
to remedy unconstitutional overcrowding,
according to the federal Court of Appeals for
the Third Circuit, which upheld the district
judge's order banning double-ceiling at the
State Correctional Institution at Pittsburgh.
Tillery v. Owens, 907 F.2d 418 (3d Cir.1990).
The appeals court cited the trial judge's
"detailed and meticulous" findings about
overcrowding, understaffing, and deficiencies
in health care, sanitation, plumbing,
ventilation and other prison conditions, and
agreed that double ceiling under those
conditions was unconstitutional. It rejected
prison officials' argument that double ceiling
is acceptable unless it is shown to cause the
other problems; it is enough that double
celling is "unbearable" in conjunction with
them. The court disagreed with Cody v.
Hillard, 830 F.2d 912 (8th Cir.1987) (en banc),
cert. denied, 485 U.S. 906 (1988), which stated
that such a causal relationship must be proved
to support crowding relief, describing Codjs
view as inconsistent with the "totality of
circumstances" analysis dictated by the
Supreme Court in Rhodes v. Chapman.
Nor did the fjllerycourt agree that
population limits are a disfavored remedy and
that courts must address other conditions of
confinement in preference to acting against
crowding. See Inmates ofOccoquan v. Barry,
844 F.2d 828 (D.C.Cir.1988). Rather, the court
observed, "The district court is entitled to
require immediate correction of those
conditions that it finds to contribute most
significantly to the constitutional violations
identified and that it determines can be most
readily remedied." 907 F.2d at 418.
Asimilar argument received shorter shrift
in Fisher v. Koehler, 902 F.2d 2 (2d Cir.1990)
(per curiam). In that case, the district court
had specifically found that overcrowding was
a cause of excessive levels of violence in one
THE NATIONAL PRISON PROJE0 JOURNAL

of the New York City jails on Rikers Islan4i
After extensive remedial proceedings,i!
entered an order containing a population cap,
but delayed its implementation for a year to
give jail authorities a chance to show that they
could control violence without a crowding
limit. On appeal, the defendants argued that
even the threat of a population cap was an
abuse of the court's remedial discretion. The
court held that all the defendants' arguments
"border on the frivolous."
The Third Circuit has also upheld the power
of a district court to enforce population limits
with monetary fines. In Inmates ofthe
Allegheny CountyJail v. Wecht, 901 F.2d 1191
(3d Cir.1990), the appeals court held that the
district court properly imposed prospective
fines of $25,000 for any month in which a
court-ordered population cap was exceeded
and $100 for each inmate released in an effort
to meet the population cap. The defendants
argued that it was impossible for them to
comply with the court's order limiting
population because they were faced with
conflicting state court orders remanding
particular defendants to jail. The court rejected
this defense because the situation was
ultimately of the defendants' own making,
given their long-standing failure to comply
with prior court orders requiring the county to
provide adequate, constitutional jail space.
This power is not without limits, however.
In Mercer v. Mitchell, 908 F.2d 763 (lIth Cir.
1990), the district court had entered an order
providing for fines of $100 per day per
prisoner in excess of a previously entered
population cap. Subsequently it assessed fines
consistent with its order without making an
explicit finding of contempt and without
giving the county a chance to show cause why
it should not be held in contempt. The appeals
court held that those accused of violating a
court order must always have an opportunity
to show that they actually complied or that
compliance was excused for some reason, such
as the "impossibility" defense.
The court added that if prison officials show
that they can safely accommodate more
inmates than the population cap calls for, the
court should modify the population cap rather
than hold the officials in contempt. This is a
controversial point in federal jurisprudence

and there is much contrary authority. See, e.g.,
Badgley v. Varelfl; 729 F.2d 894, 899 (2d Cir.
1984) (existenc~iof a consent judgment
capping populi(ion obviated the need to reach
the constitutional claims); Inmates of the
Suffolk CountyJail v. Kearney, 734 F.Supp. 561,
565 (D.Mass. 1990) (permitting modification
based on a subsequent show of constitutionality would "undermine and discourage
settlement efforts in institutional cases").

Religion (Free Exercise)
Prisoners' claims concerning the free
exercise of religion continue to divide the
federal courts. The Supreme Court's decision in
OZone v. Shabazz, which applied a standard of
reasonableness to prison officials' restrictions
on religious exercise, clearly cut back on
prisoners' religious rights. But the question
"how far?" remains a matter of dispute, and
the dispute is over the proper method of
evaluating prison officials' justifications.
The issue has been stated most explicitly by
the Seventh Circuit in Hunafa v. Murphy, 907
F.2d 46 (7th Cir.1990).JudgePosner "assum[ed]
that the question whether a challenged
regulation strikes a proper balance between
the prisoner's right to practice his religion and
the needs of the penal system is one of fact.
Read literally, the articulation of the standard
[of OZone] could be thought to make the
question one of law, requiring...only a
determination that a rational basis for the
regulation can be conjectured." But, he
concluded, the OZone Court's repeated
references to the transcript of an evidentiary
hearing supports the view that the question is
one of fact. 907 F.2d at 48. Under Judge Posner's
view, it follows that a court may-indeed,
must-assess the logic, sincerity, and
substantiality of prison officials' justifications,
rather than simply accept them at face value.
In Hunafa, a Muslim inmate in segregation
complained that they were served pork two or
three times a week. They received a non-pork
substitute of soup and bread in addition, but
the pork was left on the trays, creating a risk
of contamination and leading the plaintiff to
miss several meals a week as a result. The
district court in Hunafa had granted summary
judgment for the prison officials, but the court'
of appeals reversed. It held that defendants'
FALL 1990 9

concern with the inconvenience of making up
eleven separate trays with no pork seemed
"trivial." Their concern that special treatment
for these Muslims would cause "hostility" to
"ripple throughout the prison" was
"implausible, though not impossible." Their
argument that mess hall workers, knowing
whom the trays were for, would try to
smuggle contraband in the trays, was
"plausible, though still speculative." In any
case, these benefits "must be weighed against
the cost to the inmate of having to give up
several meals a week in order to avoid
defilement," and the record was insufficient
for the court to "estimate the magnitude" of
the prison officials' concerns.
The Ninth Circuit engaged in the same kind
of reasoning in Swift v. Lewis, 901 F.2d 730 (9th
Cir.1990). The plaintiffs were Christians who
adhere to the "Vow of the Nazarite," which
prohibits cutting the hair and beard. Prison
rules forbade beards and long hair, with
exemptions for Sikhs and Native Americans;
prison officials refused to extend the
exemption to the Christians. Here, too, the trial
court had granted summary judgment to the
prison officials, but the court of appeals
reversed, holding that the defendants had not
provided sufficient justification for their
policy. Although they cited the usual interest
in identification of inmates, 1 prevention of
sanitary problems, reducing guard-inmate
contact during body searches, and reducing
"homosexual attractiveness," they presented
no evidence that these asserted interests were
the actual reasons for the policy. Nor did they
show that any of these interests justified
disparate treatment of adherents of different
religions.
The Eighth Circuit was equally critical of
prison officials' justifications in Salaam v.
Loekhar~ 905 F.2d 1168 (8th Cir.1990), which
required them to deliver mail addressed to
inmates in their Muslim names and to permit
prisoners to add those names to their clothing.
The court found defendants' reasons for
refusing to recognize Muslim names generally
illogical and without eVidentiary support. It
weighed in the plaintiff's favor the fact that
state law permits judicial name changes for
prisoners as long as the committed name is
retained in prison records. It also rejected
prison officials' speculation that some inmates
might become unreasonably confrontational
over their names.
By contrast, less than a month later, the
same court in Iron Eyes v. Henry, 907 F.2d 810
(8th Cir.1990), upheld a hair length restriction
as applied to a Native American prisoner. The
court held that the regulation was reasonable
because it served prison officials' interests in
preventing the concealment of contraband
and avoiding confusion in prisoner
identification. The court accepted the
10

FALL 1990

argument that long hair on prisoners would
require more and longer searches, which
would generate more risk and animosity
between staff and inmates, even though the
same kind of speculation had been rejected in
Salaam.

~
Medical C a r e } ;
Courts continue to disagree about the lill¢'
between deliberate indifference and
,~f
malpractice in medical care cases. In Brozjm ~.
Borough o/Chambersburg, 903 F.2d 274"~d
Cir.1990), the plaintiff complained to th~ jail
doctor about pain in his ribs. The doctor
diagnosed a bruise after looking at him but not
touching him. He later proved to have two
broken ribs. After a jury ruled against the
plaintiff, the court held his claim frivolous
and awarded attorneys' fees against him,
observing, "While the distinction between
deliberate indifference and malpractice can be
subtle, it is well established that as long as a
physician exercises professional judgment his
behavior will not violate a prisoner's
constitutional rights."
The Second Circuit, in Liseio v. Warren, 901
F.2d 274 (2d Cir.1990), took a different
approach. There, the jailed plaintiff told the
booking officer he was undergoing heroin
withdrawal but did not mention his alcohol
abuse. The jail doctor examined him but did
not inquire into the possibility of alcohol
withdrawal, even though alcohol withdrawal
is frequent in jail and more often fatal than
heroin withdrawal, and even though the
doctor was on notice that the plaintiff was a
"poor historian" of his condition. The appeals
court reversed the district court's grant of
summary judgment for the defendants,
holding that these facts and the plaintiff's
expert's conclusion that the doctor had
"severely mismanaged" the plaintiffs case
could support a finding of deliberate
indifference.
The difference between the two courts'
approaches is that in Brown, the court
construes "professional judgment" simply as a
judgment made by a professionaL There is no
inquiry into the manner in which the
judgment was made or on what it was based,
and the failure to perform the most basic and
necessary physical examination is given no
significance. In Uscio, by contrast, the court
asks whether the doctor actually had any basis
on which to make a judgment, and concludes,
in effect, that a doctor's judgment made
without obtaining necessary information is
simply not entitled to the deference normally
given professional judgment under the
deliberate indifference standard. In Liseio,
failing to ask the necessary questions
amounted to deliberate indifference.

Use of Force
The Fifth Circuit federal Court of Appeals
has joined other federal courts in making it
more difficult for prisoners to recover for
misuse of force by prison staff. In Huguet v.
Barnet~ 900 F.2d 838 (5th Cir.1990), the court
held that in any Eighth Amendment force case
the plaintiff must prove
1. a significant injury, which
2. resulted directly and only from the use of
force that was clearly excessive to the need,
the excessiveness of which was
3. objectivelt unreasonable, and
4. the actiOllfonstituted an unnecessary and
wanton infllCtlon of pain.
Only after'the first three elements are
proven does the analysis shift to the fourth,
which deals with the officer's state of mind
and inquires whether force was used in "a
good faith effort to maintain or restore
discipline or maliciously and sadistically for
the very purpose of causing harm." The quoted
language is cited from the Supreme Court's
decision addressing a prison disturbance in
Whitley v. Albers. The Fifth Circuit has thus
joined several other circuits in applying the
Whitley"malicious and sadistic" test to all
prison use of force cases, even those that deal
with a single inmate and not a riot or
disturbance. (See Mark Lopez and David Fathi,
"The Lost Meaning of Whitley v. Albers," NPP
JOURNAL, Summer 1990.) The court went out
of its way to stress the burden on the plaintiff:
"No matter how significant the injury, how far
in excess of the need, and how unreasonable, if
the officer's action did not constitute a
wanton infliction of pain, the plaintiff's claim
must fail."
The first three elements are taken verbatim
from the Fourth Amendment use of force
standard adopted by the Fifth Circuit in
johnson v. Morel, 876 F.2d 477 (5th Cir.1989)
(en bane). Injohnson, seven of the sixteen
judges concurred in the result but severely
criticized both the "significant injury"
requirement and the "directly and only"
causation standard, stating that "these added
restrictions...are imposed by ipse dixit without
so much as a citation of authority or a
statement of reasons for imposing them." They
pointed out that there was no basis in the
Fourth Amendment for the "significant injury"
requirement. The causation requirement is also
unprecedented: "a § 1983 plaintiff ordinarily
need prove only cause in fact and proximate
or legal cause, not sole causation." (Emphasis
in originaL)
In Hugue~ likewise, the court cited no
authority and gave no explanation for
adopting these elements in an entirely
different legal context, although they are as
questionable under the Eighth Amendment as
under the Fourth. As to injury, the Sixth
Circuit declared in a recent use of force case
THE NATIONAL PRISON PROJEG JOURNAL

that "a prisoner alleging an eighth amendment
violation need not prove that he suffered a
serious physical injury, rather he must
demonstrate that the infliction of pain was
unnecessary and wanton." McHenry v.
Chadwick, 896 F.2d 184 (6th Cir.1990). That
position is consistent with the history of
Eighth Amendment adjudication, which
provides ample authority that non-injurious
actions in or out of prison may be cruel and
unusuaL See, e.g., Robinson v. California, 370
U.S. 660 (1962) (incarceration for status of
drug addiction); Trop v. DUlles, 356 u.s. 86
(1958) (deprivation of citizenship).
Meanwhile, the Fourth Circuit may be
moving in the opposite direction from the
Fifth, having vacated its opinion in Miller v.
Leathers. In that case, a three-judge panel of
the court not only held that Whitley v. Albers
governed all use of force cases, but also
affirmed the dismissal of a case in which a
guard had broken a handcuffed prisoner's arm
with a riot stick after the prisoner refused an
order and insulted the guard's mother. The
Millercourt, in authorizing such injurious
force on a restrained inmate whose
misconduct was primarily verbal, went to an
extreme of deference to low-level prison
personnel that is probably unique in federal
jurisprudence. The panel decision will now be
reviewed by the entire ten-judge appeals court.
885 F.2d 151 (4th Cir.), vacated and rehearing
in bane ordered, 893 F.2d 57 (4th Cir.1989).
'This interest was addressed in Benjamin v. Coughlin,
905 F.2d 571 (2d Cir.1990), petitionfor certiorari
filed, 59 U.S.Law Week 3259 (August 16, 1990), by the
expedient of having an intake photograph taken
with the hair pulled back, and a new photograph
taken whenever prison officials believed that the
inmate's appearance had significantly changed.

Other Cases
Worth~ Noting
u.s. COURT OF APPEALS
Heating and Ventilation/Mental
Health Care/Crowding/Cruel and
Unusual Punishment
Wilson v. Seiter, 893 F.2d 861 (6th Cir.1990).
Excessive exposure to heat may violate the
Eighth Amendment, but occasional exposure to
95-degree temperatures does not.
Housing mentally ill inmates in dormitories
with others does not violate the Eighth
Amendment absent evidence of violence.
Double bunking in dormitories providing
about 50 square feet per inmate of living space
does not violate the Eighth Amendment where
THE NATIONAL PRISON PROJECT JOURNAL

the plaintiffs had access to substantial
recreationfacilities during the day.
Summary judgment was properly granted to
defendants on plaintiffs' other claims
(unsanitary eating conditions, inadequate
heating, commingling of physically ill inmat~s,
inadequate ventilation, excessive noise and~'
insect infestation) because their affidavits ,,;(~
establishing "affirmative efforts to maintai~
habitable conditions" demonstrate a lack qj.' ,
"obduracy and wantonness." (866) At md~,
plaintiffs allege negligence. In short, pris'~ers'
Eighth Amendment rights are explicitly
measured in this case by the intentions of
prison officials and not by the actual
conditions of confinement. (Ed. Note: The
Supreme Court granted certiorari in this case
on October 2, 1990.)

Psychotropic Medication/Federal
Officials and Prisons
United States v. Watson, 893 F.2d 970 (8th
Cir.1990). Federal prisoners who have been
shown to have a mental disease or defect for
which treatment is required and have been
committed to a psychiatric facility have a
qualified right to refuse psychotropic
medication; one case is remanded for a
determination whether the prisoner can
function adequately (i.e., without posing a
danger to self or others) without medication.
As to the other, at 982:
If the government shows that it cannot
control a mentally illprisoner in the
generalpopulation, due process does not
require it to provide the least restrictive
treatment modality.... Rather, we hold that
psychotropic drugs may be constitutionally
administered to a mentally illfederal
prisoner whenever, in the exercise of
professionaljudgment, such an action is
deemed necessary to remove thatprisoner
from seclusion and to prevent the prisoner
from endangering himself or others.
Whether the holding as to the first prisoner
survives Washington v. Harper is not clear. In
Harper, the Supreme Court pretended that a
prisoner had to be "dangerous" or that his
condition was "likely to cause harm" to be
medicated under the state standard; in reality,
the standard it upheld permitted medication if
the prisoner posed a likelihood of serious harm
to self, others or property, or was "gravely
disabled."

Suicide Prevention/Pre-Trial Detainees/Damages/Qualified Immunity
Lewis v. Parish of Terrebone, 894 F.2d 142
(5th Cir.1990). The decedent was placed in
solitary confinement after an escape attempt;
he committed suicide; the psychiatrist's report
warning of the danger of suicide and
recommending close observation sat unopened

until after he was dead.
Evidence that the warden knew the
decedent had said he wanted to die, that he
had said he had taken an overdose of pills,
that a psychiatric examination had been
ordered and performed, and that the decedent
had been placed in solitary confinement
supported a finding of deliberate indifference.
(The court does not mention the failure to
look at the psychiatric report for some reason.)
The sheriff was not entitled to qualified
immunity; the "constitutional duty to protect a
prisoner prone t9 suicide from selfdestruction" is l1,~arly established.
The trial court properly excluded expert
testimony about the decedent's future wage
loss in the absence of any evidence that the
decedent had a work history to support the
calculation.
The evidence supporting liability also
justified an award of punitive damages, which
the jury made in the amount of the decedent's
funeral costs. The amount is upheld in the
absence of an objection from plaintiff's
counseL The awards of zero compensatory
damages to widow and children are not
"shocking" where there was little evidence of
the extent of their emotional loss.

Protection from Inmate Assault/
Negligence, Deliberate Indifference
and Intent
Santiago v. Lane, 894 F.2d 218 (7th Cir.1990).
The plaintiff was assaulted at Stateville in
"death alley" by gang members, whom he later
identified, and was transferred to avoid
retaliation, but defendants never notified
officials at the receiving prison of his need for
protection against gang retaliation. He
informed his counselor of his history but
nonetheless was sent to "the toughest house at
Menard" despite his excellent record; he was
robbed and threatened, and his request for
reassignment was not acted on promptly. He
was then assaulted again.
Defendants were entitled to summary
judgment as to the "death alley" attack;
although he alleged that the area was
"dangerously concealed" and there had been
other attacks there, there was no evidence of
any prior attacks there.
Prison officials' failure to develop policies or
procedures for notification of receiving
prisons of the danger to prisoners transferred
for safety reasons raised a factual issue
precluding summary judgment for the
defendants. "[I]f 'the need for more or
different [action] is so obvious, and the
inadequacy so likely to result in the violation
of constitutional rights...the policy-makers...can
reasonably be said to have been deliberately
indifferent to the need.'" (223, quoting Canton
v.Harris).
At n. 2: The district court had noted an
FAll1990 11

apparent inconsistency in Seventh Circuit
definitions of deliberate indifference ("gross
negligence" vs. "criminal recklessness"). This
panel uses the latter standard, noting that it
has been cited with approval by the Supreme
Court.

Procedural Due Process-Visiting
Taylor v. Armontrou~ 894 F.2d 961 (8th Cir.
1989). The plaintiff's 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
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. ofCorrections v.
Thompson, which enumerated the
circumstances under which visits "may" be
denied. (As the dissent in Thompson pointed
out, this reasoning contradicts Hewittv.
Helms.)
This opinion supersedes that of 888 F.2d 555
(8th Cir.1989) but the changes are technical.

Protection from Inmate Assault/
Medical Care-Access to Medical
Personnel, Serious Medical Needs/
Deliberate Indifference
Brown v. Hughes, 894 F.2d 1533 (lIth Cir.
1990). The plaintiff spoke to a jail sergeant
about a "racial problem" in his multi-occupant
cell; the sergeant told him he would have to
see the captain; the plaintiff went back to his
cell anci was attacked. His foot was broken and
there was a four-hour delay in providing
medical attention, by which time his foot was
too swollen to be placed in a cast.
Defendants were entitled to summary
judgment on the assault claim since the
plaintiff "did not say that he had been
threatened, or that a fight was imminent, or
that he fearedan attack, nor is there evidence
that racial tensions in the jail frequently
resulted in violence," and the plaintiff
returned to his cell voluntarily. (1537)
The delay in medical treatment presented a
factual question barring summary judgment.
At 1538: "When prison guards ignore without
explanation a prisoner's serious medical
condition that is known or obvious to them,
the trier of fact may infer deliberate
indifference.... [A]n unexplaineddelay of hours
in treating a serious injury states a prima facie
case of deliberate indifference." At n. 4:
"Evidence of recent traumatic injury...has
generally been sufficient to demonstrate a
serious medical need."

12 FAll1990

Confiscation and Destruction of Legal
Materials
Gregory v. Nunn, 895 F.2d 413 (7th Cir.1990).
The plaintiff's allegation that prison officials
had accepted and lost materials essential to his
pursuit of post-conviction relief stated a claim
for denial of access to courts, even if the ~
materials were not as "irreplaceable" as he ,),
believed. The court suggests that a higher
standard of care may be required of prisQn'
officials when they deal with prisoners' legal
materials.
,':
"':.r

Protection from Assault/Negligence,
Deliberate Indifference and Intent
Redman v. City ofSan Diego, 896 F.2d 362
(9th Cir.1990). The plaintiff was raped by his
cellmate and complained to his friends outside,
who telephoned the jail and was told it wasn't
operating a "baby-sitting service." Aguard
asked the plaintiff if he had any problems,
within the view of the rapist and other
inmates, and he said no because he feared
retaliation. He was then raped four more times
by the same inmate and others.
The district court properly granted a
directed verdict for the city absent any
evidence that jail personnel acted pursuant to
policy in confining the plaintiff with his
rapist and responding as they did to the phone
call.
Detainees must show deliberate indifference
to recover for a violation of the right to
personal security; gross negligence or
recklessness are not sufficient. Adirected
verdict for the individual defendants was
proper. Although a jury could have found
negligence in the jail's "ineffective and
perfunctory" investigation, there was no
evidence of deliberate indifference even
though the rapist had a history of sexual
coercion and'the plaintiff had initially been
placed in the "young and tender" unit.

to ensure that the recommendation, once
approved, was carried out; and the contract
physician's failure to conduct tests relevant to
heart disease even when there was no noncardiac explanation for the decedent's
symptoms.
At 853: "Failure to respond to an inmate's
known medical needs raises an inference that
there was deliberate indifference to those
needs." Evidence that decedent lost
consciousness, fell and was left unattended by
nurses supported a deliberate indifference
claim against ,em.
, <.j

Protection1'rom Inmate Assault
Wilks v. Young, 897 F.2d 896 (7th Cir.1990).
Ajury instruction provided that the defendant
must have known of the substantial risk that
violence would occur was erroneous. Aproper
instruction would add that liability can be
found based on "objective knowledge," i.e., if
the danger "would be apparent to a reasonable
person in [the defendant's] position." (898)

Suicide Prevention
Belcher v. Oliver, 898 F.2d 32 (4th Cir.1990).
The decedent was arrested for public
intoxication and hazardous driving and
hanged himself in jail with his belt. The
defendants did not remove his shoelaces and
belt although it was their normal procedure to
do so.
Defendants were entitled to summary
judgment. At 34-35: "The general right of
pretrial detainees to receive basic medical care
does not place upon jail officials the
responsibility to screen every detainee for
suicidal tendencies." The decedent showed no
evidence of such tendencies although he was
"singing, clapping his hands and humming."
The failure to remove his shoelaces and belt
was at most negligent.

Mental Health Care/Equal Protection
Medical Care-Deliberate Indifference
Miltier v. Beom, 896 F.2d 848 (4th Cir. 1990).
The decedent had a history of heart disease.
The prison system's chief physician failed to
ensure that a recommended transfer to a
cardiology unit was carried out. Acontract
physician concluded that he "doubted" heart
disease but conducted no tests of any value in
detecting it; despite her continuing symptoms
of heart disease, he transferred her back to
general population. Four months later, she was
brought to the clinic with severe chest pains.
The contract doctor ordered a tranquilizer
over the telephone and observation until
another doctor arrived that evening. She died
that afternoon.
Deliberate indifference could be inferred
from the referring physician's failure to
follow up on the recommendation of transfer
to a cardiac unit; the chief physician's failure

Fetterusso v. State ofNew York, 898 F.2d 322
(2d Cir.1990). State statutes provide that
persons acquitted of criminal charges by
reason of mental illness and committed based
on dangerous mental disorders must pay the
costs of their incarceration. They do not
require payment of others incarcerated
pursuant to criminal court order (those being
evaluated for fitness to stand trial, those
deemed incompetent to stand trial, and
prisoners in need of mental health care).
Civilly committed persons must also pay for
their care.
Since mental health acquittees are released
into the general population when their mental
health is restored, the statutory distinction
"rationally serves the goal of shifting the cost
of psychiatric services to those...who would
have remained outside the reach of the
criminal justice system but for their combined
THE NATIONAL PRISON PROJECT JOURNAL

present mental illness and dangerousness."
(327)

of "pattern, intent, absence of mistake, etc."

AIDS
Procedural Due Process-Disciplinary
Proceedings
Mason v. Sargent, 898 F.2d 679 (8th Cir.
1990). The plaintiff was convicted of a
contraband offense based on the presence of
the contraband in his locker despite his
defense that it was put there by another
inmate who shared a locker and who admitted
ownership of the contraband in a written
statement to the disciplinary committee. The
court holds that there was "some evidence" to
support the conviction without saying what
that evidence was and exactly what
conclusion the evidence supported.

Exhaustion of Remedies/Personal
Property
Johnpoll v. Thornburgh, 898 F.2d 849 (2d Cir.
1990). Federal prisoners' complaints about the
improper use of the Inmate Financial
Responsibility Program must be pursued
through the Bureau of Prisons' administrative
remedy process. The plaintiff's argument that
collecting civil judgments (e.g. back rent owed
to a landlord) is unrelated to imprisonment is
rejected, since making prisoners pay their
debts serves rehabilitative purposes.
Administrative remedies must be pursued
"except to the extent that the administrative
procedures are incompetent to provide redress,
for example, to redress a challenge to the
constitutional validity of a statute or
regulation." (851) Aclaim of improper
application of the statutory scheme is
redressable by prison officials and must be
exhausted. Economic loss generally does not
constitute "irreparable injury" that might
excuse exhaustion of administrative remedies.
Administrative authorities are not
competent to address constitutional challenges
to regulations, and no useful purpose would be
served by administrative fact-finding. But the
plaintiff's likelihood of success makes
preliminary injunctive relief inappropriate.
The regulation st!rves valid rehabilitative
interests and is within the Bureau of Prisons'
statutory authority. The program is not
punitive but rehabilitative.

Use of Force/Damages
Ismail v. Cohen, 899 F.2d 183 (2d Cir.1990).
The plaintiff was struck from behind and
knocked down by a police officer, sustaining
two displaced vertebrae, a cracked rib and
serious head trauma, and was then prosecuted
on false criminal charges. Ajury award of
$650,000 and punitive damages of $150,000 was
reasonable.
Evidence of a subsequent incident of
excessive force by the defendant officer was
admissible under Fed.R.Ev. 404(b) as evidence
THE NATIONAL PRISON PROJECT JOURNAL

Gomez v. United States, 899 F.2d 1124 (11th
Cir.1990). Aprisoner with AIDS should not
have been released on bail pending
consideration of his habeas corpus petition
because he would not have been entitled to
release if he prevailed on the petition.
_, .
Although the district court had found that the'
plaintiff was not receiving adequate medicii!' '
care, "relief of an Eighth Amendment viola}1'on
does not include release from confinementii;'
(1126) The question is not whether petitioner's
current care is adequate, but whether the
Bureau of Prisons can provide adequate
treatment anywhere, and adequate AIDS
treatment can be and is being provided in the
Springfield federal medical center.

Searches-Person
Nitcherv. Cline, 899 F.2d 1543 (8th Cir.1990).
Aclaim of an x-ray search that was ordered by
security officials without medical
authorization was not frivolous. The failure to
inquire into the plaintiff's medical history to
consider the possible cumulative effect of xrays, to get a doctor's order, to have medical
personnel present, and to record the x-ray in
his chart evidence deliberate indifference.
The search may also have violated the
Fourth Amendment. A"generalized penological
interest in searching inmates for contraband"
is not sufficient justification; reasonable
suspicion that an inmate is secreting
contraband is required, and prison officials
must show that less invasive means would not
detect the contraband. The manner of search is
also important. Here, the x-ray was performed
by an inmate technician without medical
personnel present and with no medical history
taken.

Medical Care-Standards of LiabilityDeliberate Indifference/Medical
Care-Denial of Ordered Care
Wood v. Housewright, 900 F.2d 1332 (9th Cir.
1990). The plaintiff was admitted to prison
with two pins in his shoulder and his arm in a
sling. Aguard confiscated the sling and a few
days later one of the pins broke. Adoctor
prescribed medication and recommended an
orthopedic consult. Amonth later, nothing had
happened, he complained again, and a week
later got more medication and another
orthopedic referral. Two weeks later (about
seven weeks after the pin broke), the pin was
removed. The chief cause of the delays and
initial confiscation of the sling was the failure
to prOVide the plaintiff's medical records
promptly.
The plaintiff's medical care may have been
negligent but was not deliberately indifferent,
though the lack of records and confiscation of

the sling were "apparently inexcusable." The
plaintiff "was given medical care at the prison
that addressed his needs." (1334) Delay must
cause "substantial harm" to violate the Eighth
Amendment.

Protection from Inmate Assault
Berry v. City ofMuskogee, 900 F.2d 1489 (10th
Cir.1990). Aconvicted but unsentenced
prisoner should be treated as a convict whose
rights are governed by the Eighth Amendment
and not as a detainee.
Deliberate indi{ference, and not the Whitley
"malicious and sa~istic" standard, governs this
inmate-on-inma~ murder case that did not
arise from a prison disturbance.
The municipality could be found
deliberately indifferent under Canton based
on its policies of (1) not locking down the
prisoners at night, (2) not maintaining control
of wire brooms, (3) not separating crime
partners but allowing them to commingle, and
(4) having only one officer with multiple
duties to supervise the jail. (The decedent was
murdered by his accomplices using part of a
wire broom.) In so holding, the court notes the
weakness of the evidence on jail authorities'
notice of the specific danger to the decedent,
and of prior assaults and murders in the jail.

Remedies/Judicial Disengagement/
ConsentJudgments
Halderman v. Pennhurst State School and
Hospital, 901 F.2d 311 (3d Cir.1990). This court
has not decided whether courts have "inherent
jurisdiction to enforce settlement agreements
in cases that were once properly before them."
However, the district court retains jurisdiction
of a settlement agreement that is explicitly
adopted by the court as an order. Adispute
over the meaning of a "sunset clause" in the
consent judgment is to be resolved by contract
principles. The cessation of "active
jurisdiction" means that "the district court
would cease 'hands on' control over the matter
and simply resort to the usual continuing
jurisdiction that courts routinely exercise over
their injunctions." (320) "Active jurisdiction"
means "active supervision."
State officials could be in noncompliance
with consent judgment provisions where the
judgment clearly placed an obligation on them,
even if local or state law placed the obligation
elsewhere. State officials were in substantial
noncompliance with a "monitoring" obligation
where they did not also take enforcement
steps, beyond persuasion, to correct violations
revealed by its monitoring.

Use of Force
Wisniewski v. Kennard, 901 F.2d 1276 (5th
Cir.1990). The plaintiff alleged that upon his
recapture after an escape, a deputy sheriff
handcuffed him, put his revolver in plaintiff's
FALL 1990 13

mouth and threatened to blow his head off,
and twice punched him in the stomach. As a
result he was frightened and has suffered bad
dreams. These injuries are not "significant"
within the meaning of Johnson v. Morel and do
not state a constitutional claim.

U.S. DISTRICT COURT
Emergency/Management, Safety and
Security-Operations/ Classification/
Religion-Services Within Institution
Equal Protection
Ra Chaka v. Franzen, 727 F.Supp. 454 (N.D.Ill.
1989). Prison officials locked down the prison
during an emergency, classified the inmates as
"aggressive and predatory," "normalsituational," and "passive-dependent,"
separated them into different units, and
implemented a "unit management" plan
designed to keep the groups from mixing. They
denied requests for inter-unit ]umu'ah services
but authorized separate services in different
housing units.
Plaintiff's injunctive claim was moot
because the prison had instituted the services
he sought.
The restriction on services is upheld, since it
was rationally related to security, there were
alternative means for religious exercise, doing
what plaintiff wanted would have been
contrary to the purpose of the unit
management system, and there was no ready
alternative. '
The First Amendment "does not require an
equal apportionment, or identical
opportunities" for all religious groups, but
prison officials must provide minority faiths
"a 'reasonable opportunity' comparable to
fellow prisoners who adhere to conventional
religious precepts." (460) The failure to
provide Muslims a precisely equal portion of
the budget did not violate equal protection.

Correspondence-Legal and Official/
Negligence, Deliberate Indifference
and Intent
Faulkner v. 'McLocklin, 727 F.Supp. 486
(N.D.Ind.1989). Defendants violated the
Constitution when they opened outside the
addressee's presence letters to a detainee from
the Indiana Civil Liberties Union, a legal
services program, and the Senate Committee on
Agriculture, Nutrition and Forestry. "[I]t seems
to be settled" that mail from elected officials
or government agencies "is entitled to the same
protection as mail from attorneys," since it
"touches upon the inmate's First Amendment
right to petition the government for redress of
grievances." (490)
Prison officials can adopt regulations
requiring legal mail to be marked in a
particular way and then open any nonconforming items outside the addressee's
14 FAll 1990

presence. Absent such regulations, letters from
legal organizations cannot be opened.

Attorneys' Fees and Costs
Meriwether v. Coughlin, 727 F.Supp. 823
(S.D.N.Y.1989). In a prison damage case
prosecuted by a large New York City firm, fe~
are awarded at rates up to $290 an hour inj
1989; the firm's rates are characterized as "il). ,
the low end of the spectrum of those charg~
by large established New York firms ... [put] in
the high range of rates charged by attorrieys of
reasonably comparable skill in recent : 11
prisoners' rights litigation." (830) The'attorney
who got up to $290 an hour is a 1974 law
graduate; a 1976 graduate got $230; a 1982
graduate got $175; and a 1987 graduate got $130
(nn.14-15).
The total award for this complex case that
was resolved in a lengthy jury trial is $419,000
for the district court proceedings and $105,000
for appellate work.

AIDS/Privacy/Procedural Due
Process- Administrative Segregation/Equal Protection/Temporary
Release
Harris v. Thigpen, 727 F.Supp. 1564 (M.D.Ala.
1990). Mandatory HIV testing of prisoners does
not violate the Fourth Amendment.
Prisoners have no privacy rights. The right
to privacy is a right to be left alone, and
prisoners cannot be left alone because they
committed crimes. Prisoners are analogized to
those who have "made their privacy a matter
of public interest" and thereby waived their
privacy.
The isolation of HIV-infected inmates does
not deny equal protection. At 1572: "It appears
to this Court that the Plaintiffs in this case
selfishly assert their rights to expose other
inmates to their problems independent of any
right of the other inmates to be protected from
what is admitted to be a dread fatal disease...."
The failure to provide a hearing before
segregating an HIV-positive inmate does not
deny due process. At 1572-73: "The purpose of a
hearing is to allow the authority to show
reasons why the infringement should be
imposed on the offended party. Where the
[HIV] tests have demonstrated that the
offended party is a carrier of a serious disease
or is reasonably thought to be a carrier of a
serious disease, the reason for the confinement
is apparent, and there is no occasion for a
hearing."
Denial of access to temporary release and
other prison programs did not deny equal
protection.
The Rehabilitation Act is not violated by
defendants' practices because plaintiffs are not
"otherwise qualified" and a significant risk of
transmission would remain after "reasonable
accommodations." (1583)

Suicide Prevention/Negligence,
Deliberate Indifference, and Intent
Simmons v. City ofPhiladelphia, 728 F.Supp.
352 (E.D.Pa.1990). Apublic intoxication
arrestee hanged himself in jail with his
shoelaces. Evidence that the decedent fit the
psychological profile of a suicide risk, he was
placed in an isolated cell but should have been
observed at all times, the city police officers
had no suicide prevention training, that there
had been 20 suicides in city lock-ups in five
years as well as attempted suicides, and that
the head of psy~hiatry in the city jails had
warned defen4~ts to do something about it,
supported muiifcipalliability under the
deliberate indifference standard.

Class Actions-Certification of Classes
Justiciability-Mootness
Goetz v. Crosson, 728 F.Supp. 995 (S.D.N.Y.
1990). In a case challenging practices
concerning the appointment of psychiatrists to
assist respondents in mental health retention
hearings, the court applies the Sosna relation
back doctrine where the named plaintiff's
claim was mooted after the filing of a class
certification motion. "Of particular concern is
the potential ability of the defendant to
purposefully moot the named plaintiffs'
claims" otherwise. (1000) Moreover, the
"constant existence of a class of persons
suffering the deprivation" supports class
certification.

Environment/Federal Officials
and Prisons
Caldwell v. Quinlan, 729 F.Supp. 4 (D.D.C.
1990). Complaints of occasional exposure to
second-hand tobacco smoke did not state a
constitutional claim; the plaintiff was not
entitled to a completely smoke-free
environment.

AIDS
Doe V. Borough ofBarrington, 729 F.Supp.
376 (D.N.].1990). Disclosure of a person's
medical condition, especially exposure to or
infection with HIV, is disclosure of a "personal
matter" in violation of the constitutionally
protected right to privacy. Such disclosure
violates the rights of family members as well
as of the infected person. The government
must show a compelling interest to justify
disclosing such information.

Law Libraries and Law Books/
Protective Custody
Watson v. Norris, 729 F.Supp. 581 (M.D.Tenn.
1989).
Protective custody inmates could not go to
the law library but had to depend on a cell
delivery system and the assistance of "official"
jailhouse lawyers; the latter had sole discretion
whether to assist a particular inmate. "As a
THE NATIONAL PRISON PROJECT JOURNAL

I

matter of law, such a situation is obviously
unsatisfactory." (586) The plaintiff was
entitled to summary judgment on the inadequacy of court access, and defendants were
"enjoined from enforcing [their] policies" and
directed to come up with a proposed plan
within 30 days.

Crowding/Classification/Protection
from Inmate Assault
Vazquezv. Carver, 729 F.Supp.1063 (E.D.Pa.
1989). Defendants are enjoined to reduce a
county jail population from 420 to 310 (the
maximum number of permanent beds in the
jail) over a period of 45 days. The court cites
the facts that in double cells, a third inmate
was placed on a mattress on the floor, and lockin times are long; that other inmates are placed
in improvised housing in non-housing areas
with limited access to bathrooms; and that the
use of program areas for housing severely
limits available space for all inmates during
lock-out time in concluding that plaintiffs are
denied adequate shelter. The court also finds
that crowding has "increased the potential for
inmate violence, and that several recent
assaults may be directly attributable to the
present conditions...." (1067-68). The court also
finds that the risk of violence is increased by
the intermingling of general population and
segregation inmates, also made necessary by
crowding.
Publications/Social and Political
Expression/ Classification-Race
Thomas v. u.s. Secretary ofDefense, 730
F.Supp. 362 (D.Kan.1990). White inmates at the
u.s. Disciplinary Barracks were forbidden to
receive publications of the White Aryan
Resistance and similar organizations under a
regulation prohibiting material that
"communicates information designed to
encourage prisoners to disrupt the institution
by strikes, riots, racial or religious hatred." The
regulation is not unconstitutional on its face.
The court notes that "[w]itnesses were able to
point to particular portions in each publication
which could legitimately raise concerns
regarding the potential for racial or religious
confrontation" and concludes that defendants
"made a conscientious review" of the material.
(365)
The plaintiffs were denied the right to form
a "European Heritage Club" for white inmates
even though black and Hispanic inmates were
permitted to form such organizations. Prison
officials reasonably concluded that the latter
organizations "prOVide cultural support for
certain inmates and assist in inmate rehabilitation and are beneficial to mental health," and
the court defers to their conclusion that the
European Heritage Group "would not assist in
any of these areas." (366) This racial
discrimination claim is upheld under the
THE NATIONAL PRISON PROJECT JOURNAL

Religion-Practices-Beards, Hair,
Dress/Religion-Outside Organizations, Services Within Institution
Young v. Lane, 733 F.Supp. 1205 (N.D.Ill. 1990).
Prison officials' allegation that some Jewish
plaintiffs had been seen eating non-kosher
~t food did not mean that they were insincere in
Environment
",;(" their beliefs.
Doughty v. Board ofCounty Commissioners
Aban on wearing yarmulkes except inside
'i'
the cell and at religious services was
for County of Weld, Colo., 731 F.Supp. 423
"
(D.Colo.1989). The application to a jail of ~';;'
unconstitutional. Defendants' concerns for the
county-wide ban on smoking in public ., P
hiding of contraband and the display of gang
buildings did not violate the Constitution."the
affiliation were ivational, since inmates could
policy is not "punishment" because it is
wear baseball caIl~ (available in several colors)
reasonably related to the legitimate purposes
any time, and tf~e was no evidence of
security problems before 1987, when the ban
of protecting the rights and health of nonwas instituted.
smokers, eliminating fire hazards, and
The failure to reimburse Jewish rabbis for
providing for a clean living environment. The
travel expenses, while other religious leaders
evidence showed that designated smoking
areas are not a practical solution because the
were reimbursed, was unconstitutional.
The ban on inmate-led religious services was
jail's ventilation system is not adequate to
not unconstitutional because of the pOSSibility
evacuate cigarette smoke. Segregation of
of religious disputes and the use of religious
smokers from non-smokers is not practical
services for gang meetings. However, it would
because it would interfere with other
be a "satisfactory alternative" and "less
principles of classification.
restrictive" to let the services go forward with
a staff person present. This requirement is
Sanitation/Medical Care-Access to
included in the remedy ordered.
Medical Personnel, Medication,
Special Diets
Modification of Judgments/Crowding'
Kyle v. Allen, 732 F.Supp.1157 (S.D.Fla.1990).
Inmates of the Suffolk CountyJail v.
Allegations of overflowing toilets, spoiled
Kearney, 734 F.Supp. 561 (D.Mass.1990). This
food on the floors, denial of permission to
clean plaintiff's cell, blood on the walls, no
case was brought in 1971 and resolved in 1979
with a consent judgment requiring a new jail
ventilation, and bad odors stated a
with single occupancy cells, subsequently
constitutional claim.
modified to accommodate a state court order
Allegations that the plaintiff was not
to make the jail larger. The sheriff moved for
promptly taken to a doctor, was given
modification again to permit double-ceiling,
medication without an examination and was
based on "new and unforeseen" population
threatened when he refused to take it, and
growth and changes in the law regarding
that he did not receive the proper diet for his
ulcers, stated constitutional claims.
double-ceiling.
The modification is denied. Population
increases are neither new nor unforeseen,
Visiting/Equal Protection
having been an ongoing problem throughout
Doe v. Sparks, 733 F.Supp. 227 (W.D.Pa.1990).
the litigation. Bell v. Wolfish, decided a week
Prison policy limited visiting to members of
the immediate family and "common law
after the consent judgment was entered, "did
not directly overrule any legal interpretation
spouses or boy/girlfriend," excluding "boy/
on which the 1979 consent decree was based."
girlfriends" of the same sex. Visiting was
(564)
noncontact only.
The court notes that the First Circuit has
Under the federal constitution viewed in
adhered to the "grievous wrong/new and
isolation, gays can have no equal protection
unforeseen conditions" test of Swift. However,
rights because their conduct enjoys no
substantive protection. However, in Pennsyleven if it were to apply the more flexible
standard of other circuits (Le., the
vania, where the prohibition of consensual
homosexual conduct had been ruled to violate
Willowbrook standard), the modification
the state constitution, equal protection
would be inappropriate, because it "would
requires a rational relationship to a legitimate
violate one of the primary purposes of the
end for such distinctions. One rational
decree": to meet agreed-upon standards
purpose of the policy was to avoid identificaincluding a separate cell for each detainee,
tion and exploitation of gay inmates. The
always an important element of the relief.
other rational purpose was to discourage
Even if the proposed modifications would
homosexual activity in the jail.
comply with the Constitution, there is no basis
for modification. At 565:
"reasonableness" test. (The court could have
relied on prison officials' testimony that they
thought the plaintiffs wanted to start a racist
organization and not a study group, which
would probably have met the higher standard
of review applied to racial distinctions.)

I

FALL 1990 15

To permit relief on this basis would make
settlements in cases of this type worth very
little. It would undermine and discourage
settlement efforts in institutional cases ifa
defendant werepermitted to return to court
when terms earlier agreed to became more
burdensome than expected. It is the very
certainty andfinality ofa consent decree
approved bya court that induces
participation in it.

Personal Involvement and Supervisory Liability/Use of Force
Murray v. Koehler, 734 F.Supp. 605 (S.D.N.Y.
1990). The jail warden was dismissed from the
plaintiff's use of force case; the plaintiff then
sought to file an amended complaint naming
him again. He alleged that the warden was
immediately notified of the incident leading to
his beating and that he took no action to
ensure plaintiff's safety or adherence by the
officers to departmental rules, regulations or
procedures, "notwithstanding the Warden's
knowledge that officers in the facility have 'a
high record of physical abuse or excessive use
of force...against inmates, after an inmate has
been in an altercation with officers.''' (606)
Those allegations state a claim against the
Warden on a deliberate indifference theory.

AIDS
Welch v. Sheriff, Lubbock County, Tex., 734
F.Supp. 765 (N.D.Tex.1990).Jail officials did
not violate the plaintiff's rights by housing
him in the same cell as an apparently HIV
positive inmate. At 768: "Exposing inmates to
communicable disease may violate their
constitutional rights." But there is no evidence
of any activities that could have posed a
serious risk of AIDS transmission between the
plaintiff and the other prisoner.

Searches-Person-Prisoners/Administrative Segregation/Damages/Jury
Instructions/Qualified Immunity
Wetmore v. Gardner, 735 F.Supp. 974
(E.D.Wash.1990). Prison officials subjected
every inmate transferred to an "Intensive
Management Unit" to a digital rectal cavity
probe search without cause. Prisoners alleged
they were routinely taunted by search and
escort officers, e.g., "Today, you meet Mr. Big
Finger." The prisoners were chained during
the search and it was done in full view of
numerous officers and sometimes a video
camera. No contraband was ever found in the
searches. Ajury found defendants liable and
awarded $1.00 in damages against several
defendants. Defendants were not entitled to
qualified immunity, since it was clearly
established that such intrusive searches
required a rational relationship to a legitimate
penological purpose.

16 FALL 1990

Indexto Articles
Note: In Spring 1990, the NPPJOURNA~
began using a volume-numbering system{
In the index below, articles from issues:7;
prior to Spring 1990 list issue and page' f
numbers only (i.e., 3/2). Articles from'the
Spring 1990 issue onward list volum~:;
issue and page numbers (i.e" Vol. 5/2/6).

No uniformity evident in corrections
policies on AIDS
21/14
Prisoners form AIDS education,
counseling self-help groups
21/14
States move toward mainstreaming
HIV-infected prisoners
22/18
Mandatory ~DS testing on the rise
,.•J
22/18
Studies show voluntary AIDS testing
more effective
22/18
Not all states provide drugs to prisoners
with AIDS
22/18
Review of Freudenberg's book on AIDS
prevention and education Vol. 5/2/17
AIDS education program for women at
Rikers Island
Vol. 5/3/18
ALABAMA
Conrad: an expert's view of litigation
and the Alabama case
8/12
Former NPP lawyer remembers the
Alabama case
13/8
Nagel: reflections of an expert witness'
13/13
Alabama case challenges AIDS policies
17/8
Alabama prison-monitoring committee
folds
20/1
Alabama changes policy on detaining
juveniles in adult jails
Vol. 5/2/6
ALTERNATIVES TO INCARCERATION
Surveys reveal support for alternative
sentencing
9/1
Examining community service
alternatives
10/13
Prison not always the answer for
female offenders
10/11
Alternatives only option for crowded
D.C. system
11/13
Alternative programs for women are
few and far between
12/9
Imprisoned mothers face extra
hardships
14/1
Involving victims and offenders in the
sentencing process
14/9
NPP, local ACLU obtain agreement in
Maryland jail case
15/13
Sentencing planning services, guidelines encourage alternatives
18/1
Jail litigation stops construction,
encourages alternatives
18/11
Alternatives play role in Washington
prison population decrease
19/1
,~

·A·
ACCESS TO THE COURTS
Mecklenburg Correctional Center
obstructs lawyer access
3/2
Florida opens death penalty appeals
office
7/1
The serious shortage of death penalty
12/1
lawyers
ADMINISTRATIVE SEGREGATION
Ad. seg. conditions in Arizona State
Prison challenged
1/3
Settlement reached in Arizona case 5/4
AIDS (Acquired Immunodefidency Syndrome)
NPP gathers the facts on AIDS in
prison
6/1
Chart: Results of AIDS in prison survey
(1985)
6/4
Medical expert cites problems in AIDS
screening
6/5
Balanced response needed to AIDS in
prison
7/1
AIDS policies raise civil liberties
concerns
10/10
NPP establishes AIDS Project
11/16
NPP releases AIDS Bibliography 12/13
Correctional health care: past and
future
13/29
Astudy of New York inmates with
AIDS
15/7
NPP gathers statistics on AIDS in
prison
16/5
Chart: Results of AIDS in prison survey
(1988)
16/6
NPP hires AIDS project coordinator
16/14
Alabama case challenges AIDS policies
17/8
NPP releases three AIDS publications
17/26
Abrief history of AIDS in prison 19/13
NPP interviews Billy S, Jones
20/14
Spanish version of NPP AIDS booklet
available
20/15

THE NATIONAL PRISON PROJECT JOURNAL

Citizen participation in corrections,
community programs
20/12
Alook at electronic monitoring in use
and history
21/5
ACLU demands trigger change,
alternatives in Hawaii juvenile system
Vol. 5/2/5
AMERICAN CIVIL LIBERTIES UNION

ACLU opens two death penalty centers
in South
7/7
Calif. ACLU opens Women Prisoners'
Rights Project
7/10
ACLU of Montana inspects Montana
jails
10/9
ACLU Handbook, The Rights ofPrisonersrevised
15/14
ARIAS V. WAINWRIGHT

NPP lawsuit challenges conditions in
Florida jails
3/1
ARIZONA

Parties move toward settlement in
Black
1/3
Revived settlement halts trial in Black

5/4
Alighter view of the Arizona case 5/5
ATTICA

Remembering the Attica uprising 13/5
NPP lawyer's work rooted in New York
litigation and Attica
16/12
AUTHORS
Aiyetoro, Adjoa A.

"Vestiges of Slavery: Racism in
Sentencing"
"Bureau Continues Totalitarian
Measures at Marion"

"15 Years of Prison Litigation: What Has
11/6

Barbaret, Rosemary

"Political Fallout Means Fewer
Furloughs"

It Accomplished?"

19/10

"Imprisoned Mothers Face Extra
Hardships"

14/1 '..

';i

Bell,james

.. ";

U8

Bonnyman, Gordon

"Recent Federal Court Orders Spur
Tennessee Toward Prison Reform" 8/1

2/12

21/9,22/9, Vol. 5/2/9, 5/3/10

5/8

(with Olinda Moyd)
'''Tomorrow's Neighbors' Celebrate
NAACP Inmate Chapter"
18/13

Brantley, Robert L.

13/22
"Can Contract Care Cure Prison Health
Ailments?"
22/5
Andersen, Erik

"Denmark's Radical Approach to SuperMax Yields Success"
6/8
Bagdikian, Ben H.

"Media Treat Crimes As Isolated,
Random Events"
13/31
Baird,Katy

"Death Penalty Law Still Tolerates
Inequities"
14/8
THE NATIONAL PRISON PROJEG JOURNAL

"Book Review: Death Work: A Study of
the Modern Execution Process by Robert
Johnson"
Vol. 5/3/16

"Kids in Adult Jails: Still a Problem in I"
1990"
Vol. 5/2//1 Cade,julia
"No More Quick Options for District of
Bernat, Betsy
,,'~'
"How Some Folks Do It In the Lone St!t
Columbia"
11/13
State"
"Lack of Res0l1'!ces No Defense for
"Chock Full of Nuts"
2/10
Constitutional)Violations"
11/14
"ABA Funds Death Penalty Project"
"How the West Was Won, Part II" 5/5
"Hold Your Nose! NPP Examines the
12/8
"Prisoners With AIDS in New York Live
Diet Loaf"
8/10
Half As Long As Those on Outside"
"Fourth Circuit Upholds Lower Court
Order in South Carolina"
11/13
(with Jan Elvin)
15/7
"Another Day, Another Dead Roach In
"Machine Administers Fatal Injection"
the Mail"
13/35
17/4
"Court Denounces Practices at Lexing"NPP Lawyer Ed Koren: Attica Started It
ton Control Unit"
17/19
All"
16/12
"Dramatic Rise in Numbers of Elderly
"NPP Status Report: The Courts and the
Prisoners Means Special Care, Increased
Prisons" (1990)
22/7
Costs"
20/9 Clements, Carl B.
"Early Prison Reforms Give Way to
"How to Evaluate Offender Needs
Assessment"
18/1
Present-Day Crowding"
Vol. 5/3/16

"Case Law Report"

'justice Department Retreats: The
Michigan Case"
1/1
'judge Halts Meddling with Access to
Clients"
3/2
"Violations in South Dakota Prison Lead
to Lawsuit"
4/6
"u.s. v. MicMgan. An Update from the
Battlefield"
12/8
"Prisoners' Lawyers Face Critical Issues"

13/5

"Remembering Attica"
Burr, Richard

Boston,john

Alexander, Elizabeth

Burns, Haywood

Barry, Ellen

Breed, Allen

"Special Masters: Debate Needed on Role
of Masters in Litigation"
13/15
Bright, Stephen B.

'judicial System Inconsistent in Doling
Out Death"
6/12
Bronstein, Alvinj.

"Opening Remarks"
1/2
"Court Says Hands Off on Contact Visits
and Cell Privacy"
1/9
"The Legal Implications of
Privatization"
2/1
"Rhode Island Prisons Changing After
Seven-Year Litigation Effort"
3/1
"Super-Max Prisons Have Potential for
Unnecessary Pain and Suffering" 4/1
"Neglect of Prisons Reaps High Costs for
Society"
7/12
"Sweeping New Order in Rhode Island
Case Promises Further Relief"
8/5

Cohen, Robert L., M.D.

"Medical Expert Views Potential for
Abuse in AIDS Screening"
6/5
Conrad,john

"An Expert Reflects on the Changing
Face of Prison Litigation"
8/12
Curtis, Dennis

"The Reform of Federal Sentencing and
Parole Laws"
13/21
Dorsey, L.C.

"The Death Penalty is Still Wrong" 3/8
Dubler, Nancy

"Medical Care: Past and Future"

13/29

Elvin,jan

"Private Firms Cash in on Crime" 1/6
"Private Prison Plans Dropped by
Buckingham"
6/11
"Florida Death Penalty Appeals Office
Opens"
7/1
"Oklahoma Prisoner Earns Place in
History: The Story of Battle v.
Anderson"
10/1
"Where Are The Lawyers?"
12/1
"NPP Celebrates 15 Years with Memories
of Past, Hope for Future"
14/11
"Prisoners With AIDS in New York Live
Half As Long As Those on Outside"
(with Julia Cade)
15/7
"Washington State's Prisoner Numbers
Stabilize as National Rate Soars" 19/1
FAll1990 17

"Doubts Raised in Virginia Death Row
Prisoner Case"
22/1
Fathi, David (with Mark Lopez)
"The Lost Meaning of Whitley v. Albers'
Vol. 5/3/3
Flittie, Roger G.
"The Class Representative: APersonal
Experience"
13/19
Geballe, Shelley (with Martha Stone)
"The New Focus on Medical Care Issues
in Women's Prison Cases"
15/1
Giarratano,Joseph
"Prison Reform Viewed From the
Inside"
13/18
Goering, Susan (with Claudia Wright)
"Maryland: Litigation Can Stop Unnecessary Jail Building"
18/11
Goldberg,Judy (with Nadine Marsh)
"Ex-Offenders Find Doors Closed On
Voting Rights"
3/3
Goldstein, David B.
"Supreme Court Summary"
14/6
Gostin, Larry
"AIDS in Prison: AIDS Policies Raise
Civil Liberties Concerns"
10/10
Greenspan,Judy
"NPP Gathers Statistics on AIDS in
Prison"
16/5
"Minnesota's Newest Prison Provides
Humane Environment"
17/16
AIDS Update 19/13,20/14,21/14,22/18,
Vol. 5/2/17, 5/3/18
Harris, M. Kay
"Exploring the Connections Between
Feminism and Justice"
13/33
Immarigeon, Russ
"Community Service Sentences Pose
Problems, Show Potential"
10/13
"Women in Prison: Is Locking Them Up
the Only Answer?"
11/1
"Few Diversion Programs Offered
Female Otfenders"
12/9
"Victim and Offender Participation
Important to Criminal Sentencing
Process"
14/9
"Critics Urge Caution in Interpreting
Justice Department Study"
15/10
"Despite New Laws,Juveniles Still
Locked in Adult Jails"
17/21
"Sentencing: Guidelines and Planning
Services Foster Wider Use of
Alternatives"
18/1
"Four States Study Policies Affecting
Women Offenders"
19/4
"Electronic Monitoring: Humane
Alternative or Just Another 'Gizmo'?

21/5
18 FALL 1990

"Instead of Death: Alternatives to
Capital Punishment"
Vol. 5/3/6
Janger, Ted
"Expert Negotiation Brings New
Approach to Prison Litigation in
Hawaii"
Jurado, Rebecca
"California Project Stands Up For
Women in Prison"
.:7/10
Keller, OJ.
;'
"Cuban Detainees Face Further Frustration, Unfair Treatment"
17/24
Kluger, Mark
"South Carolina Settlement Limits
Population, Enforces Standards"
5/1
Knowles, Ralph
"Strategies For Future Prison Litigation"

2/1
"Monitoring Committee on Prisons in
Alabama Folds; Court Gives Up
Jurisdiction"
20/1
Koren, Edward I.
"Dramatic Change in Oklahoma
Juvenile Justice System"
2/3
Lancaster,Jennie
"Corrections Staff Are 'Silent Actors' in
Executions"
17/6
Lasker,Judge Morris E.
"The Tombs, On Reflection: Prison
Litigation: Many Years Toward Compliance"
11/9
Levine,Jody
"Private Prison Planned on Toxic Waste
Site"
5/10
Lindsay, Margot C.
"Citizen Involvement Can Play Key Role
in Corrections"
20/12
Lopez, MarkJ.
"Decisions in Safley and O'LoneUndo
Years of Progress"
15/8
"New Mexico Seeks to Elude Obligations
of Consent Decree"
16/1
"Forced Drugging of Mentally III
Prisoners"
19/7
"Court Fines Rhode Island Officials
Over Non-Compliance"
21/1
"The Lost Meaning of Whitley v. Albers'
(with David Fathi)
Vol. 5/3/3
Macallair, Dan
"ACLU's Demands Trigger Change in
Hawaii's Juvenile System" Vol. 5/2/5
Marnell, Gunnar
"Swedes See U.S. Death Penalty as
Premeditated Killing"
4/9
Marsh, Nadine (with Judy Goldberg)
"Ex-Offenders Find Doors Closed on
Voting Rights"
3/3

Martino, Maria
"Georgia Study Reveals Racial Bias in
Sentencing"
20/8
McClymont, Mary E.
"Prison Litigation: Making Reform a
Reality, Part I"
1/8
"Prison Litigation..., Part II"
2/4
"Hard-Fought Settlement Reached in
Hawaii Case"
5/3
"Execution for Juvenile Crime Raises
Questions of International Law" 7/13
''.Jerry M: ~ttlement Reached in
10/12
Juvenile case"
Miles, M.D;, Steven H.
"Health Professionals and a Preventable
Death at Butner"
16/9
Millemann, Michael
"VAPrisoners Find Advocates in Early
Prison Reformers"
13/3
Morton, Chuck
"Resolved: High Schoolers Should Debate
Prison Overcrowding"
Vol. 5/2/15
Moyd, Olinda (with Robert 1. Brantley)
"'Tomorrow's Neighbors' Celebrate
NAACP Inmate Chapter"
18/13
Mushlin, Michael B.
"Rhodes v. Chapman Analyzed for
Effect on Prison Overcrowding" 14/4
Myers, Matthew L.
"The Alabama Case: 12 Years After
jamesv. Wallace'
13/8
Nagel, William G.
"Reflections of an Expert Witness" 13/13
Nathan, Vincent
"Lawsuits Fundamental to Prison
Reform"
13/16
Ney,Steven
"Statewide Attack on Florida Jails
Brings Improvement"
3/1
"Judge Bans Further Intake of Prisoners
at D.C. Jail"
5/6
"D.C. Pushes Panic Button in Jail
Population Crisis"
8/8
Novick, Steven A.
"Bitter Legal Combat Leads Oklahoma
Out of Dark Ages in Care of Juveniles"
Vol. 5/2/1
Ogletree, Charles J.
"Book Review: The Myth ofa Racist
CriminaljusticeSystem, by William
Wilbanks"
11/10
Ortega, Nancy
"AIDS Policy Tested in Alabama Prison
Case"
17/8
Presser, Stefan
"In Pennsylvania, 200 Years of Practice
Doesn't Make Perfect"
Vol. 5/3/1
THE NATIONAL PRISON PROJECT JOURNAL

Resnik,Judith
"The Limits of Parity in Prison" 13/26
Restrepo, 1. Felipe
"Weighing Privilege to Smoke Against
Rights of Non-Smokers"
12/12
Rosenthal, Liz
"Tax Reform Package Caught in
Catch-22"
1/12
Schwartz, Herman
"Prisoners' Rights Lawyers in VA and
NY Merge to Form NPP"
13/5
Start, Armond, M.D.
"Nor Will I Prescribe a Deadly Drug..."
17/3
Stone, Martha (with Shelley Geballe)
"The New Focus on Medical Care Issues
in Women's Prison Cases"
15/1
Sturm, Susan
"Special Masters Aid in Compliance
Efforts"
6/9
Taifa-Caldwell, Nkechi
"Muslims in Prison Seek Religious
Recognition"
8/3
Thorburn, M.D., Kim Marie
"Doctors' Involvement in Death Penalty
Creates Ethical Dilemma"
17/2
Tushnet, Mark
"Supreme Court Briefs"
8/7
Tushnet, Rebecca
"Resolved: High Schoolers Should Debate
Prison Overcrowding"
Vol. 5/2/15
Vaid, Urvashi
"Depo-Provera: Blessing or Curse?" 4/1
"NPP Gathers the Facts on AIDS in
Prison"
6/1
"Balanced Response Needed to AIDS in
Prison"
7/1
Verstraete, Greye
')ail Inspections Trigger Improvements"
10/9
Walker,Sam
"The Beginning: Sixties Civil Rights
Gave Momentllm to Prisoners' Rights"
13/2
Wood,Frank
"Oak Park Heights Sets High Super-Max
Standards"
4/3
Wright, Claudia
"Parties Move Toward Settlement in
Arizona"
1/3
"Revived Settlement Halts Trial In
BlacM'

5/4

"Expert Witnesses: Expanding Their
Role in Prison Cases"
13/12
"Maryland: Litigation Can Stop Unnecessary Jail Building"
(with Susan Goering)
18/11
THE NATIONAL PRISON PROJECT JOURNAL

..B·

New litigation targets medical care in
women's prisons
15/1
(formerly Baraldini v. Meese)
CAPITAL COLLATERAL
Court denounces FCI-Lexington Control
REPRESENTATIVE (CCR)
Unit
17/19
Florida opens death penalty appeals
BATTLE v. ANDERSON
•
office
7/1
Looking back at a landmark case: Battle1 CCR handles death pen. appeals 12/6
v. Anderson
10/(7 CASE LAW REPORT
BEHAVIOR MODIFICATION PROGRAMS)
Areview of recent federal court
Program challenged in Arizona State ;+"
decisions affecting corrections and
prisoners' rights
Prisontt3
Arizona settlement addresses behavior
21/9~22/9, Vol. 5/2/9, 5/3/10
mod. program
··5/4 CELL SEARCHES3
"
BELL V. WOLFISH
Searches chanenged
in Block v.
Prisoners' lawyers face critical issues
Rutherford
1/9
13/22 CITIZENS GROUPS
BLACK V. RICKETTS
Citizen participation in corrections
Ad. seg. conditions challenged in
20/12
Arizona lawsuit
1/3 CLASSIFICATION
Revived settlement halts trial in
Assessing offender needs
18/1
Arizona
5/4 COMPLIANCE
Alighter look at the Arizona case 5/5
Prison litigation: making reform a
BLOCK V. RUTHERFORD
1/8,2/1
reality (2 parts)
Case argues rights of pretrial detainees
Special masters aid in compliance 6/9
Litigation and compliance: judge
1/9
BODY CAVITY SEARCHES
discusses "Tombs" case
11/9
Searches challenged at Arizona State
Role of special masters: an issue ripe for'
Prison
1/3
debate
13/15
Arizona settlement limits use of body
New Mexico seeks to elude obligations
cavity searches
5/4
of consent decree
16/1
BROWN V. MURRAY
Alabama prison-monitoring committee
Lawyer access problems at
folds
20/1
Mecklenburg Correctional Center 3/2
Court fines Rhode Island officials over
Inmate's view of prison reform through
noncompliance
21/1
litigation
13/18
Case brings reform, compliance struggle
BUREAU OF PRISONS
in Oklahoma juvenile system Vol. 5/2/1
Bureau imposes totalitarian conditions
CONSENT DECREES
at Marion
5/8
Minimal decree in u.s. v. Michigan
Cubans detained in Atlanta Federal
challenged by NPP
1/1
Penitentiary
9/1
NPP's Status Report on the courts and
Court denounces FCI-Lexington Control
the prisons
3/10,13/24, 18/7, 22/7
Unit
17/19
S.C. decree limits population, enforces
Cuban detainees still suffering unfair
standards
5/1
treatment
17/24
Consent decree entered in Hawaii
BUSH v. VITERNA
lawsuit
5/3
Unusual practices found in Texas jails 1/8
Court orders S.C. to comply with decree
9/4
Appeals court upholds pop. cap in South
CALIFORNIA
Carolina case
11/13
Calif. ACLU starts Women Prisoners'
New Mexico seeks to elude obligations
Rights Project
7/10
of consent decree
16/1
CALIFORNIA INSTITUTION FOR WOMEN CONTACT VISITS
Conditions challenged by Women
Contact visits for pretrial detainees
Prisoners' Rights Project
7/10
issue in Block
1/9
Imprisoned mothers face extra hardCONTEMPT
ships
14/1
Prison litigation: making reform a
reality
2/4
BARALDINI V. THORNBURGH

·c·

FALL 1990 19

CRIME

Understanding the complexities of
crime statistics
9/6
Media often promotes vicious criminal
justice cycle
13/31
BJS public opinion study requires
cautious interpretation
15/10
CUBAN DETAINEES

Cubans detained in Atlanta Federal
Penitentiary
9/1
Cuban detainees still suffering unfair
treatment
17/24

DELAWARE

Delaware among four states studying
women offender policies
19/4
DENMARK

Danish super-max far cry from U.S.
counterparts
6~8

.;t

DEPO-PROVERA

Depo-provera treatment raises seri0\l,S
questions
'4/1
DIET

.

Right to religious diet sought by.~
Muslims in prison
8/3

DIET LOAF

-DDANIELS V. WILLIAMS

Supreme Court decides negligence case
8/7
DEATH PENALTY

Death penalty information packet 3/6
Death penalty: a personal view
3/8
Swedes confused by U.S. death
4/9
penalty
Courts inconsistent in issuing death
penalty
6/12
Florida opens death penalty appeals
office
7/1
Model offices for centralized capital
appeals
7/6
ACLU opens two death penalty centers
in South
7/7
Jury override can backfire into death
sentence
7/8
Execution for juvenile crime challenged
7/13
The serious shortage of death penalty
lawyers
12/1
Trial-level errors in capital cases 12/4
Florida's CCR handles death penalty
appeals
12/6
ABA funds death penalty project 12/8
Death penalty law still tolerates
inequities.
14/8
Executions pose ethical dilemma for
doctors
17/2
Doctors' role in executions violates
Hippocratic Oath
17/3
New machine can administer lethal
injection
17/4
Corrections staff "silent actors" in
17/6
execution
Is Virginia death row inmate,Joe
Giarratano, innocent?
22/1
Instead of death: alternatives to the
death penalty
Vol. 5/3/6
Richard Burr reviews Robert Johnson's
Death Work
Vol. 5/3/16

20 FALL 1990

"Diet loaf" one issue challenged in
Arizona case
1/3
"Diet loaf" outlawed in Arizona
settlement
5/4
Alighter look at the diet loaf
8/10
DISTRICT OF COLUMBIA

Judge sets population cap at D.C. Jail
5/6
D.C. panics over jail population crisis
8/8
Settlement reached in D.C. juvenile case
10/12
Alternatives only option for crowded
D.C. system
11/13
DRUGS

Forcing psychotropic drugs on mentally
19/7

ill prisoners
DURAN V. ANAYA

Budget cuts don't excuse violations,
says court
11/14
New Mexico seeks to elude obligations
of consent decree
16/1

-EEIGHTH AMENDMENT

Courts stretch meaning of Whitley v.
Albers decision
Vol. 5/3/3
ELDERLY PRISONERS

Rise in elderly prison population brings
new problems
20/9
ELECTRONIC MONITORING

Alook at electronic monitoring in use
and history
21/5
ELISA TEST

AIDS in prison: use of ELISA test
6/1
Medical expert cites problems in AIDS
screening
6/5
AIDS screening policies and the ELISA
test
7/1
EXPERTS

Expert panel negotiates settlement in
Hawaii
6/6
Conrad: an expert's view of litigation
8/12
and the Alabama case

The expanding role of experts in prison
cases
13/12
Nagel: reflections of an expert witness
13/13

-FFEDERAL BUREAU OF PRISONS

See BUREAU OF PRISONS
FEMINISM

The connections between feminism and
justice
13/33
FIRST AMENpMENT

Prisoners'·iltwyers face critical issues
~.
13/22
Supreme Court decisions affect First
Amendment rights
14/6
Supreme Court decisions in O'Lone and
Safley
15/8
FLITTIE V. HILLARD

NPP lawsuit filed in South Dakota 4/6
Inmate describes experience as a class
representative
13/19
FLORIDA

NPP files state-wide suit against Florida
jails
3/1
Florida opens death penalty appeals
office
'-;/1
Florida's CCR handles death penalty
appeals
12/6
FURLOUGHS

Presidential campaign sets off decline
in prison furloughs
19/10

-GGEORGIA

Georgia study reveals racial bias in
sentencing
20/8
GRUBBS V. BRADLEY

Court orders spur prison reform in
Tennessee
8/1
Letter to editor: Special Master's role in
Tennessee case
8/2

-HHANDGUNS

Report studies effects of Canadian gun
control legislation
19/14
HARRIS V. THIGPEN

Alabama case challenges AIDS policies
17/8
HAWAII

Settlement reached in Spear v. Ariyoshi
5/3
Expert panel negotiates settlement in
Hawaii
6/6
ACLU demands trigger change in
Hawaii juvenile system
Vol. 5/2/5
THE NATIONAL PRISON PROJEO JOURNAL

HENDRICKSON V. WELCH

NPP, local ACLU obtain agreement in
Maryland jail case
15/13

·1·
ILLINOIS
Lockdown conditions at Marion
investigated
5/8
Illinois among four states studying
women offender policies
19/4
INMATE MARRIAGES
Supreme Court strikes down marriage
restrictions
14/6

.J.
JAILS
National Jail Project of ACLU underway
1/1
Unusual practices found in Texas jails
1/8
Pretrial detainee rights at issue in Block
v. Rutherford
1/9
Women in jails have special
problems
2/9
Florida jail conditions challenged in
Arias v. Wainwright
3/1
Jail Coalition information packets
3/9,4/2
Jail Coalition closes doors, reorganizes
efforts
4/2
Judge sets population cap at D.C. Jail 5/6
National Jail Project releases Jail Status
Report
5/12
D.C. panics over jail population crisis
8/8
ACLU inspects Montana jails
10/9
NIC studies jail suicides
11/12
NPP, local ACLU obtain agreement in
Maryland jail case
15/13
Removing juveniles from adult jails and
lock-ups
17/21
Jail litigation stops construction,
encourages aiternatives
18/11
Jail suicide study, training curriculum
released
18/14
Many juveniles still detained in adult
jails in 1990
Vol. 5/2/6
JAIL COALITION (National Coalition for
Jail Reform)
Information packets available
3/9
Coalition closes, reorganizes efforts
4/2
Removing juveniles from adult jails and
lock-ups
17/21
JERRYM. V. DISTRICTOFCOLUMBIA

Settlement reached in D.C. juvenile case
10/12
THE NATIONAL PRISON PROJECT JOURNAL

JUVENILES
LITIGATION
Okla. juvenile system challenged in
NPP Highlights
2/9,3/12,4/12,5/12,
Terry D. v. Rader
2/3
6/16,7/16,8/14, 9/16,10/16,11/16,
Execution for juvenile crime challenged
12/16,14/16,15/16,16/16,17/28,18/16,
7/12
19/16,20/16,21/16,22/20, Vol. 5/2/20,
Settlement reached in D.C. juvenile case",
5/3/20
10/121
NPP's Status Report on the courts and
Removing juveniles from adult jails an~~
the prisons
3/10,13/24, 18/7, 22/7
lock-ups
17/21 ,
Strategies for future prison litigation
Tough case leads to reform in Okla- ~~(
(2 parts)
1/8,2/1
An expert reflects on changes in prison
homa juvenile system
Vol. 5!JY1
ACLU demands trigger change in
litigation
\
8/12
Evaluating 15t9'ears of prison litigation
Hawaii juvenile system
Vol. 5/2/5
.'
11/6
Many juveniles still detained in adult
Litigation and compliance: judge
jails in 1990
Vol. 5/2/6
Rights of juveniles: significant cases
discusses "Tombs" example
11/9
Judicial commentary on prison cases
Vol. 5/2/7
Forum held on disproportionate
13/2
minority youth incarceration rates
60s civil rights movement a catalyst for
prisoners'rights
13/2
Vol. 5/2/17
Report shows high number of girls held
The expanding role of experts in prison
as status offenders
Vol. 5/2/18
cases
13/12
NCCD releases report on communityLawsuits fundamental to prison reform
based sanctions for juveniles Vol. 5/2/1
13/16
An inmate's view of prison reform
through litigation
13/18.
·K·
KENTUCKY
Inmate describes experience as class
Court denounces FCI-Lexington Control
representative
13/19
The increasing cost, complexity of
Unit
17/19
KOREN, EDWARD I.
prison litigation
13/22
NPP lawyer discusses 18 years in
15 years of prison litigation: a
prisoners'rights
16/12
timeline
13/26
Alabama prison-monitoring committee
folds
20/1
·L·
LEGAL ACCESS
Case Law Report: recent federal court
Lawyer access problems at
decisions concerning corrections and
Mecklenburg Correctional Center 3/2
prisoners' rights
Florida opens death penalty appeals
21/9,22/9, Vol. 5/2/9, 5/3/10
Courts stretch meaning of Whitley v.
office
7/1
The serious shortage of death penalty
Albers decision
Vol. 5/3/3
lawyers
12/1
LEGISLATION
·M·
Texas legislature writes prison reform
MAGID,JUDITH
package
1/12
In Memory
5/2
MARION, ILL., U.S. PENITENTIARY
LETHAL INJECTION
Executions pose ethical dilemma for
Lockdown conditions at Marion
doctors
17/2
investigated
5/8
Doctors' role in executions violates
Examining the question of super-max
Hippocratic Oath
17/3
prisons
4/1
New machine can administer lethal
MARYLAND
NPP, local ACLU obtain agreement in
injection
17/4
LEWISBURG PRISON PROJECT
Maryland jail case
15/13
LPP distributes information booklets
Jail litigation stops construction,
encourages alternatives
18/11
12/15
NAACP branch established at Maryland
Penitentiary
18/13

FAll1990 21

Maryland among four states studying
women offender policies
19/4
MASSACHUSETTS

Massachusetts among four states
studying women offender policies 19/4
MAXIMUM SECURITY PRISONS

Examining the question of super-max
prisons
4/1
Minnesota facility sets high super-max
standards
4/3
Lockdown conditions investigated at
Marion Federal Pen.
5/8
Danish super-max differs from U.S.
counterparts
6/8
Court denounces FCI-Lexington Control
Unit
17/19
MEDIA

Media often promotes vicious criminal
justice cycle
13/31
MEDICAL CARE

See also: AIDS
NCCHC publishes health care standards
11/12
Correctional health care: past and
future
13/29
Imprisoned mothers face extra hardships
14/1
New litigation targets medical care in
women's prisons
15/1
Health professionals and the mistreatment of prisoners
16/9
Executions pose ethical dilemma for
doctors
17/2
Doctors' role in executions violates
Hippocratic Oath
17/3
New machine can administer lethal
injection
17/4
Contract medical care generates
concerns, varied opinions
22/5
MENTAL HEALTH CARE

Forcing psychotropic drugs on mentally
ill prisone.rs
19/7
MICHIGAN

NPP challenges Justice Dept. consent
decree in Michigan
1/1
An update on the Michigan case 12/8
MINNESOTA

MONTANA

10/9

MOUNDSVILLE, W. V., PENITENTIARY

Disturbance sparked by uncivilized
conditions
7/13

22

FALL 1990

Muslims in prison seek religious
recognition
8/3
Supreme Court decides O'Lone v. Estate
ofShabazz
14/6
Effects of Supreme Court decision in l'
O'Lone

154'~

-NNATION OF ISLAM

See: MUSLIMS
NATL. ASSN. FOR THE ADVANCEMENT
OF COLORED PEOPLE (NAACP)

NAACP branch established at Maryland
Penitentiary
18/13
NATIONAL INSTITUTE OF CORRECTIONS

NIC to study jail suicides
NIC publishes research series

11/12
16/14

NATIONAL JAIL PROJECT OF THE ACLU

National Jail Project of the ACLU
underway
1/1
Jail Project releases Jail Status Report
5/12
NATIONAL PRISON PROJECT OF THE
ACLU

NPP's Status Report on the courts and
the prisons
3/10, 13/24, 18/7, 22/7
New brochure on NPP available 10/16
NPP staff changes
11/12,12/13,14/14,
16/14
NPP establishes AIDS Project
11/16
NPP releases AIDS Bibliography 12/13
60s civil rights movement a catalyst for
prisoners'rights
13/2
The founding of the NPP
13/5
The NPP lawyers: who are they? 13/12
Law interns recall favorite moments
at NPP
13/14
Catching up with former interns 13/30
NPP staff, past and present
13/34
An inside look at the Prison Project 13/35
NPP marks 15 years with conference,
celebration
14/11
NPP lawyer discusses 18 years in prison
litigation
16/12
ACLU Handbook, The Rights ofPrisonersrevised

Oak Park Heights sets high standards
for super-max facilities
4/3
New Minnesota women's prison is
humane
17/16
ACLU inspects Montana jails

MUSLIMS

15/14

NPP Executive Director, Alvin Bronstein,
wins MacArthur Award
21/14
NEGLIGENCE

Supreme Court decides Daniels and
Davidson
NELSON V. LEEKE
See: PL YLER V. LEEKE
NEW MEXICO

8/7

Attorney general comments on Santa Fe
prison riot
7/13

Budget cuts don't excuse violations,
says court
11/14
New Mexico seeks to elude obligations
of consent decree
16/1
NEW YORK

Examining community service alternatives: Bronx program
10/13
Litigation and compliance: judge
discusses "Tombs" example
11/9
Remembering the Attica uprising 13/5
Astudy of New York inmates with
AIDS'
15/7
NPP lawy~s work rooted in New York
litigation and Attica
16/12
NORTH CAROLINA

Examining community service alternatives: Repay, Inc.
10/13
Health professionals and a preventable
death at Butner
16/9
BOP response to death of Vinson Harris
16/11
Corrections staff involvement in North
Carolina execution
17/6

-0OAK PARK HEIGHTS

Minnesota super-max facility sets high
standards
4/3
OKLAHOMA

Juvenile system challenged in Terry D.
v.Rader

2/3

Looking back at landmark case: Battle
v. Anderson

10/1

Tough case leads to reform in Oklahoma juvenile system
Vol. 5/2/1
O'LONE V. ESTATE OFSHABAZZ
Effect of Supreme Court decisions in
O'Lone and Safley
15/8
OVERCROWDING

NPP's Status Report on the courts and
the prisons
3/10,13/24,18/7,22/7
S.c. settlement limits population,
enforces standards
5/1
Hawaii settlement sets populations caps
5/3
Judge sets population cap at D.C.Jail 5/6
Population reduction program in
Tennessee
8/1
Population limits imposed by court in
Rhode Island
8/5
D.C. panics over jail population crisis
8/8
Court orders S.C. to comply with
population limits
9/4
Effect of 15 years of litigation on
overcrowding
11/6

THE NATIONAL PRISON PROJECT JOURNAL

Appeals court upholds pop. cap in South
Carolina case
11/13

Judge discusses litigation and the
"Tombs" case
11/9
Appeals court upholds pop. cap in South
Carolina case
11/13
Lawsuits fundamental to prison reform

POLITICAL PRISONERS

13/16

PRETRIAL DETAINEES

Prisoners' lawyers face critical issues 13/22
The effect of Rhodes v. Chapman on
overcrowding
14/4
Agreement in Maryland jail case
addresses overcrowding
15/13
New books on overcrowding released

18/14

Court denounces FCI-Lexington Control
Unit
17/19
~,

Cell searches, contact visits argued in ,}
Block
1/~~PRISONER CORRESPONDENCE

--.,

Supreme Court decides Turner v. Safiii,

14J6
Effect of Safleyon inmate-to-inmate
correspondence
15/8

High school students debate prison
overcrowding
Vol. 5/2/15
Ahigh school debater discusses the
overcrowding debate
Vol. 5/2/15
Pennsylvania still has prison problems
after 200 years
Vol. 5/3/1

PRISONER VISITATION AND SUPPORT
(PVS)

-p-

PRIVATIZATION

PVS provides prisoners link to outside
world
5/2
PRIVACY

Court says "hands off" in Block decision

1/9
PALMIGIANO V. DiPRETE

(formerly Palmigiano v. Garrahy)
Improvements evident in Rhode Island
prisons
3/1
Order promises further relief in Rhode
Island prisons
8/5
Court fines Rhode Island officials over
noncompliance
21/1
PAT SEARCHES

Muslims contest pat searches by female
guards
8/3

Private firms venture into prison
business
1/6
Legal implications of privatization 2/1
Private prison planned on toxic waste
site
5/10
Private prison plans dropped at toxic
waste site
6/11
Correctional health care: past and
future
13/29
Contract medical care generates
concerns, varied opinions
22/5
PROCUNIER V. MARTINEZ

PAROLE

Reforming federal sentencing and
parole laws
13/21
Supreme Court decides Board of
Pardonsv.Allen
14/6

Supreme Court rejects Martinez
standards in Turner
14/6
Martinez and the effect of the Turner
decision
15/8
PSYCHOTROPIC DRUGS

PENITENTIARY

Anniversary of penitentiary is springboard for justice project
Vol. 5/3/5
Penitentiary of today a far cry from
solitary confinement days Vol. 5/3/16
PENNSYLVANIA

Private prison planned on toxic waste
site in Pa.
5/10
Plans dropped for private prison on
toxic waste site
6/11
Pennsylvania still has prison problems
after 200 years
Vol. 5/3/1
Penitentiary of today a far cry from
original
Vol. 5/3/16
PLYLER V.LEEKE(formerly Nelson v.
Leeke)
S.C. settlement limits population,
enforces standards
5/1
Court orders S.C. to comply with decree

9/4
THE NATIONAL PRISON PROJECT JOURNAL

Forcing psychotropic drugs on mentally
ill prisoners
19/7
PUGH V. LOCKE

Conrad: Expert reflects on litigation
and the Alabama case
8/13
Former NPP lawyer remembers the
Alabama case
13/8
Nagel: reflections of an expert witness

13/13
Alabama prison-monitoring committee
folds
20/1

Review of Wilbanks' book on racism
and criminal justice
11/10
Remembering the Attica uprising 13/5
Alabama case exposed evidence of
racism
13/8
McClesky decision tolerates racial bias
in death penalty cases
14/8
Georgia study reveals racial bias in
sentencing
20/8
RELIGION

Muslims in prison seek religious
recognition ,
8/3
Supreme Couti decides O'Lone v. Estate
ofShabazz '
14/6
Effects of Supreme Court decision in
O'Lone
15/8
RHODE ISLAND

Litigation in Rhode Island brings
change
3/1
Order promises further relief in Rhode
Island prisons
8/5
Court fines Rhode Island officials over
noncompliance
21/1
RHODES V. CHAPMAN

Rhodesstill presents litigators with
critical issues
13/22.
AnalyZing the effects of Rhodes v.
Chapman
14/4

-5SENTENCING

Racism in sentencing extensive
problem
2/12
Sentencing Project publishes sentencing
directory
12/13
Reforming federal sentencing and
parole laws
13/21
Involving victims and offenders in the
sentencing process
14/9
BJS public opinion study requires
cautious interpretation
15/10
Sentencing Project publishes analysis of
NIJ study
15/14
Sentencing planning services, gUidelines encourage alternatives
18/1
Sentencing Project publishes sentencing
bibliography
18/15
Sentencing guidelines play role in
Washington prison population decrease

19/1

-RRACISM

Racism in sentencing extensive
problem
2/12
Battle revealed racial discrimination in
Oklahoma system
10/1

Georgia study reveals racial bias in
20/8
sentencing
Sentencing advocacy: alternatives to
the death penalty
Vol. 5/3/6
SETTLEMENT AGREEMENTS

Parties move toward settlement in
Arizona
12/3
FALL 1990 23

S.C. settlement limits population,
enforces standards
5/1
Hard-fought settlement reached in
Hawaii case
5/3
Revived settlement halts trial in
Arizona case
5/4
Expert panel negotiates settlement in
Hawaii
6/6
Settlement reached in D.C. juvenile case
10/12
SEX OFFENDERS
Depo-provera treatment raises questions
4/1
SMOKING
Smoking in prison: a question of rights
12/12
SOUTH CAROLINA
S.C. settlement limits population,
enforces standards
5/1
Execution in S.C. for juvenile crime
challenged
7/13
Court orders S.C. to comply with decree
9/4
Appeals court upholds pop. cap in South
Carolina case
11/13
SOUTH DAKOTA
NPP lawsuit challenges violations at
penitentiary
4/6
Inmate describes experience as a class
representative
13/19
SPEAR V. ARIYOSHI
Settlement reached in Hawaii case 5/3
Expert panel negotiates settlement in
Hawaii
6/6
SPECIAL MASTERS
Special masters aid in compliance 6/9
Special master appointed in Tennessee
8/1
Letter to editor: Special master's role in
Tennessee case
8/2
Judge discusses pros and cons of special
masters
11/9
qole of special masters: an issue ripe for
debate
13/15
STANDARDS
Health care standards published 11/12
SUICIDE
NIC to study jail suicides
11/12
Jail suicide study, training curriculum
released
18/14
SUPREME COURT, U.S.
Court says 'hands off' in Block v.
Rutherford

1/9

Court upholds death penalty for
juvenile crime
7/13
Recent prisoners' rights decisions by
Supreme Court
8/7
24

FALL 1990

Recent prisoners' rights decisions by
Supreme Court
14/6
Effect of Court's decisions in O'Lone
and Safley
15/8
SWEDEN
Swedes confused by U.S. death penalty""

4/9
',;.;'

Swedes enact animal treatment
legislation

-TTENNESSEE
Court orders spur prison reform in
Tennessee
8/1
Letter to editor: the Special Master's
role in Tennessee
8/2
TERRY D. V. RADER
Lawsuit challenges Oklahoma juvenile
system
2/3
Tough case leads to reform in Oklahoma juvenile system
Vol. 5/2/1
TEXAS
Unusual practices found in Texas jails
1/8
Legislature develops prison reform
package
1/12
TURNER V. SAFLEY
Effect of Supreme Court decisions in
O'Loneand Safley

15/8

-uU.S. V. MICHIGAN
NPP challenges Justice Dept. consent
decree
1/1
An update on the Michigan case 12/8
URINALYSIS
Urinalysis not always reliable
9/13

-yVICTIMS' RIGHTS
PACT publishes VORP Network News
12/15
Involving victims and offenders in the
sentencing process
14/9
U.S. Association for Victim-Offender
Mediation established
19/13
Victim services and alternatives to the
death penalty
Vol. 5/3/6
VIRGINIA
Lawyer access a problem at
Mecklenburg Correctional Center 3/2
Early prisoner advocacy efforts in
Virginia
13/3
Is death row inmate Joe Giarratano
innocent?
22/1

VOTING RIGHTS
Ex-offenders find barriers to voting
rights
3/3

-wWASHINGTON
Sentencing guidelines, reform effect
prison population decrease
19/1
Letter to editor on decrease in
Washington's prison population 22/18
WEST VIRGINIA
MoundsvillElldisturbance sparked by
uncivilizeqijonditions
7/12
WHITLEY V. ALBERS
Supreme Court decides use of force case
8/7
Courts stretch meaning of Whitley v.
Albers decision
Vol. 5/3/3
WOMEN
Women in jail have special problems
2/9
Calif. ACLU opens Women Prisoners'
Rights Project
7/10
Prison not always the answer for
female offenders
11/1
Alternative programs for women few.
and far between
12/9
Pursuing equal treatment for women in
prison
13/26
The connections between feminism and
justice
13/33
Imprisoned mothers face extra hardships
14/1
New litigation targets medical care in
women's prisons
15/1
New Minnesota women's prison is
humane
17/16
Court denounces FCI-Lexington Control
Unit
17/19
Four states study policies affecting
women offenders
19/4
Growing elderly prison population
includes women
20/9
Report shows high number of girls held
as status offenders
Vol. 5/2/18
AIDS education program for women at
Rikers Island
Vol. 5/3/18

THE NATIONAL PRISON PROJEG JOURNAL

Book Review

Last Rights: Thirteen Fatal Encounters with
the State's Justice, by Joseph B. Ingle;
'"c
.~
with forward by William Styron, Abinga..
-0
don Press, Nashville, TN. ($21.95)
c
o

n Last Rights, the Rev. Joe Ingle walks
the reader through his personal
journey into the death houses of the
South. Ingle, a United Church of Christ
minister, has served as the director of the
Southern Coalition on Jails and Prisons
since 1974. In that capacity he has made
it his life's work to visit every death row
in the South and befriend many men and
women facing execution.
His powerful book probes beyond the
statistics, rhetoric and other masks used
to justify and legitimize the violence of
capital punishment, and takes a personal
look at the death penalty process.
Through the eyes of the author the
reader meets 12 men and one woman who
have been executed by the state in the
name of justice. In the central narratives
the reader also encounters the families of
the condemned and other personalities:
wardens, gua.rds, lawyers, governors, and
activists. Ingle's unique perspective of
having been a participant draws the
reader, often painfully, into the events
surrounding the legalized killing of
people he came to know as friends.
Last Rights fills a void in public
information about those who, under
color of law, we condemn to death.
Having known Joe Ingle (who has been
twice nominated for the Nobel Peace
Prize) for several years, having known
two of the men executed (Frank Coppola
and Morris Mason); and being under
sentence of death myself, I found it hard
not to be overwhelmed by the real
dramas so vividly exhibited in this book.
As I read the account of the execution of
John Evans, I had to put the book down
for a time. Once able to read again, I
began to wonder what Thomas Jefferson
or James Madison would have thought
about this brutal 1983 execution:
The electric chair malfunctioned, a
strap burned offhis leg, and it took
fifteen minutes to kill him....A moment
later, as spark andflame crackled
around Evan's head and shaven, razornicked leg, white smoke seepedfrom
beneath the veil and curledfrom his
head and leg....Two doctorsfiled out of

I

THE NATIONAL PRISON PROJEO JOURNAL

'"

:g
~

~

"8
~

Qi

-,g
Jl
Rev. Joseph Ingle and Willie Lawrence Adams. Photo taken May 9,1984, the day
before Adams' brother James was executed in Florida.

the witness room to examine the body
andpronounce Evans dead....Evans'
chest rose against the straps the first
time. It rose evenly once, twice, maybe
again.... When the second charge
subsided, the doctors reexamined Evans
and again it was clear theyfound a
pulsating heart.... the third charge was
administered.
Or thought of the state of Virginia:
... trying to electrocute a manchild,
Morris Mason, age 3~ who had an lQ. of
66and was diagnosedparanoid
schizophrenic. The evaluation was not
in question....The state Of Virginia was
seeking to kill a man who, when
rationa4 had the mentality of the
lowest 3 percent of the population in
the United States....At onepoint Morris
looked up and asked: 'What does it
mean to die?:... We sat outside the cen
the minutes slipping away. Marie held
Morris's hand. He asked about death
again. Before we could answer, his
expression brightened, and he said:
'Does it mean I get to order anything I
wantfor breakfast?:...Across the street
a cheering mob ofseventyjive to one
hundredpeople were chanting 'Fry the
nigger'and 'Kill the coon.' When the
official word came that Morris had
been killed, this ghoulish gathering
filled the summer's night air with a
cheer.
Last Rights is more than a book about
condemned criminals. In its honesty of
emotion it transcends the stereotypes.
Through the author the reader
experiences man's compassion and
cruelty. Rev. Ingle is more than itinerant
pastor and friend to those condemned to
die and to their families. His voice and

message speak to society at large:
One might argue that Holocaust
victims, slaves, and Native Americans
were innocent and that the victims of
capitalpunishment criminals, are
guilty. This is obviously true, but this
argument misses the central issue Of
the state assuming the authority to .
take human life. The state has
engineered a legal mechanism against
life itself....After an was a slave less ofa
human being because the law decreed
him chattel? Was a Native American
less than human because the state
defined him in such a manner that
made it legal to take his land? Or was a
victim of the Holocaust less ofa human
being because the Third Reich decreed
him subhuman? Is a murderer less ofa
human being because the state
objectifies him in order to kill
him?...The state lawfully took life in
each category of victims listed above
because itgives itself the authority to
do so, but the essential humanity Of
each person remains. The state is
engaged in mere legal artifice to
accomplish its objective.
After finishing Last Rights, I truly
began to wonder about the concept of
"inalienable" rights: Joe Ingle's journey
underscores the radical, self-evident
truth, "...that all men are created equal;
that they are endowed by their Creator
with certain inalienable rights: that
among these are life..."
LastRights is an essential book that
should be circulated widely in every
school and town library. •

Joseph Giarratano is on Death Row in
Virginia.
FALL 1990 25

~,

National
Commission on
AIDS Holds First
Hearing on AIDS
in Prison
n December 1989 the National
Commission on AIDS delivered its
report to President Bush outlining
the extent of the crisis caused by the
AIDS epidemic and calling for sweeping
and prompt solutions. The report faulted
federal and state governments for failing
to rise to the challenge of fighting AIDS
and failing to bring together the forces
needed forthe fight. Commission
members dedicated themselves to
bringing the "missing players to the
table" through meetings and hearings.
One such historic hearing was held in
New York City on August 17, 1990.
The public hearing was entitled "HIV
Infection and AIDS in Correctional
Facilities." Testimony presented by
health educators, prisoners, lawyers,
women's advocates, judges and medical
experts drew national attention to the
critical problems created by the AIDS
epidemic in prisons and jails.
June Osbor'h, dean of the School of
Public Health at the University of
Michigan and author of several articles
on HIV disease, chaired the session. Mark
Lopez, a staff lawyer with the ACLU
National Prison Project began by
testifying, "In the United States, we
imprison far too much and our sentences
are far too long. Racial and economic
discrimination are widespread. Many
prison terms are served in degrading,
brutalizing conditions."
"People with AIDS should not have to
die in prison," stated Dr. Robert Cohen,
former medical director at Rikers Island,
the New York City jail complex, and now
medical director of the AIDS Center of St.

I

26 FAll 1990

Vincent's Hospital in Manhattan. Cohen,,~
spoke about the "appalling" medical ca!i
given HIV-infected prisoners from .,
Connecticut to Alabama, and urged t)J.e
Commission to advocate early releas~for
prisoners with AIDS and other termh'lal
illnesses.
Apanel of attorneys and medical
doctors detailed abuses faced by HIVpositive prisoners, such as lack of
confidentiality, poor-to-nonexistent
medical care, mandatory HIV testing and
segregation.
According to Alexa Freeman, a lawyer
with the National Prison Project,
Alabama represents one of the worst
cases in care and management of HIV
disease in its prisons by forcibly testing
for HIV, segregating all those testing HIVpositive, denying HIV-positive prisoners
access to vocational training and most
prison employment, and providing no
confidentiality for prisoners. The NPP is
involved in the appeals process of a class
action lawsuit contesting many of these
policies.
German V. Maisonet, M.D., Chief of HIV
Services at California's Vacaville medical
facility, testified that he was hired to
upgrade the facility's medical care as a
result of the successful settlement of
Gates v. Deukmejian (a class action
challenging medical care at Vacaville). A
pilot program is underway to change
California's policy of segregating HIVpositive prisoners.
Catherine Hanssens reported that New
Jersey's Department of Corrections
estimates between 30-50% of the prison
population is HIV-infected. Hanssens
explained that in New Jersey, "those who
progress to AIDS are automatically
segregated in the 'Special Medical Unit.'''
Not an infirmary, the unit is an involuntary administrative segregation housing
area.
Michael Wiseman of the Prisoners'
Rights Project of the Legal Aid Society of
New York presented testimony about the
lawsuit filed on behalf of HIV-infected
prisoners in New York State. To prepare
for the lawsuit, Wiseman described
"heartwrenching" visits to New York
prisons: "[T]he horror of living in prison
with a fatal disease and of having little
or only rationed access to doctors,
treatments, information and counseling,

and with no hope for an early release
despite one in debilitated condition."
Health educators believe that as many as
40-60% of New York State prisoners may
be HIV-infected.
Brenda Smi~, representing the
National Women's Law Center, said there
was an urgeH:t need for both comprehensive treatment and support for imprisoned women with AIDS and education of
women prisoners to reduce the risk of
contracting HIV. "Although women
comprise only 9% of those infected with
AIDS, they are the fastest-growing
population to be affected, especially
women of color, particularly Black, Latin
and Native American women," said Smith.
Corrections administrators are not
responding quickly enough with education and programming, she added.
Marilyn Rivera, co-founder of ACE
(AIDS Counseling and Education) at
Bedford Hills Correctional Facility in
New York State, described ACE as a peer
education and counseling program; it is a
success model that should be adopted by
prisons and jails throughout the country.
Athick packet of letters, articles and
testimony by prisoners with HIV disease
and prisoners active in AIDS education
programs was presented by Judy
Greenspan, AIDS Information Coordinator of the National Prison Project.
She documented abuse and mistreatment
of prisoners with AIDS. Greenspan also
alerted the Commission to the case of
Gregory Smith, an HIV-positive prisoner
in New Jersey who was convicted of
attempted murder and sentenced to 25
years for allegedly biting a correctional
officer. Greenspan stated that this case
and over a dozen others like it epitomize
fear and ignorance about AIDS.
The two-day focus on AIDS and prison
issues by the Commission received broad
media attention and should provide the
blueprint for a more enlightened,
compassionate and comprehensive
federal response to a serious medical
epidemic. •

Judy Greenspan is the AIDSInformation
Coordinatorfor the National Prison
Project and contributes a regular
column to the NPPJOURNAL.
THE NATIONAL PRISON PROJECT JOURNAL

blications
The Jail Litigation
Status Report gives a

The National Prison "
Project Status Report
f

{

lists by state those present1yt~
under court order, or thoS~<7
which have pending litiga,-' ,
tion either involving the"»~
entire state prison systeItli: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.

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

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, AIDS,
family support, and exoffender aid. 9th Edition,
published September 1990.
Paperback, $30 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/

APrimer for Jail Litigators is a detailed manual

Offender Rights Litigation: Historical and
Future Developments. A
book chapter by Alvin].
Br,pnstein published in the

Prisoners'Rights
Sourcebook (1980). Traces

QTY. COST

1990 AIDS in Prison
Bibliography lists

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.

state-by-state listing of cases
involving jail conditions in
both federal and state courts.
The Report covers unpublished opinions, consent
de&ees and cases in progress
a§~~ell as published decisions. The Report is the first
nationwide compilation of
litigation involving jails. 1st
Edition, published September
1985. $15 prepaid from NPP.

QTY. COST

with practical suggestions for
jail litigation. It includes
chapters on legal analysis, the
use of expert witnesses, class
actions, attorneys' fees,
enforcement, discovery,
defenses' proof, remedies, and
many practical suggestions.
Relevant case citations and
correctional standards. 1st
Edition, February 1984. 180
pages, paperback. (Note: This
is not a "jailhouse lawyers"
manual.) $15 prepaid from
NPP.

QTY. COST

Fill out and send with check payable to:

Name

The National Prison Project

Address

_

1875 Connecticut Ave, NW, #410
Washington, D.C. 20009

City, State, Zip

_

THE NATIONAL PRISON PROJECT JOURNAL

_

FALL 1990 27

The following are major developments in the Prison Project's
litigation program since July 1, 1990.
Further details of any of the listed cases
may be obtained by writing the Project.

T

Brown v. McKernan-In early October,
1990, we filed suit challenging
overcrowding and conditions for
protective custody and administrative
segregation prisoners at the Maine State
Prison.
Congdon v. Murray-On September 21,
1990, we filed a lawsuit on behalf of
prisoners in the Virginia State
Penitentiary challenging unconstitutional conditions. Prison officials have
promised to close the antiquated facility
at least twice in the last two years. We
filed the case when our numerous
requests to remedy conditions failed to
produce a response from officials.
Dickerson v. Castle-This case
challenges conditions in the Delaware
prison system. On July 16, oral argument
was heard on plaintiffs' motion for
contempt which was filed upon
discovery of additional overcrowding at
one of the prisons.
Harris v. Thigpen-This case challenges
the AIDS testing and segregation policies

National Pr~on Project
American Civil liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830

28

FALL 1990

of the Alabama Department of
Corrections. In September, we filed our
appeal brief with the Eleventh Circuit,;V
Court of Appeals.
,,,'"
Inmates of Occoquan v. Barry-TIi~
case challenges conditions at the District
of Columbia's Occoquan prison facilities.
We have settled the issue of attorneys'
fees and expenses for $750,000 and are
now attempting to obtain compliance
with the court's orders.
Lecc1ier v. Bayh-At the end of June
1990, we filed a suit challenging
overcrowding and conditions at the
Indiana Reception and Diagnostic Center.
Palmigiano v. DiPrete-This case
challenges conditions in the Rhode Island
prison system. The district court has
entered a series of orders modifying and
refining its order of May 22 which
directed defendants to meet population
requirements, pay money to a bail fund,
and implement medical and
environmental remedies. The court also
ordered defendants to provide blocks of
good time to certain prisoners in order to
meet population caps. Since then, the
population at the two facilities has been
greatly reduced.
Thomas v. Kidd-This case challenges
conditions and overcrowding in the
Mecklenburg County Jail (N.C.).
Defendants attempted to postpone

litigation by presenting plans for a
building program that could take years to
implement. Plaintiffs submitted a
settlement proposal and filed for a
preliminary injunction. The court has
scheduled a hearing in November 1990.

,

u.s. v. Michi~ltn/Knop v.JohnsonThis is a stateWide Michigan prison
conditions case. On June 29, the Sixth
Circuit issued a stay on the district court's
classification and contempt orders. On
September 19, the parties argued the
merits of a number of consolidated
appeals, and a major compliance hearing
was held October 10-12, 1990.
Washington v. Tinney/johnson v.
Galley-This case challenges conditions
and overcrowding at two Maryland state
prisons. In response to a significant
increase in the prison population in 1989,
plaintiffs in July 1990 filed a motion to .
hold defendants in contempt of the
settlement agreement.
Wilson v. Seiter-On behalf of a
prisoner of Ohio's Hocking Correctional
Facility, we filed a petition for writ of
certiorari with the Supreme Court in
May. The petition argued that the Sixth
Circuit decision, which found in favor of
corrections officials, applied a standard
which conflicts with the standard
applied by other circuits for Eighth
Amendment violations. The Supreme
Court granted certiorari on October 1.

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