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A PROJECT OF THE AMERICAN CIVllliBERTlES UNION FOUNDATION, INC.
VOl. 6, NO.1, WINTER 1991 • ISSN 074$-2655

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U.S. Now Leads World in Rate ofIncarieration
Incarceration rates for the United States, South Afric
and the Soviet Union in comparison to Europe an
Nation
United States
South Africa
Soviet Union
Hungary
Malaysia
Northern Ireland
Hong Kong
Poland

New Zealand
United Kingdom
Turkey
Portugal
France

81

Austria

77

Spain

76

Switzerland

73

Australia

72

Denmark

68

Italy

60

Japan

45

Netherlands

40

Phillippines

22

Source: Penal Reform International, using data from theCou· .
Australian Institute ofCriminology

triving to be Number One is an
honored American tradition.
While only ten years ago the
United States' incarceration rate was
third in the world, we have now moved
into first place. Anew study by the
Sentencing Project reports that with
more than one million people behind
bars, the United States has now surpassed South Africa and the Soviet
Union in punitiveness.
Of every 100,000 Americans, 426 live
behind bars. In South Africa, 333 of every
100,000 are in prison; in the Soviet Union,
268; Great Britain, 97; Spain, 76; the
Netherlands, 40.
Perhaps even more shocking is the
finding that Black males in the United
States are imprisoned at a rate of four
times that of Black males in South Africa:
3,109 per 100,000 compared to 729 per
100,000.
The study, Americans Behind Bars: A
Comparison ofInternational Rates of
Incarceration, was written by Marc
Mauer, assistant director of the Sentencing Project.
The incarcerated population in the

S

,
United States has more than doubled in
thelast decade, rising from just over
500,000 in 1980 to one million today. The
study stresses that incarceration rates,
however, do not rise and fall with crime
rates. "Although the crime rate has
dropped by 35% since 1980, the prison
population has doubled in that period," it
notes. "Breaking down these figures
further, we see first that crime dropped
by 15% from 1980 to 1984, while the
number of prisoners increased by 41%;
then, from 1984-1989 crime rates climbed
by 14%, while the number of prisoners
rose by 52%. Any cause and effect
relationship is difficult to discern." The
statistics are furnished by the F.B.I..
Fear of crime and increasingly punitive
attitudes in recent years have led to
mandatory sentencing laws and tougher
sentencing guidelines. Mauer suggests
that these new laws reflect counterproductive and inappropriate policy choices.
"The choice for policy makers in responding to our high national crime rate...was
very stark. The first option was to
continue to build new prisons and jails at
a cost of $50,000 a cell or more, and to
spend $20,000 a year to house each
prisoner, or to spend these same tax
dollars on prevention policies and
services-programs designed to generate
employment and to provide quality
education, health care, and housing,

along with alternatives to incarceration
rather than new prison cells....
"Overwhelmingly, the punitive policies
of the first option were the ones selected
at both a national and local level," says
the report. "Had the punitive policies
resulted in dramatically reduced crime
rates, one could argue that their great
expense was partially justified by the
results. But as the 1990s begin, we are
faced with the same problems as in 19~f);
only greater in d e g r e e . " · p
The Sentencing Project recommends:' if
· repeal of mandatory sentencing laws;
· expansion of alternatives to incarceration;
· treatment of drug abuse as a health
problem rather than a criminal justice
problem;
· redirection of the focus of law
enforcement to address community needs
and to prevent crime;
· government funding of pilot programs to reduce the high rate of imprisonment of African American males; and
· establishment of a national commission to examine the high rate of incarceration of Americans, particularly
African American males.
Copies of the report are available from
The Sentencing Project, 918 FSt., NW,
Washington, D.C. 20004 for $5.•

To the Editor:
I appreciate the use of our article in
your story by Russ Immarigeon on
alternatives to capital punishment,
2 WINTER 1991

Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connectic~ Ave., NW, #410
Washington, D.q. 20009
(202) 234-483P-' FAX (202) 234-4890
The National Prison Proied is a tax~exempt foundationfunded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and iuvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judicial channels; and to develop alternatives to
incarceration.
The reprinting of JOURNAL material is encouroged with
the stipulation that the National Prison Project JOURNAL
be cnedited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materials and suggestions
are welcome.

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

jan Elvin is editor Of the NPPJOURNAL.

LETTERS TO THE EDITOR
In his article in the Summer 1990 issue
of the NPPJOURNAL, Russ Immarigeon
discussed alternativepunishments to the
death penalty, noting that anti-death
penalty efforts which fail to suggest
alternatives are incomplete.J The most
popular alternative, life withoutparole,
he wrote, was an unsatisfactorily broad
political ameliorative." Drawingfrom
recent studies and surveys, he instead
proposed alternatives such as increased
victim servicesprograms, the
demystification of violence through
education, broader use ofdefense-based
sentencing advocacy services, and
penalties which coordinate safety and
victims' needs with social services and
treatment. Two death penalty opponents
respond to his article in the following
letters.

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat

"Instead of Death: Alternatives to Capital
Punishment," Vo15, No.3 (Summer 1990),
although its publication year was not
1990, but rather 1989.
The difficulty I have is that Mr.
Immarigeon evidently fails to recognize
that... one need not affirmatively
advocate life without parole ("L WOP") in
order to take advantage of the public's
preference for some version of LWOP as
an alternative to the death penalty.
Instead, one can point out (as the article
does at the outset) the fact thatwhether we like it or not-LWOP does
already exist in most jurisdictions, and
hence the assertion that the death
penalty is needed to incapacitate death
row inmates from being released speedily
to kill again is simply untrue.
To me, that is the key point. It is a
factual point which does not require us
to come up with some other theoretical
alternative to the death penalty now.
What's crucial is to explain that an
alternative that is preferable to the

public already exists. Once the public
knows that, many fewer sentences of
death will be imposed, and we may be
able to abolish capital punishment.
Thereafter, we can come up with the
other sorts of alternatives hypothesized
by Mr. Immarigeon.
Ronald J. Tabak, Esq.
Skadden, Arps, Slate, Meagher & Flom,
New York
To the Editor:
As a matter of prUdence, Mr.
Immarigeon is right in suggesting that
we need to propose alternatives to the
death penalty, but only as a matter of
political prudence. Those who advocated
the end of burning at the stake or
drawing and quartering were hardly
obligated, morally, on the merits, to offer
alternatives to calm society's shattered
nerves.
But so long as it is prudent, I am not
sure his catalogue is terribly persuasive.
The four he propounds-victim services,
demystifying Violence, sentencing
advocacy, and new kinds of penalties
(largely non-incarcerative, I suppose)THE NATIONAL PRISON PROJECT JOURNAL

i

rl

all have merits quite unrelated to the
retention vel non of the death penalty
and they seem to me utterly unlikely to
appease the public's desire for tough
retributiveness (to say nothing of the
courts'). They not only do not address the
problem, they dis-address it, if I may say
so, by more "liberal" social service
techniques whose failure (or at least
perceived failures) are precisely what
has turned the society so anti-liberal. No
one trusts you to cure child abuse before
they get stabbed waiting for the evening
bus; that's what it amounts to. Indeed, if
you got those four programs actively
implemented, they could serenely coexist with capital punishment (and
probably would).
I abhor life-without-parole notions as
does Mr. Immarigeon. I understand the
Governor's felt political need for that
push in New York, but I will not be heard
to endorse it. Leon Sheleff (in his
Ultimate Penalties) quite unnecessarily
reproaches the American abolition
movement for surreptitiously supporting

LWOP to slake the public's thirst for
beastliness.
Henry Schwarzschild, Director
ACLU Capital Punishment Project,
NewYork
To the Editor:
I really appreciated David Fathi's
article on U.S. political dissent in your:f
Fall 1990 issue? but he made a small but
significant historical error when h~;~'
states that Congress in 1940 enacted~he
Smith Act to "criminalize membershfp in
the Communist Party." Actually the
Communist Party favored the passage of
the Smith Act because it supported World
War II and the Act originally targeted
anti-war Trotskyists. It is both one of the
great ironies of the left and one of the
best historical arguments for civil
liberties for all regardless of political
belief that the CP originally endorsed an
act that after the war would have such a
devastating impact on it.
Bill Douglas, Director
Criminal Justice Ministries, Des Moines

AIDS Project Presses for
Programs Behind Walls
ince the beginning of the AIDS
epidemic, there have been 5,411
cases of full-blown AIDS in jails and
prisons. This figure represents a conservative estimate because many AIDS cases
are still misdiagnosed or unreported.
Statistics compiled for 1989 show, for the
first time, that the percentage increase of
AIDS cases in prisons
and jails exceeded the
increase in the outside
general population;
prison and jail AIDS
cases in the United
States increased by
72%, while cases on
the outside only
increased by 50%. To
some extent, the
higher percentage in
prison AIDS cases
reflects better
reporting measures, more accurate
testing and better record keeping than
the previous year. However, it also
highlights the changing nature of the
HIV epidemic in this country. The spread
of HIV disease in the United States has
shifted from the white gay male popula-

S

THE NATIONAL PRISON PROJECT JOURNAL

tion to poor communities heavily
affected by IV drug use and addiction. In
particular, Black and Latino populations
are increasingly at risk. Because Blacks
and Latinos are disproportionately
represented in our nation's jails and
prisons, the number of prisoners with
HIV disease has grown. Notably, however,
the growth in the
number of HIVinfected in jails and
prisons is not due to
transmission within
the institutions.
Instead, people are
coming into prisons
from the street
already infected.
Today's profile of a
prisoner with HIV
disease is a Black or
Latino male with a
history of IV drug use. While the percentage of women with AIDS in prison has
been increasing rapidly, women still
comprise less than 10% of that population.
Most correctional AIDS cases are still
found in the Mid-Atlantic states of New
York and New Jersey (over 60%).

Fathi replies. While I wholeheartedly
agree with Bill Douglas on the importance of resisting repressive legislation,
whoever the ostensible target, he is
incorrect when he states that the
Communist Party originally supported
the Smith Act. The origin of this persistent misconception is unknown, although it has been attributed to Socialist
Party leader Norman Thomas. In fact, the
CP vigorously fought the Smith Act from
its inception, and several party leaders,
notably Eliza~eth Gurley Flynn, actively
opposed the Stnith Act prosecution of
Trotskyists: Ail account of these events
may be found in Herbert Aptheker, Can
We Be Free? An Analysis of the Smith/
McCarran Act~ published at the height
of the Smith Act trials.
1 "Instead of Death: Alternatives to the
Death Penalty," NPPJOURNAL, Vo15, No.3.

2 "U.S. Punishes Political Dissidents," NPP
JOURNAL, Vo15, No.4.

These data present both a challenge .
and an opportunity for public health
officials and prisoner advocates. Traditionally, IV drug users have been a very
difficult population to educate about the
AIDS epidemic, but imprisonment offers
a prime opportunity to reach them. At
the same time, public health and prisoner
advocates have encountered formidable
obstacles in putting together AIDS
programs.
This past year the AIDS Project of the
National Prison Project has encouraged
the development of effective AIDS
education programs targeted to the
special needs and concerns of prisoners.
Much of our work reflects an effort to
encourage corrections administrators,
medical service directors, AIDS service
organizations, state legislatures, and AIDS
activists to provide quality, comprehensive AIDS education to prisoners and
staff. Also, we have stepped up our
support for peer education and counseling efforts in the jails and prisons
because health educators on the outside
have emphasized the importance of
organizing community-run AIDS
education programs.
Last December, for example, Judy
Greenspan, AIDS information coordinator for the Project, attended AIDS
education seminars at Rikers Island,
which is part of the New York City jail
system. While there, she interviewed
staff at the Center for Community Action
WINTER 1991 3

r
to Prevent AIDS at Hunter College. The
Center has been in the forefront of
developing peer education and counseling projects in poor communities in New
York City. The Center recently initiated
an "empowerment" AIDS education
project for women prisoners at Rikers
Island. Greenspan interviewed Dr.
Nicholas Freudenberg, the director of the
Hunter College Center for Community
Action and author of the book Preventing AIDS, A Guide to Effective Education
for the Prevention ofHIV Infection.
In March 1990 the American Foundation for AIDS Research (AmFAR) invited
NPP staff to serve on their Expert Review
Panel in the AIDS Education Material
Review Project, and to review a large
assortment of AIDS education materials.
In July, Ms. Greenspan attended a fourday Reviewer's Conference co-sponsored
by the National AIDS Information
Clearinghouse (NAIC) of the U.S. Department of Health and Human Services
Centers for Disease Control. We reviewed
over 1,600 brochures, videos, posters and
other AIDS information materials from
the NAIC database. We were able to meet
with a diverse group of AIDS and health
educators from around the country,
many of whom are beginning to do AIDS
education in local prisons.
The AIDS Project has lent assistance
over the past year to prisoner groups
who are developing peer education
programs at the Attica, Clinton, Eastern,
Fishkill, Great Meadow, and Bedford Hills
Correctional Facilities in New York State.
We have provided educational materials
and technical assistance to these pioneer
efforts. The Project also produces an
informal newsletter to prisoner AIDS
educators and counselors now being
circulated in several prisons in New York
State. Unfortunately, most New York
State prison administrators have not
responded favorably to prisonerdeveloped education programs.
Peer education efforts have met with
greater success in Massachusetts. An
ongoing, sanctioned AIDS education and
counseling program at MCI Norfolk has
received a great deal of support and
assistance from the AIDS Project.
One barrier that prisoner AIDS
educators constantly face is the lack of
support by outside AIDS service organizations for their efforts inside. The AIDS
Project has helped to form the Ad-Hoc
Prison Health Network-a broad group of
prisoner advocates, health educators,
people with AIDS and AIDS service
organizations, including the National
Lawyers' Guild AIDS Network,
4

WINTER 1991

ActionAIDS of Philadelphia, the nowdefunct National AIDS Network, and the
NPP. The first project of the Prison
Health Network was an all-day institute
held in Washington D.C. on July 18, 1990.
Over 100 health educators, attorneys and
others attended the day-long session
entitled "HIV/ AIDS Education and
Health Concerns for Incarcerated
Populations." Workshops were held on
medical and psychosocial issues, AIDS, ..
education for prisoners and staff, and ~"
advocacy and support for prisoners wHh
HIV disease.
Of course, the most valuable educational tool of the AIDS Project is the
brochure, AIDS & Prisons: The Factsfor
Inmates and Officers. This year, we
updated this educational tool to 27 pages,
with expanded sections on medical care
and legal rights for prisoners with AIDS.
We also added a new section on women
and AIDS. To date, we have distributed
135,000 copies in the prisons, jails, and
detention centers of this country. The
Spanish language pamphlet remains one
of the few resources available and
relevant to Latino prisoners.
In addition to education, another major
and continuing concern of the AIDS
Project has been to ensure that HIVinfected prisoners receive adequate
medical care and are treated fairly. Over
the past year, certain medical breakthroughs have led doctors to change
their views of this disease. AIDS, while
incurable, can be managed for an
increasing number of years as a chronic
condition rather than the "killer virus" it
was once considered. With proper
medical attention, frequent T4 cell
monitoring, and access to early treatment
regimens of such drugs as AZT and
aerosolized pentamidine, the life span of
people with HIV disease has increased
dramatically. The challenge for corrections, health educators and prisoner
advocates is to ensure that prison
medical care is upgraded to reflect
changes in treatment methods.
Despite the recent breakthroughs in the
treatment of HIV disease, most HIVpositive prisoners do not have access to
early or continuous medical care, even
though FDA-approved. Daily advocacy on
behalf of prisoners with HIV disease has
become one of the most important tasks of
the AIDS Project in the following ways:
· We respond to prisoners' requests by
mail and by phone;
· inform prison officials and prison
medical staff of the prisoners' complaints;
· provide medical information to

prisoners so they are better able to
monitor their own care;
. work with prison officials and
medical staff to improve their HIV
protocols; and
. obtain attorneys to represent the
prisoners if necessary.
Besides often being denied FDAapproved treatments, prisoners are
denied access to experimental HIV drug
trials. Last October, the AIDS Project
began collaborating with the AIDS
Action Foundat\pn to plan a roundtable
conference on prisoner access to experimental HIV dr,lf§ trials. Access to experimental drugs has been a life and death
issue for HIV-positive people in the
general population and a focus of AIDS
activists around the country. Prisoner
access to these drug trials is a much more
complicated and sensitive issue than is
access by people outside prison. After two
months of planning, this unique
roundtable conference, "Prisoner Access
to Experimental HIV Drug Trials," was
held in January 1990, in Washington, D.C.
An impressive grouping of medical
experts, ethicists, attorneys, people with
AIDS and health educators attended.
Since this roundtable meeting, prisoner
access to drug trials has been discussed
widely in both public policy and
corrections forums.
In addition to medical advocacy, the
AIDS Project is constantly called upon to
look at a range of problems stemming
from the isolation of HIV-positive
prisoners; the involuntary antibody
testing of prisoners; the lack of voluntary testing for prisoners; the lack of
confidentiality regarding medical records
and the identities of infected prisoners;
and the refusal of public officials to
develop early release policies for
prisoners dying of AIDS.
One of the most difficult aspects of this
work is finding lawyers who are willing
to represent HIV-infected prisoners. NPP
staff work hard to encourage prisoner
legal advocates across the country to
take on cases by contacting them and
offering support. We offer to assist
attorneys by tracking AIDS and prison
cases throughout the country. We help
them identify the issues and provide
referrals to experts in the field. Often
consultations continue throughout the
duration of a case.
Alexa Freeman, the AIDS Project
director, is writing the chapters on AIDS
and prison issues for the updated Yale
University Press book on AIDS and the
Law and the National Lawyers' Guild's
AIDS Litigation Manual The chapter in
THE NATIONAL PRISON PROJECT JOURNAL

the Litigation Manual is directed to
lawyers and should be helpful for those
considering taking these cases.
Most lawyers find the Project's updated
AIDS and Prison Bibliography very
useful. It remains in great demand with
over several hundred copies distributed
this past year. The 1990 Bibliography
contains one of the most comprehensive
legal case listings of AIDS and prison
issues. We have added an expanded
resource section listing educational
materials and organizations servicing a
variety of communities affected by the
AIDS epidemic.
Finally, Project advocacy on behalf of
HIV-infected prisoners has emphasized
public education. In the past year, staff
have provided background information
to news media and have been interviewed for stories on AIDS in prison. We
are frequently invited to speak at
conferences around the country. In the
past year these have included, among
others, the National Commission on
Correctional Health Care Conference, the
American Public Health Association
Conference, the Lavender Law Conference, a program on AIDS and the Bill of
Rights at Northern Virginia Community
College, the National Conference of Black
Lawyers Conference, and the ACLU
Executive Directors' and Lawyers'
Conference. Judy Greenspan continues to
write her AIDS Update column which
now appears regularly in the National
Prison Project JOURNAL.
Perhaps the most important public
education took place under the auspices
of the National Commission on AIDS
(formerly the Presidential Commission
on AIDS). The Commission held its first
hearing on AIDS and prison on August 17,
1990 in New York City. The AIDS Project
played a major role in the
conceptualization of this hearing and
helped develop the speakers' list. We
presented t@stimony on Harris v.
Thigpen, 727 F.Supp.1564 (M.D.Ala.1990),
a case brought by the National Prison
Project, the Southern Prisoners' Defense
Committee, and local lawyers challenging the mandatory HIV testing and
segregation of Alabama state prisoners,
and the inadequate medical and mental
health care provided them. We also
collected and presented testimony from
many prisoner peer educators and
prisoners with HIV disease to the
Commission. The Project is now advising
the Commission on the preparation of its
final report and recommendations to
President Bush.
The AIDS Project has embarked on
THE NATIONAL PRISON PROJECT JOURNAL

many exciting projects over the past
year. It is a unique national resource on
AIDS and prison issues and has played an
important role in encouraging local legal
advocates and AIDS service organizations
to tackle the complex problems faced by
prisoners with HIV disease and AIDS.
Project staff has its work cut out for it
over the next year: to continue to
advocate for comprehensive and
-,'
meaningful AIDS education programs for
incarcerated populations. Through ~he
Prison Health Network and our work
with local advocacy groups, the AIDS
Project will continue to seek to secure
sorely needed medical, psycho-social

support and legal services for prisoners
with HIV disease. At the same time, we
will continue to work with a growing
coalition of organizations, governmental
bodies like the National Commission on
AIDS, and individual corrections administrators, medical directors, health
educators, prisoners and AIDS activists to
develop model policies on the care and
management of HIV disease in the
nation's prisons and jails.•

Alexa P. Freeman, a staffattorney at
the NPp, is AlliSprojectdirector.
judy Greenspfm is the AIDS information
coordinator.

FOR THE RECORD
• The Summer 1990 issue of Jail
Suicide Update includes Part One of a
four-part series.on Model Jail Suicide
Prevention Programs.• The Update
describes a model program in the
Oneida, New York Correctional Facility
which relies on thorough Suicide
Prevention Screening Guidelines, three
levels of inmate supervision, and interagency cooperation involving local
mental health agencies. Jail Suicide
Updateis a quarterly newsletter
published by the National Center on
Institutions and Alternatives; the
Summer 1990 issue is available free to
readers of the NPPJOURNAL. Contact
the NationaFCenter on Institutions and
Alternatives, 40 Lantern Lane,
Mansfield, MA 02048,508/337-8806.
Jails which would like their model
suicide prevention program considered
foraJuture Jail Suicide Update
also contact NCIA.
.The Prison Fellowship has
announced it will officially launch
~merica's first national in-prison
newspaper,the Insidejournal, at the
DistrictCorrectionaFComplexat
Lorton, Virginia.
Writtenfor prisoners by current and
formerinmates, the premierissue of
the quarterly publication is being
distributed to prisons in Alabama,
California,Colorado, Connecticut,
Indiana, Pennsylvania and Washington, D.C. Future issues will be distributed to state and federal prisons
nationwide.
"Our primary goal is to provide
inmates with resources for life in prison
so that, once released, they will never
seHoot in prison again,"says Charles W.

Colson, Prison Fellowship chairman,
"With prisons packed to capacita'lld
national recidivism studiessho~i
that two out of three currentintnate~ '.
will return to prison, that'sata.IFQ~4e~
for a newspaper, but we believgl~$i e
journal is a step in the rightdire
Colson adds.
Former inmate and senior edit
Insidejourna~ Craig Pruit~addst~~t
"we want to introduce inmate
way of life, and at thesameti
with prison officials and thep
gaining a deeper understandin
justice system from the prison~
of view. We are delighted with
cooperation we've receivedfr()
correctional officials who've a
assist us in distributing then~
infederal and state prisons."
The newspaper will pUblis
stories ofcurrent andJorm.~r
and encourage them tocontri
its many columns, inclUding"
Behind the Walls" {news clip
prison life); "Bar None" (intIl
"Staying Together,"(advicea.
to inmates who will soon be
The Insidejournal alsowillf
professional sports schedules
on health issues that affec
entertainment, medicaFbreaK;
politics,and news from· other
institutions nationwide. Pruitt
the newspaper willprovideiIU
access to national statistics and
developing trends in prisons,t
resulting in more timelyresp()
solutions to prison problems.
For information,contactPrlso
Fellowship, P.O. Box 17500,Was
ton, D.C. 20041-0500, (703)834-3
WINTER 1991 5

A PROJEO OF THE AMERICAN CIVil LIBERTIES .UNION FOUNDATION, INC.
VOL 6, NO.1, WINTER 1991 • ISSN 0748-26,$
.e,:j~

Highlights of Most
Important Cases
Modification ofJudgments/Judicial
Disengagement
How long does a court injunction last? What
does it take for prison officials to get out from
under judicial supervision?
The Supreme Court's recent decision in
Board ofEducation of Oklahoma City Public
Schools v. Dowell, No. 89-1080 (U.S., January 15,
1991), a 30-year-old school desegregation case,
may make it easier for school officials to
escape the obligations of injunctive orders. But
Dowell's relevance to other civil rights
litigation, especially prison cases, is far from
clear, and in practice the decision may make
post-judgment monitoring in prison cases more
intrusive.
Traditionally, a defendant can escape the
obligations of an injunction only on a showing
of "grievous wrong evoked by new and
unforeseen conditions." United States v. SWift &
Co., 286 U.S. 106, 119 (1932).1 Dowellholds that
this is the wrong standard to apply to the
dissolution of school desegregation decrees. In
Swift an antitrust case, the decree "was by its
terms effective in perpetuity." By contrast,
"[f]rom the very first, federal supervision of
local school systems was intended as a
temporary measurl!'to remedy past discrimination." Therefore, the court held that a finding
that the schools were "being operated in
compliance with the commands of the Equal
Protection Clause, and that it was unlikely
that the school board would return to its
former ways," would suffice to justify
dissolving the decree.
The Dowell opinion, like most school desegregation cases, is framed almost entirely in
terms of desegregation law, without reference
to any general jurisprudence of civil rights
remedies. Its relevance to public institutions
other than schools is therefore debatable, and
there is good reason to believe it will have
little application to prison litigation.
6 WINTER 1991

Dowell dealt with classic de jure segrega~!e
tion, rooted in the state constitution and .,
statutes and buttressed by state-enforced
restrictive covenants and intentionally
discriminatory acts by the school board.
Racism is alive and well in America, but not
this kind of overt official discrimination. Jim
Crow has gone, and its days were obviously
numbered thirty years ago. It was entirely
reasonable to expect that school desegregation
decrees would be a "temporary measure to
remedy past desegregation," as even Justice
Marshall agreed in his dissenting opinion.
By contrast, the prison conditions that have
led to large-scale, protracted federal court
intervention are rarely archaic remnants of a
bygone social order. Rather, they arise from
lack of resources and administrative neglect
or incompetence, which in turn lead to
deteriorated physical facilities, correctional
and professional staffs that are inadequate
both in numbers and in qualifications,
administrative procedures that fail to deliver
essential services and to control hazards to life
and health, and the failure of lower-level
staff to carry out those policies and procedures that are nominally in place.
These problems are as modern as the
explosion in the prison population, competing
governmental priorities, and economic crises
in states and localities-none of which show
any sign of fading away within our lifetimes.
One need look no further than the case of
Tillery v. Owens, 719 FSupp.1256 (W.D. Pa.
1989), aff'd, 907 F.2d 418 (3d Cir.1990), to find
recent conditions comparable to those
described in the early large-scale prison
conditions cases in states like Alabama,
Mississippi, and Arkansas.
For these reasons, prisoners' advocates will
argue that prison conditions decrees are not
intended as temporary measures, but bear the
same expectations of permanency as any other
injunction. Constitutional compliance, they
will argue, is not evidence that the decree
should be vacated, but evidence that it is
safeguarding constitutional rights against the
ever-present dangers of overcrowding,
inadequate funding, and administrative
neglect. While enforcement mechanisms like
reporting requirements or the appointment of
a monitor may be limited in time, substantive

injunctive terms are presumptively permanent. See Battle v. Jtpderson, 788 F.2d 1421, 1428
(10th Cir.1986) (c~e dismissed but prior
orders and injunctions remained in force upon
a finding of no current constitutional
violation).
In many cases, these arguments will be
supported by the structure or language of the
decree itself. For example, if a decree contains
some provisions with explicit time limitations
and other provisions without them, plaintiffs
will plausibly argue that the latter provisions
were intended to operate indefinitely. This
argument should be particularly effective in
the case of negotiated judgments. See
Halderman v. PennhurstState School and
Hospital, 901 F.2d 311, 317-21 (3d Cir.1990), cert.
denied, 11l S.Ct. 140 (1990).
If Dowell does have some application to
prison cases-or as long as the question
remains open-post-judgment proceedings may
become more intrusive and formal, and good
will may be a casualty. The prudent plaintiffs'
lawyer will anticipate a motion to vacate
based on Dowelland will therefore closely
scrutinize defendants' performance for noncompliance and attempt to document in court
every manifestation of noncompliance, in
place of the present widespread practice of
resorting first to informal means of resolution.
Under Dowen therefore, post-judgment
practice may by necessity become more formal
and adversarial, and direct court involvement
may become more frequent.

Punitive Segregation
Once more, a federal court has found that
conditions in a punitive segregation unit
violated minimum standards of decency and
therefore constituted cruel and unusual
punishment. In LeMaire v. Maass, 745 F.Supp.
623 (D.Or.1990), the district judge condemned
the excessive use of physical restraints, the
punitive use of "controlled feeding status" and
"strip status," the denial of recreation to many
prisoners, and other aspects of confinement in
the Oregon State Penitentiary's Disciplinary
Segregation Unit (DSU).
The LeMaire opinion is striking for its
acknowledgment that the level of hostility
between staff and inmates in many segregation units is so great that staff misconduct, as
THE NATIONAL PRISON PROJEO JOURNAL

well as inmate misconduct, is not only possible
but is likely. The court observed:
Working under the constant threat of
unpredictable assaults and bombardment
with feces, urine, spiUood, and any available
movable object as DSUstaffdoes, is a
nightmare. It is understandable that in such
a hostile, violent and confrontational
environment inmates who are locked down
and isolatedfor almost 24 hours a day,
sometimesfor years on end, in tiny, damp,
smelly cells, with absolutely nothing to do, will
strike outany way they can. It is understandable thatguards will retaliate.
745 F.Supp. at 623.
This approach contrasts sharply with many
other prison conditions decisions, including
several by the Supreme Court, that have
emphasized the risk of dangerous misconduct
by prisoners but have ignored the equally real
risk of abuse of power by prison staff. See, e.g.,
Hudson v. Palmer, 468 U.S. 517 (1984) (holding
that prisoners have no Fourth Amendment
protection against abusive cell searches).
Restraints. Oregon regulations permit the
use of mechanical restraints in order to
control certain behavior, but require that the
re-straints be removed "as soon as it is
reasonable to believe that the behavior leading
to the use of restraints will not immediately
resume." Id. at 632 (quoting regulations). The
court found that in practice prisoners were left
in full mechanical restraints for days at a time
after acts of misconduct, without any
continuing emergency and without medical
justification. It observed: "Guards exposed to
constant abuse by inmates cannot be expected
always to make reasonable, controlled
judgments about the appropriate response to
inmate misbehavior." Id.
Food. Oregon regulations also permit serving
inmates meals of "Nutraloaf," which consists
of leftover foods ground up and baked into
bricks, when they throw or misuse food,
human waste, or utensils. Astate court had
previously upheld those regulations as facially
valid, and the federal court agreed that they
are a "valid, temporary safety measure when
[Nutraloaf's] use is directly connected to the
misconduct it is intended to curb." Id. at 633.
But it found that the use of Nutraloaf was far
more extensive; the record showed that
inmates were routinely kept on Nutraloaf
feeding for seven days regardless of whether
their disruptive behavior continued or
stopped, and some inmates were subjected to
Nutraloaf for misconduct that had little or
nothing to do with the misuse of food or
utensils. The court concluded that Nutraloaf
was being used as punishment, and that such
use violated the Eighth Amendment. The court
also concluded that by limiting the use of
Nutraloaf to particular purposes, and by
forbidding its use as punishment, state
THE NATIONAL PRISON PROJEG JOURNAL

regulations created a liberty interest. The use
of Nutraloaf as punishment therefore denied
due process. In reaching that conclusion, the
court observed once more that "in a hostile,
explosive environment, there is a high
likelihood of an erroneous deprivation." Id.
at 636.
",
Clothing, Furnishings, Property. The courq~
concluded that defendants' use of "strip">
status" was unconstitutional, for the same;;'
reasons it cited in connection with Nutraioaf
and mechanical restraints. Strip status C§»Sists
of the removal of all clothing, bedding,and
other property including toilet paper and
writing materials until such time as the
guards decide in their discretion that the
prisoner has "earned it back." Id. at 639.
Communication ofMedical Needs. The use
of "quiet cells" with double steel doors was
found unconstitutional. The court agreed that
it is legitimate to separate "noisy, disruptive
inmates" from the rest of the unit population,
but not to isolate them so completely from
staff that they cannot call for assistance in
the event of medical problems.
Exercise and Recreation. The imposition of
long periods of "loss of exercise privileges,"
resulting in segregation inmates being out of
their cells three times a week for showers
only, deprived the plaintiff of "outdoor
exposure and exercise opportunities adequate
to prevent physical and mental deterioration."
Id. at 643. The plaintiff had accumulated
almost four years of this punishment.
An injunctive judgement was entered in
January 1991, and prison officials have filed a
notice of appeal.

Environment-Hazardous
Substances and Conditions
Several federal courts have addressed the
constitutionality of subjecting prisoners to
"second-hand" cigarette smoke. Most recently,
a three-judge panel of the federal court of
appeals for the Tenth Circuit has held that a
policy of "permitting the indefinite doubleceiling of smokers with nonsmokers against
their expressed will can amount to deliberate
indifference to the health of nonsmoking
inmates...." Clemmons v. Bohannon, 918 F.2d
858 (10th Cir. 1990). By contrast, other federal
courts have held that subjection to secondhand smoke does not violate "evolving standards of decency" at the present time, though it
may in the future. Wilson v. Lynaugh, 878 F.2d
846,851-52 (5th Cir.1989), cert. denied, 110 S.Ct.
417 (1990); Caldwell v. Quinlan, 729 F.Supp. 4
(D.D.C.1990); Gorman v. Moody, 710 F.Supp.
1256,1259-64 (N.D.Ind.1989).
The Tenth Circuit did not merely disagree
with the outcomes of the other cited cases. It
accused them of asking the wrong question in
their Eighth Amendment analysis:
The dispute among these courts has centered

on the necessary extent ofpublic recognition
that long term exposure to ETS[environmental tobacco smoke] in close quarters is
potentially damaging to one's health, and how
much this recognition mustpercolate
throughout our social institutions and
become manifest in legislative enactments
before a court may invoke the "evolving
standards ofdecency that mark the progress
Ofa maturing society." We believe this type of
inquiry is unnecessary. The extensive line of
cases recognizing a prisoner's constitutional
right to a "healthy habilitative environment~ ..
reflects a longs'&ndingjudicial recognition
that exposing '4:~risoner to an unreasonable
risk ofa debilitating or terminal disease does
indeed offend these "evolving standards of
decency. "[Citations omitted.]
Thus, the question for the court is whether
infacta challenged practice "poses an
unreasonable risk of harm to an inmate's
health," regardless of social attitudes and
legislative responses to that practice. The
court suggested an appropriate basis for
comparison: "whether the type of exposure
potentially faced by a nonsmoking prisoner
double-celled with a smoker constitutes a
health hazard at least as significant as denial
of exercise," which has been found to violate
the Eighth Amendment in numerous decisions
(including LeMaire, discussed above).
The Clemmons case has been accepted for
rehearing en banc by the full ten-judge
appellate court.

Crowding/Remedies/
Pre-trial Detainees
Arecent decision from the Supreme Judicial
Court of Massachusetts in a jail crowding case
demonstrates that court's willingness to apply
federal constitutional guarantees in a manner
similar to the federal courts.
In Richardson v. Sheriff ofMiddlesex
County, 407 Mass. 455, 553 N.E.2d 1286 (Mass.
1990), the court upheld the trial court's
conclusion that crowding in the Middlesex
County jail constituted unlawful punishment
of pre-trial detainees. In a familiar scenario,
the jail-a modern structure constructed with
a capacity of 161-had at times held as many
as 303 inmates, and the overflow was housed
in visiting rooms, common areas, dayrooms,
and other makeshift housing areas.
The appeals court agreed that it is unconstitutional to require inmates to sleep on the
floor, with or without mattresses, or to hold
them in makeshift dormitories without access
to toilets and showers or with inadequate
toilet and shower facilities. (The trial judge
had cited some areas with only two toilets and
one shower for sixty prisoners.) The court also
agreed that crowding inmates into common
areas-particularly those designed as open or
recreational space for inmates-was unconstiWINTER 1991

7

tutional, as was double bunking in holding
cellsthat were not only small but contained
benches that further reduced the floor area.
Although the trial court had relied in large
part on state regulations, the appeals court
preferred to focus on the inmates' constitutional claims, relying almost entirely on
precedent from the federal courts. But it
concluded that the state regulations were
entitled to "some weight" in assessing the
standards of decency against which constitutional claims are measured.
The court rejected the sheriff's argument
that the jail's crowded conditions were
justified by a legitimate governmental
purpose, "to keep the facility operating so as to
detain unbailworthy defendants awaiting
tria!." 553 N.E.2d at 1293. It echoed the
sentiment of a federal court that
[tjhe only conceivablepurpose overcrowding...serves is to further the state's interest
in housing moreprisoners without creating
moreprison space. This basically economic
motive cannot lawfully excuse the imposition
on thepresumptively innocent[pretrial
detainees]ofgenuineprivations and hardship
over any substantialperiod of time....
553 N.E.2d at 1293, quoting LaReau v.
Manson, 651 F.2d 96, 104 (2nd Cir. 1981).
For these reasons the court affirmed the
trial judge's imposition of a population cap, as
well as his orders to comply with state
regulations with regard to bathroom facilities.
But it displayed the same reluctance as have
federal courts to intervene directly and
forcefully in criminal court practices and the
same concern for protocol if such intervention
becomes necessary. Thus, it rejected the
plaintiffs' request to direct special court
sessions for purposes of bail review, without
excluding the possibility that such an order
might ultimately be appropriate-but only
after the trial judge "request[ed]" the relevant
administrative justice to institute special
sessions and if necessary "sought" the
assistance of the Chief Administrative Justice
of the Trial Court.

informed consentdoctrine has becomefirmly
entrenched in American tort law....
The logical corollary ofthe doctrine of
informed consent is that the patientgnerally
possesses the right not to consen~ that is, to
refuse treatment. "
At 241: "The principle that a competent
Religion
". person has a constitutionally protected liberty
EmploymentDivision v. Smith, 494 u.s. --' ...,. interest in refusing unwanted medical treat110 S.Ct.1595, 108 L.Ed.2d 876 (1990). At 886:
. " ment may be inferred from our prior decis"...[T]he right of free exercise does not relieve.: .
ions." At n.7: The right is better analyzed as a
an individual of the obligation to comply an4;11
Fourteenth Amendment liberty interest than
as part of a "generalized constitutional right of
'valid and neutral law of general applicability
on the ground that the law proscribes (or
privacy." The Court\ssumes that the Conprescribes) conduct that his religion prescribes
stitution would gr,ant a competent person "a
(or proscribes).'" (Citations omitted.)
constitutionally protected right to refuse lifeOne court has already suggested that this
saving hydration and nutrition" (242), but holds
non-prison decision has "cut back, possibly to
that states may require proof by clear and conminute dimensions, the doctrine that requires
vincing evidence that the incompetent person
government to accommodate, at some cost,
would have wished to exercise that right.
minority religious preferences: the doctrine on
which all the prison religion cases are
founded." Hunafa v. Murphy, 907 F.2d 46, 48
U.S. COURT OF APPEALS
(7th Cir.1990).
achieve the desired result. Only if such
sanctions failed to work should contempt
sanctions against local legislators have been
considered. The court relies on the same
considerations that underlie legislative
immunity in reaching this conclusion.

Mental Health Care
Remedies/State-Federal Comity

U.S. SUPREME COURT

Missouri v.]enkins, 495 u.s. --' 110 S.Ct.
1651,109 L.Ed.2d 31 (1990). The imposition of a
tax increase by the district court to fund a desegregation remedy was an abuse of discretion.
It should have ordered the school district to
levy the tax and enjoined the operation of
contrary state laws. At 54: "The difference
between the two approaches is far more than
a matter of form. Authorizing and directing
local govern-ment institutions to devise and
implement remedies not only protects the
function of the institutions but, to the extent
possible, also places the responsibility for
solutions to the problems of segregation upon
those who have themselves created the
problems."
The requirements of a tax increase in the
aid of ending constitutional violations did not
exceed the court's equitable powers or Article
III jurisdiction and did not violate the
Eleventh Amendment. At 58: "Even though a
particular remedy may not be required in
every case to vindicate constitutional
guarantees, where (as here) it has been found
that a particular remedy is required, the State
cannot hinder the process by preventing a
local government from implementing that
remedy." The opposite result would be
contrary to the Supremacy Clause.

Contempt

Medical Care/Theories-Due Process

Other Cases
Worth Noting
Spallone v. United States, 493 u.s. --' 110
S.Ct. 625, 107 L.Ed.2d 644 (1990). It was an
abuse of discretion to impose contempt
sanctions directly on Yonkers City Council
members for failing to vote for desegregation
relief when there was a reasonable probability that sanctions against the city itself would
8 WINTER 1991

Cruzan v. Director, Missouri Dept. ofHealth,
497 u.S. --' 110 S.Ct. 2841, 111 L.Ed.2d 224
(1990). At 111 L.Ed.2d 236:
"This[common law] notion of bodily
integrity has been embodied in the requirement that informed consent is generally
reqUiredfor medical treatment.... The

Thomas S. byBrooks v. Flaherty, 902 F.2d 250
(4th Cir.1990). In a class action dealing with
the mentally retarded in psychiatric hospitals,
the district court properly applied the Youngberg v. Romeo standard by declining to weigh
the decisions of treating professionals against
the testimony of plaintiffs' experts to decide
which of several acceptable standards to apply.
Rather, it found that many of the treating
professionals' decisions had not been implemented. It also found that many of their decisions departed from accepted standards of
treatment, based on the Secretary's written
standards and the plaintiffs' and defendants'
expert testimony concerning drug use, restraint,
and habilitation.
At 253: "Relevant accreditation is prima
facie evidence of constitutionally adequate
conditions." However, evidence of deficiencies
found by the Joint Commission on Accreditation of Hospitals and by a federal agency
rebutted this presumption even though JCAH
had accredited the institution.

Attorneys' Fees and Costs
Plyler v. Evatt, 902 F.2d 273 (4th Cir.1990).
The court upholds fee awards at South
Carolina rates for attorneys from the National
Prison Project. Where plaintiffs prevailed in
the underlying litigation but lost a motion to
modify and permit double-celling, they were
entitled to fees for defending the modification
motion, since it was "intertwined with the
original claims" and counsel were under "clear
obligation to make the defensive effort." (281)

Procedural Due Process
Meador v. Cabinetfor Human Resources, 902
F.2d 474 (6th Cir.1990). Astate statute proTHE NATIONAL PRISON PROJECT JOURNAL

viding that "[t]he cabinet shall arrange for a
program of care, treatment and rehabilitation
of the children committed to it," and that "the
cabinet shall be responsible for the operation,
management and development of the existing
state facilities for the custodial care and rehabilitation of children," created an "entitlement to protective services" protected by due
process. The plaintiffs' allegation was that
they had been sexually abused in a foster
home (apparently an institution).

Procedural Due ProcessDisciplinary Proceedings/Discovery
Wagner v. Henman, 902 F.2d 578 (7th Cir.
1990). The plaintiff was convicted of murder
in a prison disciplinary proceeding. The
district court erred in requiring total
disclosure of an FBI report to plaintiff's
counsel without considering the risk of
inadvertent disclosure of information that
might identify confidential informants and
without looking for ways in which such risk
could be avoided, such as redacting the
documents.
Publications/Qualified Immunity
Allen v. Higgins, 902 F.2d 682 (8th Cir.1990).
The plaintiff was denied the right to receive a
government surplus catalog and a jury
awarded him $1.00. The responsible prison
official made this decision without examining
the catalog, which was shown at trial not to
pose a security threat. He was not entitled to
qualified immunity since, without examining
the catalog, he could not have reasonably
assessed whether his conduct violated clearly
established law, and its exclusion did not
serve legitimate penological interests.
False Imprisonment
Lee v. Dugger, 902 F.2d 822 (11th Cir.1990).
The plaintiff was held for an extra year
because prison officials refused to give him
the benefit of an intermediate state appellate
court decision regarding the proper calculation of "gain time." Instead, they argued in his
state habeas pr~ceeding in the same court that
the earlier decision was wrong. One judge held
that defendants were entitled to qualified
immunity because one case, decided by an
intermediate appellate court, "falls short of
the clarity of the law required to defeat a
defense of qualified immunity," and defendants were "entitled to attempt to persuade the
same court that its prior decision was in error."
Asecond judge, concurring specially, argued
that the plaintiff's rights were not violated
because he received the process due through
his state court habeas petition. Judge Johnson,
dissenting, argues that the statutes created a
liberty interest, the first court decision clearly
established the law, and pre-deprivation
process was required.
THE NATIONAL PRISON PROJECT JOURNAL

Mental Health Care
Societyfor Good Will to Retarded Children
v. Cuomo, 902 F.2d 1085 (2d Cir.1990).Judge
Weinstein's latest findings of unconstitutionality in this case do not meet Rule 52's
requirement that facts be found "specially."
Findings of unconstitutionality from
proceedings made seven years earlier cannot
be relied on to support the present findings
because the district court acknowledged that:~
there had been "enormous improvements.",.,'
A"sweeping grant of relief" could not be .'~j:;
justified absent any specific findings that/~
patients had regressed as a result of present
conditions,'
The district court also departed from the
Youngberg v. Romeo standard by failing to
determine whether treatment and conditions
actually departed from accepted professional
judgment. "The court instead misused expert
testimony by treating it as evidence of
alternative choices against which the
institution's treatment should be compared."
(1089) Experts are to be used only to help the
court determine what the minimum professional standard is.
Relief requiring population reduction and
community placement was not narrowly
tailored. The court should not have granted
injunctive relief "without first identifying the
specific constitutional violations that each
part of the ordered remedy would cure."
(1090) The conclusory statement that
"administrative limitations" made it impossible to remedy the violations without
reducing population was insufficient;
defendants should have a chance to cure the
"administrative limitations." Court-ordered
community placement is a remedy of last
resort.
Use of Force/Medical CareStandards of Liability
Simpson v. Hines, 903 F.2d 400 (5th Cir.
1990). The decedent was arrested and put in a
celL He brandished marijuana, and refused to
give it or his other property up. Ten officers
came into the celL Simpson wound up
handcuffed and dead from asphyxia caused
by neck trauma.
The court treats this as a case arising
"before or during arrest" and therefore
governed by the Fourth Amendment, without
any discussion of where arrest ends and
detention begins.
Afactual issue precluding summary
judgment was created by the presence of ten
officers, the use of a neckhold, an officer's
sitting "astraddle" the plaintiff (i.e., on his
chest), the nature of the injury, and a tape
recording of the decedent's screams and cries
for mercy along with "statements from which
the trier-of-fact might infer malice."
Evidence that the decedent was uncon-

scious when the officers left the cell and that
they knew he had heavily exerted himself
during the struggle and was under the influence of drugs, combined with the officers'
callous statements on the tape, supported an
inference of deliberate indifference, as did the
failure of another officer, who later observed
that the decedent was not moving, to summon
medical help.
Pre-trial detainees are owed a duty of "reasonable medical care unless the failure to supply that care is reasonably related to a legitimate governmental objective." (404) The court
does not explain 'tow this standard differs from
the deliberate inA'ifference standard.

.'"

Pre-Trial Detainees/Suicide
Prevention/Municipalities/Training
Burns v. City Of Galveston, Texas, 905 F.2d 100
(5th Cir.1990). Here is yet another case of a
drunken arrestee who behaved bizarrely and
then killed himself. There was evidence that he
had threatened to kill himself if he didn't get a
cigarette, but the officers testified that because
of other noise in the jail they didn't understand
what he was yelling. Another prisoner called
out to the officers when he saw the decedent
hanging, and they told him to be quiet.
An alleged failure to make hourly cell checks
required by city policy could not establish
municipal liability because the decedent killed
himself less than an hour after admission.
The failure fully to implement psychological
screening procedures contained in a.municipal
manual did not support municipal liability
because there is no "absolute right to psychological screening." (104) Officers need not be
trained to screen for suicidal tendencies; this
"requires the skills of an experienced medical
professional with psychiatric training."
Religion-PracticesBeards, Hair, Dress
Benjamin v. Coughlin, 905 F.2d 571 (2d Cir.
1990). Equal protection claims based on
disparate treatment of religious groups are
evaluated by a reasonableness standard similar
to the Turner/Shabazz standard.
Defendants in this class action were precluded from contesting the unconstitutionality
of requiring intake haircuts for Rastafarian
inmates by decisions of the state court of
appeals even though they were rendered in
individual actions, since there was a "substantial overlap" of evidence and argument and
defendants had both incentive and opportunity
to contest the issue. The haircut requirement
was unconstitutional because there was a
nearly costless alternative, tying the hair in
pony tails for an intake photograph.
Protection from Harm
Fruit v. Norris, 905 F.2d 1147 (8th Cir.1990).
The plaintiffs were disciplined for refusing to
WINTER 1991

9

clean out a raw sewage facility without the
protective clothing and equipment called for
by the operations manual. The temperature
was 125 degrees. The district court dismissed
because there was no evidence that the
defendants had actual or constructive
knowledge of serious dangers.
Intentionally placing inmates in dangerous
surroundings violates the Eighth Amendment.
The plaintiffs made out a prima facie case
because common sense suggests that defendants should have known the dangers of
heatstroke and of disease spread through
contact with human waste.

Women/Good Time/Equal Protection
Jackson v. Thornburgh, 907 F.2d 194 (D.C.Cir.
1990). Astatute that grants early release to
prisoners in District of Columbia prisons does
not deny equal protection to D.C. women
offenders who are housed in federal prisons
and do not receive the statute's benefits.
Heightened scrutiny is not applicable because
the distinction is not based on gender but on
place of incarceration, "although its interaction with the District's gender-specific
prisoner-assignment rules clearly make it
disadvantageous to be female." The disadvantaged class does include males, and some
women (those with short sentences) do
benefit from the statute. There is a rational
basis for the distinction in the fact that the
District of Columbia is under a constitutional
obligation to reduce crowding in its prisons.
Protection from Inmate Assault
Wrightv.Jones, 907 F.2d 848 (8th Cir.1990).
The plaintiff was assaulted by other inmates
and beaten for five minutes before guards
intervened. This assault followed a period in
which large numbers of inmates had
congregated in the housing unit and there
were numerous fights. Evidence that the
guards had knowledge of the prior assaults,
had a duty to supervise the housing area, and
had a clear view of the area created a jury
issue under the reckless disregard standard.
The Whitley standard
of "malicious and
...
sadistic" behavior does not apply "because the
guards have not identified a competing
obligation which inhibited their efforts to
protect inmates." (851) The phrase "highly
foreseeable" found in the instructions to the
jury does not impose a standard of mere or
gross negligence; viewed in context, it required
that defendants have had notice of the
danger. "Under our precedents, liability can be
imposed if guards disregard a known risk to
the safety of inmates." (851)
Modification ofJudgments/Administrative Segregation-Death Row
McDonald v. Armontrout, 908 F.2d 388 (8th
Cir.1990). Aclass action challenging death
10 WINTER 1991

row conditions was resolved by a consent
decree. Two years later, defendants sought to
move the unit to a newly built prison and
asked for other modifications consistent with
their implementation plan. Plaintiffs objected
to the reduction of outdoor exercise time from
16 hours to four hours a week; a smaller and
less well equipped yard; greater restrictions on ;;:
religious services; and limited non-legal
'J'
telephone access (one hour a week). These
restrictions were imposed on the highersecurity death row prisoners; those in less
restrictive classifications received more
recreation time and other benefits.
The modifications were properly approved.
The move to a new prison was explicitly contemplated in the original judgment and the
court would have had power to approve it in
any case.

Handicapped/Jury Instructions/State,
Local and Professional Standards
Evans v. Dugger, 908 F.2d 801 (11th Cir.1990).
The partly paraplegic plaintiff was denied
appropriately designed toilet and shower areas
and adequate access to toilet and shower, and
denied adequate exercise and physical therapy.
Denial of adequate care to a disabled
prisoner is to be judged under the Estelle
deliberate indifference standard and not the
Whitley standard, since there was no clash
between treating him and meeting other
legitimate needs.
The district court properly instructed the
jury that compliance with "generally accepted
standards requiring handicapped accessibility"
is not legally required in prison housing, but
such standards may be considered insofar as
they are relevant. The plaintiff had requested
an instruction that noncompliance with the
state statute was evidence of deliberate
indifference and a basis for holding particular
noncomplying officials liable.
Suicide Prevention/Municipalities/
State, Local and Professional
Standards
Popham v. City of Talladega, 908 F.2d 1561
(lIth Cir.1990), aff'g742 F.Supp.1504 (N.D.Ala.
1989). The plaintiff was arrested for public
intoxication. He was emotional, depressed, and
angry. His belt and shoes were taken and his
cell was ordered monitored by TV. After 11:00
p.m., there was no physical monitoring
because there were no guards on duty. The
plaintiff hanged himself with his blue jeans in
a space in the cell out of view of the camera.
Jail suicide cases are governed by a
deliberate indifference standard and the
determination turns on "the level of knowledge possessed by the officials involved, or
that which should have been known as to an
inmate's suicidal tendencies." (1564) "Absent
knowledge of a detainee's suicidal tendencies,

the cases have consistently held that failure to
prevent suicide has never been held to
constitute deliberate indifference." (1564) The
decedent had been jailed before and had not
threatened suicide. The defendants didn't
know that he had tried to commit suicide two
days previously. They didn't know that he was
threatening suicide from his jail cell. The
removal of shoelaces, belts, etc., and the
presence of closed circuit cell monitoring
show the absence of deliberate indifference.

Protection from Inmate Assault/
Statutes of Lim\tations/Qualified
Immunity ..•J
Ayala SerranotiJ." Lebron Gonzales, 909 F.2d
8 (1st Cir.1990). The plaintiff was assaulted by
other inmates and stabbed repeatedly in view
of the defendant officer, who did nothing. A
court awarded him $20,000.
The plaintiff's amended complaint, filed by
counsel, related back for limitations purposes
to the time of filing of the pro se complaint,
which named the defendant's supervisors.
The defendant was not entitled to qualified
immunity where he neither intervened in the
assault nor summoned others to help.
Pre-Trial Detainees/Use of Force/
Medical Care-Denial of Ordered Care
Martin v. Board of County Commissioners
ofPueblo County, 909 F.2d 402 (10th Cir.1990).
The plaintiff was arrested while in the
hospital recovering from a neck fracture and
was moved against doctor's orders.
Pre-trial detainees are entitled to the benefit of the same deliberate indifference standard applied to convicts' medical care. The reasonableness of an arrest involving movement
of an injured person is governed by the same
standard. Physical contact is not necessary to a
Fourth Amendment use of force claim; the
threat of physical coercion may be sufficient.
Defendants were not entitled to qualified
immunity. At 407: "The absence of authority on
all fours with the unusual facts of this case
should not be considered fatal to plaintiff's
claim, in light of the patently insubstantial
character of the distinction upon which defendants' qualified immunity argument rests."
Access to Courts-Punishment and
Retaliation/Work Assignments
Madewell v. Roberts, 909 F.2d 1203 (8th Cir.
1990). Medically disabled inmates were assigned to "inside utility" work (vegetable processing) and made to work at night sitting directly
on a concrete floor. They were excluded from
"Class I" status, a classification which permitted inmates to earn more good time.
Allegations that prison officials retaliated
for plaintiffs' lawsuit by blocking reclassification opportunities and worsening their living
and working conditions raised a factual issue
THE NATIONAL PRISON PROJECT JOURNAL

n

that should not have been decided against
plaintiffs on summary judgment. The manifestations of retaliation need not themselves amount
to constitutional violations. "The violation lies in
the intent to impede access to the courts." (1207)
The plaintiff's allegation that his serious
arthritis was painfully aggravated by sitting
on cold concrete for hours in an unheated
space could support the conclusion that his
work assignment was dangerous to health or
unduly painfuL

Psychotropic Medication/
Qualified Immunity
Bee v. Greaves, 910 F.2d 686 (10th Cir.1990).
The plaintiff received a jury verdict of $100
actual and $300 punitive damages for the
forcible administration of thorazine. The doctor was not entitled to qualified immunity.
The Supreme Court in Washington v. Harper
said it had "no doubt" that the plaintiff had a
liberty interest in avoiding unwanted medication, citing Vitek and Parham v.JR., which
pre-dated the plaintiff's involuntary medication.
Administrative SegregationHigh Security/Cruel and Unusual
Punishment
McCord v. Maggio, 910 F.2d 1248 (5th Cir.
1990). The plaintiff alleged that he was
confined for 23 hours a day in "Closed-Cell
Restriction" in "an unlighted, windowless cell
with only a hole cut in the steel door for
outside access, while water and human waste
sometimes up to ankle high seeped into the
cell from frequently broken fixtures and
pipes," and of being required to sleep on a
mattress on the floor under these conditions.
The magistrate should have made findings of
fact as to the plaintiff's living conditions and
assessed the totality of conditions, despite the
defendants' argument that the facilities "were
old and worn down, but prison officials did
the best that they could given the conditions."
(1250) The State Health and Safety Code is a
"valuable index" of contemporary levels of
decency but is not the only stanl!ard by which
they are judge<\.."Conditions not condemned as
unfit for human habitation in the prison
setting have been held to still amount to a
violation of a prisoner's Eighth Amendment
rights." (1250)
Religion-Practices-Names
Ali v. Dixon, 912 F.2d 86 (4th Cir.1990).
Prison officials' refusal to add the newly
converted plaintiff's Muslim name to some of
his prison records, requiring him to use his old
name when drawing money from his account,
would violate his First Amendment rights in
the absence of any penological justification
for the refusaL The prison's refusal to add the
new name to official correspondence with the
plaintiff would also violate his rights unless
THE NATIONAL PRISON PROJEO JOURNAL

prison officials showed that there was a risk
of misfiling. Defendants' arguments were
addressed to substituting the new name in
their records (which they are not required to
do) rather than adding it.
The continued use of his old name by prison
staff in addressing him did not violate his
rights because of the importance of having
staff know prisoners by name and the interference of name changes with that familiaritfr.·

1990). The District of Columbia Good Time
Act, which limits eligibility for certain good
time credits to those convicted of D.C. criminal
offenses and incarcerated in D.C. prisons, did
not deny equal protection to D.C. offenders
housed in federal prisons because it was
rationally related both to the goal of relieving
crowding in D.C. and the goal of letting the
prison system with actual custody apply its
good time system.

-~_.~.

Service of Process
'::.
Puett v. Blandford, 912 F.2d 270 (9th Ci~}C
1990). At 275:
..
..'[WJe hold that an incarceratedpro se
plaintiffproceeding in forma pauperis is
entitled to rely on the u.s. Marshal for service
Of the summons and complaint and, having
prOVided the necessary information to help
effectuate service, plaintiffshould not be
penalized by having his or her action dismissedfor failure to effect service where the
u.s. Marshal or the court clerk hasfailed to
perform the duties required of them....
If mail serviceproves unsuccessfu4 the
Marshals should be directed to serve the
complaintpersonally.
Suicide
BUffington v. Baltimore County, Md., 913
F.2d 113 (4th Cir.1990). The court rejects
defendants' argument that under DeShaney,
jail officials are not required to take steps to
prevent the suicide of people who have been
civilly committed so they won't hurt
themselves. If the state has taken custody of
someone, its obligations do not depend on the
reason for the custody. The duty of care owed
is the same as that owed to detainees, Le., the
deliberate indifference standard, which does
not require screening for suicidal tendencies
or other preventive measures unless the
defendants know of the individual's suicidal
tendencies. Here, deliberate indifference was
established by the flouting of the jail's suicide
policy despite the knowledge that the
plaintiff was a suicide risk.
Protection from Harm/Environment-Hazardous Conditions and
Substances
Powell v. Lennon, 914 F.2d 1459 (11th Cir.
1990). Afederal prisoner who alleged that he
was housed in an area with an asbestos hazard
and that prison officials refused to transfer
him to an asbestos-free dormitory stated an
Eighth Amendment claim of deliberate indifference to serious medical needs. Defendants
were not entitled to qualified immunity; the
unlawfulness of their actions "should have
been apparent...in light of Estelle." (1464)
Equal Protection/Good Time
Pryor v. Brennan, 914 F.2d 921 (7th Cir.

Habeas Corpus/Access to CourtsPunishment and Retaliation
Clark v. State <.!( Georgia Pardons and
Paroles Board,9i~ F.2d 636 (11th Cir.1990). A
§ 1983 claim th~t"the parole board denied
parole to the plaintiff because he had pursued
litigation against prison personnel is not
barred by the Preiser exhaustion rule as long
as it seeks only damages and a declaratory or
injunctive relief and not release, since it
would not "undermine his conviction."
Administrative Segregation-Death
Row/Modification of Judgments/
Monitoring and Reporting
Thompson v. Enomoto, 915 F.2d 1383 (9th Cir.
1990). Death row inmates at San Quentin
obtained a consent judgment governing
conditions; after various enforcement motions
a monitor was appointed, with powers
including broad access to the premises,
documents, meetings and personnel, the
ability to retain experts or specialists, etc. The
appeals court then held that appointment of a
monitor was not appealable on an interlocutory basis. In subsequent proceedings, the
parties agreed to give prison officials more
latitude to use handcuffs in return for
providing free weights in the yard, and to
permit inmates the use of 4K memory.
typewriters in return for their dismissing a
state court lawsuit. The present appeal stems
from the district court's adoption of several
modifications proposed by the monitor, some
favorable to each side, and its rejection of
their request to vacate the order because their
actions were constitutionaL
At 1388: "Consent decrees have the attributes
of both contracts and judicial acts.... Adistrict
court has the power to modify a consent
decree if experience with the administration
of the decree shows the need for modification
in order to accomplish the primary goals of
the decree."
An order provided that "jurisdiction" would
continue for six months, and "[i]f it appears at
or before the expiration of said six months
that there has been substantial compliance"
with the decree, jurisdiction would not be
extended. During the six months, there was
further noncompliance and an order
continuing the matter for purposes of
negotiating modifications. "Implicit in this
WINTER 1991

11

order was the ruling that there had not been
substantial compliance, that the jurisdiction to
assure compliance was extended, and that the
decree would be modified." (1389) Besides,
after eight subsequent years of litigation it is
too late for the defendants to complain about
it. No distinction is made in this discussion
between "jurisdiction" and "active supervision."
It is also eight years too late for defendants
to dispute that the consent decree applied not
only to inmates in the original death row but
to inmates in the new housing space to which
death row was extended, since they had had
at least one clear opportunity to appeal. The
court's interpretation of the order is law of
the case.
The court refused to interpret Firefighters v.
Stotts as barring the modification, since this
modification did not conflict with any
statutory or constitutional requirement.
The court summarily rejected defendants'
argument that the decree violated the
Eleventh Amendment because it no longer
vindicated substantive federal rights.

DISTRICT COURTS
Medical Care/Handicapped/
Injunctive Relief-Preliminary
Yarbaugh v. Roach, 736 F.Supp. 318 (D.D.C.
1990). The plaintiff has multiple sclerosis. As of
the hearing, about 20 months after the case
was filed, the defendants had not examined
him to establish an appropriate plan for medical services for him; he had not received physical therapy regularly; he had not had a bath
or shower for six months despite his requests;
he routinely received no assistance in changing position in bed or moving between bed and
wheelchair; his manual bed did not raise or
lower; the call button in his room did not work.
In the midst of setting out the deliberate indifference standard, the court observed, "In
the District of Columbia, physicians owe the
same standard of care to prisoners as physicians owe to private... patients generally." (319)
The court granted plaintiff a preliminary
injunction, stating that "it is clear to the Court
that plaintiff is not receiving adequate
medical services." (320)

AIDS
Deutsch v. Federal Bureau ofPrisons, 737
F.Supp. 261 (S.D.N.Y.1990) (Ward,].). The
plaintiff complained of being assigned to a
prison cell with an HIV-positive inmate and
not being warned of his condition. Absent
evidence that defendants had knowledge that
the cellmate might do something to expose the
plaintiff to a risk of infection, they were
entitled to summary judgment on his Eighth
Amendment claim.
12 WINTER 1991

Crowding
Tyler v. United States, 737 F.Supp. 531 (E.D.Mo.
1980). The court increased the population cap
on a local jail from 450 inmates to 481 inmates,
subject to the following requirements:
Staff must be increased by 10%. There must
be no deterioration in food services, clothing
allowances, or availability of medical and
dental treatment. The defendants must submit
a plan for house arrest of detainees, including
"electronic shackling," within 30 days, and for", .
transferring women inmates elsewhere. All r:':;
sentenced inmates must be transferred to sti~:
prison within 10 days after the imposition of
sentence, and military prisoners, persons"
awaiting extradition, and persons charged
with parole and probation violation must be
moved out within 10 days of incarceration.
Defendants must expand their educational
programs. Defendants must submit a plan for
establishment of a drug treatment center in
the jail for detainees.
The court noted the futility of increasing
jail populations and of preventive detention. It
concluded by reminding the defendants that
its orders must be complied with. "Otherwise,
the jails must be closed."

the loss of most program space, serious violence, deficiencies in food services, maintenance, fire safety, and medical services constitutes "an emergency situation screaming for
instant action."
The defendants have already been found in
• contempt. Now they are found in "continuing
~'contempt." They are ordered to:
\ (a) BailProjects: maintain a bail fund of
$200,000 to bail out all indigent detainees with
-bail of $10,000 or less. The court notes that
numerous prisoners had been bailed out with
the last batch of contempt fines. (1266)
(b) Good Time, Relfase ofPrisoners. give all
sentenced prisoners.$> days of expedited good
" expiration dates, and,
time off their maxj;mum
contrary to state law, off their parole
eligibility dates;
(c) Good Time, Release ofPrisoners. give
additional 90-day good time awards every 30
days until all sentenced prisoners are out of
the prisons in question;
(d) Crowding. limit the populations of the
prisons to specified numbers;
(e) Monitoring and Reporting, Contemp~
supply monthly reports on their daily
population, which may subject them to
further orders fining them $50 a day per
Medical Care-Standards of Liability/
excess prisoner;
(f) Medical Care-Examinations: perform
Personal Involvement and
intake medical screening within seven days of
Supervisory Liability
Kaminsky v. Rosenblum, 737 F.Supp. 1309
incarceration, and read TB tests between 48
(S.D.N.Y. 1990). Aprisoner died after 16 months
and 72 hours after their administration;
of allegedly inadequate medical care. He had
(g) Fire Safety. assign staff to fire safety
multiple illnesses, including AIDS and PCP,
duties, properly maintain all fire detection
which were diagnosed at autopsy.
and suppression equipment, and have them
The court notes the Second Circuit's
inspected both by institutional staff and State
reluctance to uphold summary judgment in
Fire Marshal personnel;
such cases and states that it "has provided
(h) Crowding. separate beds in dayrooms
instruction to the district courts that
and dormitories by unobstructed 36-inch
determining the difference between malpraccorridors;
tice and deliberate indifference is a factual
(i) Ventilation: balance and repair the
issue which cannot properly be decided at the
ventilation system.
summary judgment staged." Contested issues of
fact in this case include whether defendants
Contempt/Crowding
failed to act on an outside doctor's recommenTasker v. Moore, 738 F.Supp.1005 (S.D.W.Va.
dation of immediate hospitalization, the
1990). The Warden and Commissioner did not
reasons for an "unexplained gap" in medical
comply with a state court order to release the
care during a two-month period when he was
plaintiffs and others to relieve overcrowding.
seriously deteriorating, and whether the
The Governor then ordered them not to apdefendant doctor's statements and letters
pear at a contempt hearing scheduled by the
"indicate a tendency toward deliberate
state judge. Several months later the plaintiffs
indifference." (1317)
were released. The federal court directed a
Evidence that the Superintendent and
verdict for plaintiffs on liability and the jury
Medical Director "were made aware of
awarded them $19,000 and $13,500 in compenKaminsky's condition and his unhappiness
satory damages, respectively, and $100,000
with the care he was receiving at Green
each in punitive damages against the
Haven" raised a factual issue barring summary
Governor.
judgment as to their personal involvement.
At 1010: "It is beyond peradventure that
officials who willfully, intentionally or
Contempt/Crowding/Modification
recklessly keep an inmate in prison past the
date he was ordered released are liable under
of Judgments/Pre-Trial Detainees
section 1983 for infringing upon the inmate's
Palmigiano v. DiPrete, 737 F.Supp. 1257
(D.R.I.I990). Continued crowding resulting in
personal liberty protected by the substantive
THE NATIONAL PRISON PROJEG JOURNAL

due process clause of the Fourteenth Amendment." The defendants' conduct therefore
violated clearly established rights and they
were not entitled to qualified immunity.

Pre-Trial Detainees/Class ActionsCertification of Classes
McKenzie v. Crotty, 738 F.Supp. 1287 (D.S.D.
1990). An inmate released from the jail can
adequately represent a class of jail inmates
seeking injunctive relief. Since the plaintiff
was released the day after the complaint was
filed, the court could not have ruled on the
certification issue before his release, and
under Gerstein the certification relates back
to the filing of the complaint even though no
certification motion was made immediately.
The fact that plaintiff sued for his own
compensatory damages gave him sufficient
personal stake in proving the conditions to
permit him adequately to represent a class.
Use of Force/Training
McKenzie v. City ofMilpitas, 738 F.Supp. 1293
(N.D.Calif.1990). Ajury question was
presented on plaintiffs' failure to train claim
concerning police use of tasers where the
policy included: "supplying tasers to officers
with limited experience; allowing officers to
carry tasers when making investigatory stops;
not requiring officers to holster their tasers;
allowing officers to resort to the use of tasers
immediately after verbal warnings; and,
inadequately· training officers in the constitutional ramifications and health hazards of
using tasers." (1301) Plaintiffs must prove a
causal connection between the failure to have
more or different training and the constitutional violation.
Food/Medical Care-Standards
of Liability
Hodge v. Ruperto, 739 F.Supp. 873 (S.D.N.Y.
1990). Allegations that the plaintiff was
deprived of food and water for two-and-ahalf days, that he had to sleep on a steel frame
without a mattress, that the "sanitation
facilities" were"so filthy he could not use
them, and that he was denied medical care
stated constitutional claims.
The arresting officers could be held liable
for removing the plaintiff from a hospital
before his x-rays could be examined and his
injuries treated. Adetainee's medical care
rights are "at least as great" as those afforded a
convicted prisoner.
Protective Custody
Madden v. Kemna, 739 F.Supp.1358 (W.D.Mo.
1990). The plaintiffs were transferred from
Colorado to Missouri pursuant to contract and
put in protective custody as they requested, but
were not granted the "substantial equality" of
privileges relative to general population
THE NATIONAL PRISON PROJECT JOURNAL

inmates that Missouri regulations required for
protective custody inmates. (They were put in
a disciplinary segregation unit and treated
more or less accordingly.) "Neither a security
problem nor shortage of resources (except as
self-inflicted)" was cited in justification.
The regulation requiring "substantial
~,
equality" of privileges is "sufficiently~.
mandatory and sufficiently definite" to creat.t?
a liberty interest, and the plaintiffs were . 1
denied it without due process. They are
entitled to a preliminary injunction.

Medical Care-Standards of Liability
Lavoie v. Town ofHudson, 740 F.Supp. 88
(D.N.H.1990). Whether police officers violated
the rights of the decedent, whom they had
shot, to obtain medical care depends on
whether they "used reasonable professional
judgment" when they called an ambulance and
dealt with medical personnel. ("Cf Youngberg
v. Romeo.") An allegation that an officer was
told not to describe the decedent's injury in
calling the ambulance, that only certain paramedics were allowed to attend the injured
man, and that his wife was not permitted to
accompany him or told where he was being
taken, stated a deliberate indifference claim.
Attorneys' Fees and Costs/
Monitoring and Reporting
Hadix v.johnson, 740 F.Supp. 433 (E.D.Mich.
1990). Plaintiffs' counsel in a prison case are
entitled to fees for monitoring activities based
on having prevailed in the underlying
litigation. The fact that some of their work
was done in a related case to which some
issues had been transferred did not mean fees
could not be recovered in this litigation.
Communication with Media/
Federal Officials and Prisons
Martin v. Rison, 741 F.Supp.1406 (N.D.Calif.
1990). The plaintiff wrote articles about
prison life for the San Francisco Chronicle for
two years and got paid for them. They were
run under his by-line. This violated Federal
Bureau of Prisons regulations, but no one did
anything until he wrote an article called "The
Gulag Mentality." He was then put in
administrative segregation and transferred. He
continued to write and be published under a
preliminary injunction.
The court upholds Bureau of Prisons
regulations providing that an inmate may not
"direct a business" and may not "receive
compensation or anything of value for
correspondence with the news media. The
inmate may not act as a reporter or publish
under a byline."
The Turner/Abbottstandard, rather than
the Procunierstandard, is applicable even
though the case is about material sent out of
the prison, because it comes back into the

prison in the form of newspaper articles. The
alternative of censoring incoming publications is not required because prison officials
would have to read the publications, and it
would "create an even greater danger to
society-the censorship of the content of daily
newspapers." (1417)

Privacy
Best v. District ofColumbia, 743 F.Supp. 44
(D.D.C.1990). The plaintiffs were rousted out
of bed in Lorton, placed in handcuffs, leg irons
and belly chains and flown to Spokane. On
the way they we)e periodically videotaped by
an officer.
}oR'
Prisoners retain a right to privacy; "they are
not like animals in a zoo to be filmed and
photographed at will by the public or by media
reporters...." (48, quoting Houchins v. KQED).
Some institutional justification must be
asserted to overcome the right. The absence of
public disclosure did not defeat the claim
where the tape had been shown to prison
personnel and there was a possibility of future
disclosure.
Protective Custody
Griffin v. Coughlin, 743 F.Supp.1006
(N.D.N.Y.1990). T\le conditions of protective
custody confinement at Clinton, more
restrictive than at other New York State
prisons, did not deny equal protection because
the plaintiffs did not show the irrationality of
the restrictions. Defendants justified restrictions on recreation, programming, access to
inmate law clerks, etc., by citing reasons of
cost, staffing problems, and security threats.
Defendants' legal access scheme, a twobook-a-day cell delivery system supplemented
by written communication with law clerks,
was inadequate because of the lack of face-toface communication with law clerks, the fact
that two-thirds of the clerks were not trained,
and the relative unavailability of the
supervising officer. The cell delivery system
was not adequate because inmates did not
have access to a "basic library," and in addition there were delays in delivery of books,
sometimes the wrong books were delivered,
they couldn't get Shepard's, and the clerks
didn't always do their Shepardizing correctly.
The denial of confidential discussion, in a
room apart from their cells, with priests,
chaplains, or other religious advisers, violated
the Free Exercise Clause. Defendants put forth
no justification for the denial and there was a
room available for such meetings.
Food/Length of Stay
Adams v. Kincheloe, 743 F.Supp.1385 (RD.
Wash. 1990). The five-day disciplinary restriction to a nutritionally adequate but unappetizing "nutra-Ioaf" for throwing something at
another inmate did not violate the Eighth
WINTER 1991

13

Amendment. The court stressed the short time
period and the fact that the plaintiff had no
demonstrable adverse physical reaction.

FEDERAL RULES
Protective Custody/
Class Actions/Damages
Williams v. Lane, 129 F.R.D. 636 (N.D.IlL
1990). The court determined after trial that
the plaintiff class of protective custody inmates had established the predicate for compensatory and punitive damages in an amount
to be determined later.
Class certification under Rule 23(b)(2) can
support an award of damages as long as
injunctive relief was also appropriate. Class

compliance." The court distinguishes its previmembers were entitled to recover damages
through the post-judgment date on which the
ous denial of discovery on the ground that this
request addresses a "more narrow, discrete inciSpecial Master found that defendants had
substantially complied with the remedial
dent, involving an acknowledged violation." •
order. Class members may recover damages
incurred after the court's decision if the
John Boston is a staffattorney at the
constitutional violations continued. Damages
Prisoners'Rights Projec~ Legal Aid Society
';} ofNew York. He regularly contributes this
may extend backward five years beyond the
': ~ column to the NPPJOURNAL.
filing of the complaint where the statute of
limitations was five years.
A

Monitoring and Reporting/Discoverj;:
Handschu v. Special Services Division, 131 :;.!f
F.R.D. 50 (S.D.N.Y.1990). At 52: "[C]onsent orders
do not deprive litigants of their right to claim
disobedience with [sic] their terms, or in appropriate circumstances to obtain discovery into

'Some courts have held that modifications may be
obtained in institutional litigation under a more
flexible standard as long as they are not "in
derogation of the prim~FY objective of the decree."
New York State Assn. /ol' Retarded Children v. Carey,
706 F.2d 956, 969 (2d Gfr.), cert. denied, 464 U.S. 915
(1983). That rule obvibusly has no application when
the defendants are trying to get the decree vacated
altogether.

Judge Orders Changes at
Virginia Penitentiary
Cites Fire, EnvironmentalHazards Weeks BeforePrison Closes

oncerned about fire safety and
environmental health at the
Virginia State Penitentiary, United
States District Judge Robert R. Merhige Jr.
recently ordered major changes at the
190-year-old prison, just weeks before it
officially closed.
While the judge declined to order that
the institution close immediately, he did
order prison officials to repair exposed
electrical wiring, to properly maintain
fire exits, and to station officers in housing areas and the infirmary on a roundthe-clock fire watch. An October tour by
a fire safety inspector uncovered numerous hazards which posed serious risk of
injury or death to prisoners and staff.
While saying tiJ.at he was pleased with
some of the changes the state had made,
the judge put state officials on notice
that he and/or the ACLU could inspect
the prison on 12 hours' notice to ensure
compliance.
The court order resulted from a
lawsuit filed in September of 1990,
Congdon v. Murray, by attorneys from
the National Prison Project of the
American Civil Liberties Union and the
Virginia ACLU on behalf of all prisoners
confined at the Penitentiary. "Health,
safety, and lives are in imminent danger,"
alleged the lawsuit, and prison officials'
"failure to provide basic fire safety and
environmental health and safety

C

14 WINTER 1991

measures subjects prisoners to lifethreatening conditions resulting in
cruel and unusual punishment prohibited by the Eighth and Fourteenth
Amendments" to the U.S. Constitution.
While attorneys for the Commonwealth told Judge Merhige they would
not represent to him that the Penitentiary was a model institution, they
denied that it was unconstitutional.
In the November 21, 1990 ruling, the
state was also ordered to:
· clean showers and cells daily;
· have a certified pest control
technician regularly set and maintain
rodent traps in the rear of the food
service area;
· repair or cover broken,and missing
windows;
· not permit any prisoner to stay more
than four hours in a cell with a broken
toilet or sink.
The penitentiary officially closed on
December 14. Most prisoners at the
Richmond institution, the oldest penitentiary in the country, had been on lockdown status since August 1988. They
were confined to their cells 22-1/2 hours
a day, six days a week, and locked in a
full 24 hours a day on the seventh day.
They had been double-bunked since
March of that year in cells so small that
the man in the top bunk was unable to
sit up.
Each cell had to be unlocked individually, dangerously slowing evacuation in
case of fire. Also, the building offered
only one means of egress.

In Congdon v. Murray, U.S. Judge Robert
R. Merhige Jr. ordered a 24-hour fire
watch at the Virginia Penitentiary as part
of a series of fire safety measures.

Original Petition
Written By Prisoners

In May of 1990 Cornelius James, a
prisoner at the Penitentiary, sent the
National Prison Project a copy of a
petition he had drawn up, signed by 104
inmates, asking Commonwealth officials
to "cease unconstitutional prison
practices in B-Building." He asked the
Prison Project to intervene on their
behalf. After receipt of James' petition,
NPP staff visited the facility in July of
1990. They found conditions to be
intolerable. Shortly thereafter, Alvin J.
Bronstein, executive director of the
Prison Project, wrote Department of
Corrections director Edward Murray,
calling the Penitentiary "the most
shameful prison in America," and
likening it to a 19th century dungeon.
THE NATIONAL PRISON PROJECT JOURNAL

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u
Q2

Were it not for a recent lawsuit challenging squalid and unsafe conditions, the 190-year old Virginia Penitentiary might still
be in use today. Instead, the facility closed in December 1990.

Neither Mr. Murray nor anyone else in
the Department responded to the letter.
Bronstein called on prison officials to
end the two-year lockdown and improve
environmental and sanitary conditions,
or close the prison down.
The lawsuit was the latest in a long
series of attempts by private citizens and
concerned organizations to bring
pressure to bear on the Department of
Corrections to close the Penitentiary or,
at the very least, to improve conditions.
An active forum of local religious leaders
toured the antiquated prison in 1989,
characteriZing liVing conditions there as
"inhumane and immoral." In a letter to
the official state Commission on Jail and
Prison Overcrowding, the religious group
stated its fear for the "immediate health
and safety of the inmates, prison guards,
and administrators at the Virginia State
Penitentiary. We are even more concerned for the future health and safety
of the Commonwealth; such inhumane
conditions hardly prepare offenders to
become productive members of society
when they are released."
Attempts by Prison Project lawyers to
reach out-of-court agreement over the
THE NATIONAL PRISON PROJEO JOURNAL

summer of 1990 with the Attorney
General's office were unsuccessful, and
on September 21, the Prison Project, along
with the Virginia affiliate of the ACLU,
filed suit in federal court on behalf of all
prisoners at the Penitentiary, listing as
representatives of that class of prisoners
Alfred Congdon, Kareem Olajuwon, and
Lloyd Wasloski. Mr. James, author of the
original petition, had since been transferred to Powhatan Correctional Center
and therefore could not be listed as a
named plaintiff.
Shortly after filing the lawsuit, Prison
Project attorneys filed a motion for a
temporary restraining order, asking
Judge Merhige to enjoin defendants from
continuing to confine prisoners at the
Penitentiary "unless certain basic
environmental health and fire safety
measures [were] immediately taken."
The judge ordered an immediate
hearing. On October 12, 1990, NPP
attorney David Fathi told the court that
the Penitentiary was "a fire tragedy
waiting to happen." In the event of a fire,
he warned, "people are going to die." He
again noted the problem with the
individual locking system.

Penitentiary is Finally
Closed in Mid-December

The site has been purchased for $5
million by the Ethyl Corporation, which
has announced no plans for the land,
although it has said that it will raze the
prison.
"The state has been promising for years
now that the Penitentiary is 'just about
to close,' "said Fathi. "It is almost certain
that, without the pressure of the lawsuit,
the Penitentiary would still be open
today, housing prisoners in dangerous
and squalid conditions."
All of the former inhabitants of the
prison have been moved either to other
existing prisons or to the newly built
Greensville Correctional Center, 55 miles
south of Richmond, which will ultimately provide cells for 1,700 men. Two
hundred of those will be isolation cells.
Double-ceIling is planned for 35% of the
remaining cells, which could bring the
capacity to 2,225. The other new prison
awaiting occupancy is the Keen Mountain Correctional Center in Buchanan
County. •
Jan Elvin is editor of the NPPJOURNAL.
WINTER 1991

lS

Third Party Supervision
Bolsters Probation Programs
ver since John Augustus! stepped
forth as a probation volunteer over
100 years ago, volunteers have
offered their guidance and supervision to
offenders on probation. The degree of
involvement that volunteers have been
permitted has changed over the years,
but the kinds of tasks that the volunteers
can perform have remained fairly
constant. The roles of volunteers (or
third party supervisors) can be divided
into three categories: compliance
monitor, advocate, and mediator.2
Compliance Monitor. This role most
closely resembles that of a probation
officer. As a compliance monitor, the
third party supervisor performs many of
the tasks that a probation officer ideally
would, if he or she had a reasonable
caseload. In this role, the third party
supervisor monitors the offender to
ensure compliance with any alternative
sentencing plan requirements that have
been established as conditions of
probation. Depending on the requirements of the specific case, the supervisor
may track the offender's attendance and
level of performance at the workplace or
at a program (e.g., substance abuse
testing, counseling, community service).
He or she may also report on the
probationer's progress (for example, the
number of hours of community service
completed to date) to either the probation officer or to the sentencing judge.
The supervisor may, in addition, periodically visit a program to observe the
offender's participation first-hand. The
compliance monitor is usually committed
to report any in"fraction of the alternative sentencing plan to the judge or
probation officer.
Advocate. As an advocate, the third
party supervisor has the opportunity to
counteract some of the messages of
disapproval and rejection that often
accompany an encounter with the
criminal justice system. The supervisor
can provide support and encouragement
(in the spirit of John Augustus) for the
probationer's efforts toward selfimprovement, and may help with day-today matters and with logistical situations
that arise out of the probationary plan.
The offender may need assistance with
transportation, scheduling, selecting

E

16

WINTER 1991

proper attire, and developing interview
skills, and it may be that the third party
supervisor is the only person able to help;
The supervisor, in this role, is alsow(
available to assist in times of crisis; if he"
or she has been attentive and available
to the probationer, the supervisor could
be the person the probationer turns to in
a crisis.
In the role of advocate, the supervisor
is overtly looking out for the best
interests of the offender.3
Mediator. The third party supervisor
may also negotiate for or speak on behalf
of the offender in case of difficulties
with the probation department, a
community service organization, or a
social service agency, or, in cases
involVing financial restitution, a victim.
Athird party supervisor may be able to
clarify and rectify problems that involve
another party.
How Should a Third Party
Supervisor Be Chosen?
There are four major sources for third
party supervisors: 1) responsible citizens
in the community who know the
offender or the offender's family; 2)
responsible citizens who are not acquainted with the offender or the
family; 3) correctional service agencies
that provide probationary supervision
free of charge; and 4) agencies that
provide the service for a fee.
The advantage in selecting someone
known to the defendant or the family is
that this person already has an established bond to the defendant and is
likely to be committed to the defendant's
success. This type of supervisor usually
performs well in the advocate and
mediator roles, but may find it difficult
to report a violation when acting as the
compliance monitor. In selecting a third
party supervisor from the defendant's
sphere of acquaintances, an attorney or
sentencing professional should attempt
to gauge the potential supervisor's
overall sense of responsibility and
commitment to the offender. It is
practical and strategically wise to select
a third party supervisor who is a
respected member of the community.
Law enforcement officers, clergymen,
PTA preSidents, teachers, coaches, judges,

and civic leaders are usually good
candidates. The position titles of these
community members project images of
respectability because in most cases these
positions are filled by individuals who
possess strong personal attributes. Of
course, not every defendant will have
friends or acquaintances that fall into
these stereotyped categories. Nevertheless, most individuals know someone of
upright character who can be presented
as such. Of course, co-defendants or
convicted felons ~hould not be considered as third par~r. supervisor candidates.
In selecting a!tiird party supervisor
from the realm 'of the defendant's
acquaintances, attorneys should also
consider: 1) the candidate's familiarity
with the criminal justice system; 2) the
candidate's common sense and knowledge of psychology, counseling, or
criminology; 3) how well the potential
supervisor and defendant match up in
terms of personality and background;
and 4) the time the potential supervisor
has to devote to the supervisory task.
Qualities that make up a good "acquaintance supervisor" are the same ones
to look for in a supervisor who does not
know the defendant. Asupervisor of this
type is likely to experience less discomfort in the compliance monitor role than
would the acquaintance supervisor.
However, this same individual, as a
stranger to the offender, may be less
effective in the advocate and mediator
roles. Should the supervisor and offender
fail to get along, it is likely that the only
role the supervisor can effectively take
on will be that of compliance monitor.
The major drawback to this type of
supervisor, however, is that there are
rarely organized ways of locating such
persons willing to perform this kind of
service. Churches and organizations such
as the Salvation Army sometimes yield
candidates, but the attorney or sentencing professional should realize that the
search for this supervisor type will
require some time and effort.
Some community agencies prOVide
third party supervision free of charge. A
potential benefit of this option is that a
judge may feel that strangers can be
more objective than friends. Apossible
disadvantage to going this route is that it
may produce a supervisor who will favor
the "monitoring" role, relegating the
advocate and mediator roles to the
background.
Finally, in some jurisdictions there are
for-profit agencies that provide third
party supervisors. These programs, too,
project an aura of objectivity that may
THE NATIONAL PRISON PROJECT JOURNAL

appeal to the court. However, because
this agency is usually paid by the
defendant, the agency may fear losing a
client if it reports a violation. Asupervisor from this type of agency may have a
financial stake in retaining the client and
thus be less likely to rigorously perform
the compliance monitor role. In addition,
this option is probably least likely to
produce a supervisor who is committed to
the defendant and who will actively
participate in the mediator and advocate
roles. Some courts, however, may prefer it
to the acquaintance supervisor. This
option also becomes more appealing if
viable candidates in the community
cannot be found and if a "no-fee" supervisory program is not available.4
Donald's case
Examining the fictional case of Donald
(a defendant denied probation because
the judge feared there would be inadequate supervision of the probation plan)
presented in David Tracey's sidebar piece,
we can speculate that the inclusion of a

third party supervisor along with the
alternative sentencing plan may have
provided the judge with the confidence to
grant Donald probation. Donald would be
spared the lasting, negative impact of
incarceration and would be provided a
plan with rehabilitative, compensatory, l'
and punitive components. Once on,}
probation, Donald would have to perform
community service, participate in family,
counseling, work a full-time job, and;{~'
attend A~coholics Anony~ous meeti~s.
The third party supervisor would tllen
be in a position to monitor his participation in the plan, provide him with
emotional and logistical support, and
serve as a mediator if needed. As an
advocate, the third party supervisor
would work with Donald to secure
employment-probably the first order of
business. The supervisor would also be
available to mediate difficult situations
for Donald, should they arise. With a third
party supervisor as a part of the probationary plan, considerable burden is lifted
from the probation officer, Donald's

Donald's Story
In a heated encounter, an inebriated
Donald (a fictitious character) slu
patron in a local tavern, andfou
charged with assault and battery.
month earlier, Donald had been c
with committing domestic violence i
incident involving his oldestson. A c
prior convictions revealed that he
been convicted of two charges ofD
While Under the Influence in the
threeyears. After conducting a
background investigation, Don
realized that Donald was an a
who drank heaVily as a reactio
Donald had been laid offfrom h
recently; his resulting depression
periodic outbursts ofanger se
his home life. All Donald's diffic
the law had been precipitated by
abuse. At the sentencing hearing,
attorney detailed his client'spro
presented a comprehensive alter
sentencingplan composed offou
community service, family ther,
employmen~ andparticipation
Anonymous. Thejudge, however,
aware of the limitations ofthep
department: could it implement
effectively monitor this individ
program?Despite theplan'spra
apparent suitabilityfor the offe
Donald's voiced commitment to co
carried inherent risk-risk that th
was not capable of monitoringan
Donald's success in this communi
tionalplan. Without this vitalli

THE NATIONAL PRISON PROJECT JOURNAL

accou,ntable monitor-tnejudge woulti
ortierprobation. He reluctantly sent<
Do#aldto 60 days in the localjail
This troubling profile is an increasi
familiar one for judges,probatiOll offi
treatment professionals and offenders
themselves. In this particular case,the
judge's dilemma resulted fromtheprobaWlll
department's limited resources. The
changing nature and expansion of
probation officers' responsibilities a
prevailing political climate in crimi
justiceJurther complicate the decisi(j
today's judges must make. In Donald's
the plan lacked an individual oragen
shepherd him through the proposed
alternative sentencing plan. The judg
sensed the risk that an offender who
closely supervised in anindividualiz
probation plan often fails. Too often,
however, this abandoning of a sound
punitive alternative only guarantees a
greatedailure for that offender and a
additional financial burden to the pup
The criminal justicesystem needsto
develop and use creative options t
address public safety, punishment,
restitution, deterrence, and rehab
For probation departments, in par
the task is even greater. Saddled
staggering caseloadsand ex(:essive
bureaucratic demands,the
become so stretched
is often forgotten.
E.Tracey

likelihood at succeeding on probation is
increased, and his chances for rehabilitation are substantially improved.
Use of third party supervisors is not
without pitfalls, but if both the individual selecting the supervisor and the
supervisor are aware of potential
problems, they can deal more effectively
with them if they appear, and the
advantages of the third party supervisor
are more likely to be realized.
The benefits, however, that come from
using a third ijarty supervisor greatly
outweigh the, potential difficulties. _
,

'~.i

Michael Couflander is a Criminaljustice
Specialist at Steptoe &Johnson, a 200attorney lawfirm in Washington, D.C
He has testified in federal and state
courts as an alternative sentencing
specialis~ and haspublished other works
about sentencing, crimeprevention and
corrections. David E. Tracey is Clinical
Director ofFamily Advocacy Services,
Inc., in Baltimore, Maryland. For 12
years, he served asprogram director and
chiefof trainingfor The National Center
on Institutions and Alternatives.
The authors would like to thank Jerry Miller
and Herb Hoelter of The National Center on
Institutions and Alternatives for their tutelage
in alternative sentencing.
IProbation's acknowledged founder,John
Augustus was a Boston cobbler who, beginning
in 1841, assisted over 2,000 offenders in an
intensive supervisory capacity.
2A third party supervisor is defined here as
an individual outside of the probation
department who provides additional guidance
and supervision to a probationer.
3Miller characterizes advocacy as "one-Sided,
driven with a point of view, aimed toward
action and, if successful, wide ranging in
outcome." See Miller, ]., (undated) "Advocacy
for Youth in Trouble," National Center on
Institutions and Alternatives, p. 1.
4Volunteers in general, and specifically
volunteers who have worked with probation
departments, have historically come under
fire, often unjustly, for their casual commitment to the tasks at hand and for a lack of
professionalism. The third party supervisor
drawn from the field of acquaintances or from
an agency is not likely to suffer from the
tandem of these two criticisms. The acquaintance supervisor will have a vested interest in
the probationer, and thus will be highly
committed. The supervisor from an agency will
be subject to organizational control and
supervision. The supervisor who is not
acquainted with the offender and who is not
associated with an organization, however, is
potentially vulnerable to both criticisms.
WINTER 1991 17

te
for biting and spitting on police or
corrections officers. In almost every
case, the defendant with HIV has
'"
'CD
been convicted and sentenced to a
Z
long prison term.
a:i
c:
Curtis Weeks, a Texas prisoner
~
iIi
serving a two-year term, was
Gj.~gory Smith, an HIV-irfected prisoner, was
sentenced to life in prison for
sentenced to 25 years i.'l prison for allegedly
allegedly spitting on a prison guard. biting a guard; yet, sciii,htific studies indicate
While Mr. Weeks' case is being
that AIDS and HIV are"not transmitted through
appealed, there are two other
biting and saliva exchange.
prisoners who have been charged
with "attempted capital murder" for
reports from the CDC, fears of contracting
similar incidents.
HIV or AIDS by correctional personnel
Gregory Scroggins, a Georgia resident
have actually abated.
with HIV, was convicted of aggravated
Nonetheless, people with HIV and AIDS
assault with intent to commit murder for
continue to face serious charges of
allegedly biting a policeman during an
attempted murder or assault with a
arrest after police had been called to his
deadly and dangerous weapon for acts
residence to break up a domestic dispute.
that would commonly be treated as
The jury deliberated for three hours; Mr.
routine misdemeanors or disciplinary
Scroggins was sentenced to 10 years in
infractions were AIDS not a factor. The
prison.
seriousness of these charges is comDonald Haines, despondent over his
pounded by the inadequate legal represenillness, was in the midst of a suicide
tation afforded some HIV-positive
attempt when police and paramedics
defendants, many of whom have been
burst into his home. Astruggle ensued
represented by attorneys who suffer from
between the distraught Mr. Haines, who
their own variety of fear of AIDS and who
was bleeding, and the emergency personlack critical knowledge about HIV
nel. Mr. Haines, accused of "intentionally"
transmission and the disease itself. Cases
spraying the paramedics with his blood
have been reported in which courtand biting a policeman, was convicted of
appointed lawyers and public defenders
attempted murder. Mr.'Haines was
have refused to represent HIV-positive
sentenced to 30 years in an Indiana prison. defendants. Some HIV-positive defendants
These cases stand in contradiction to
do not have the financial resources to hire
the latest scientific studies and transmismedical experts who could refute inacsion information issued by the federal
curate testimony about HIV transmission.
Centers for Disease Control. In February
In New Jersey, Mr. Smith maintains his
1990, CDC delivered the results of the
innocence. He says that not only did he not
largest study to date concerning the
bite the correctional officer but he was
possibility of "casual transmission"
severely beaten and brutalized by the
through biting and the exchange of saliva. officer.
CDC researchers tested 89 household
In his statement to the court Smith said,
members living with 25 children with
"This is a matter of civil rights. It's not
HIV. Although many of the children with
about criminal conduct." The growing
HIV had bitten non-infected siblings and
coalition of AIDS activists, lawyers, health
other members of the households, there
educators and community leaders that
was no transmission of the virus. The CDC
have rallied to his case concur and have
has removed saliva from its list of body
begun to focus needed national attention
fluids that requires the use of universal
on the discriminatory treatment faced by
precautions, i.e., the wearing of surgical
defendants with HIV and AIDS. It is this
gloves and masks.
combination of legal advocacy and
According to the 1989 study of the
political activism that is needed to make a
National Institute of Justice on AIDS and
difference in all of these cases.•
correctional facilities, no police or
correctional officers have contracted HIV
Judy Greenspan is the AIDS information
infection through on-the-job exposure.
coordinatorfor the National Prison
The NIJ report concluded that due to
Projec~ and contributes a regular column
increased AIDS education and recent
to the NPPJOURNAL.
.~

Criminalization
of An Epidemic
utraged cries of "Shame, Shame,"
and "You've just given this man a
death sentence," echoed throughout the crowded Camden County, New
Jersey courtroom after Superior Court
Judge John B. Mariano sentenced Gregory
Smith to 25 years in prison for allegedly
biting a prison guard. Mr. Smith, a young,
Black, gay prisoner with the Human
Immunodeficiency Virus (HIV) had
recently been convicted by a jury for
attempted murder despite the court's
acknowledgment that HIV is not transmitted through biting or the exchange of
saliva. Judge Mariano stated in court that
he wanted to send the message that
"criminal conduct of this nature will be
met with swift and severe punishment."
Criminal cases involving the Acquired
Immune Deficiency Syndrome (AIDS)
have indeed been sending a message to the
public for several years-the wrong one.
Criminal charges of attempted murder or
assault with a deadly and dangerous
weapon for alleged acts of spitting, biting
or spilling blood directly contradict the
medical facts of HIV transmission. The
effect of these charges has been to cause
unfounded and Widespread fear in the
general population and to fan the flames
of discrimination and abuse against people
with AIDS and IlIV.
Fear of AIDS and the stigma of HIV
infection has led to a dangerous
"criminalization" of the disease. The
disease has been treated in the courts as a
criminal matter, rather than as a serious
medical crisis. Arash of criminal transmission cases brought against people with
HIV and AIDS has sprung up around the
country. While many felony charges have
arisen out of alleged attempts at sexual
transmission, this article will only focus
on biting and spitting incidents.
Over the past three years, approximately 10 cases have been brought to
court in which people with AIDS have
been indicted for attempted murder or
assault with attempt to commit murder

O

18 WINTER 1991

THE NATIONAL PRISON PROJEG JOURNAL

l

The National Prison
Project Status Report l'

The jail Litigation
Status Report gives a

lists by state those presently
under court order, or tho~'
which have pending lit~jj:-,
tion either involving the
1>/,
entlfe state pnson syst~:P1 or
major institutions wHhfn 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.
•

1990 AIDS in Prison
Bibliography lists
resources on AIDS in prison
that are available from the
National Prison Project and
other sources, including
corrections policies on AIDS,
educational materials,
medical and legal articles, .
and recent AIDS studies.
$5 prepaid from NPP.

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/
$150 prepaid.

APrimer for jail Litigators is a detailed manual

Offender Rights Litigation: Historical and
Future Developments. A
book chapter by Alvin J.
Bronstein published in the

Prisoners' Rights
Sourcebook (1980). Traces

QTY. COST

.<

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
~crees and cases in progress
, ~5 well as published deci,~lons. 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.

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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

_

.TH.E.N.A.T.IO.N.A.L.PR.IS.O.N_PR.O.JE.Q_JO.U.R.N.A.L

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•RIllili19.9.1_19
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----------

~ - ~ - - - ~ . _ - - - - - - - - - - - - - -

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

Congdon v. Murray-In this case
challenging conditions at the 190-year-old
Virginia Penitentiary (but really designed.. ~
to close it), the court on November 21
'.
ordered an around-the-clock fire safety~;'
watch, regular cleaning and pest control, ~
and repairs. State officials, who had
promised to close the Penitentiary for
years, finally did so in mid-December.

Austin v. Lehman-On November 27
the Prison Project, along with the ACLU
of Pennsylvania, the Pennsylvania
Institutional Law Project and the
Philadelphia law firm of Kairys &
Rudovsky, filed this case which challenges overcrowding and conditions in 13
Pennsylvania prisons. The case was filed
following investigations into the October
1989 Camp Hill prison riots and a series
of other disturbances in the state prison
system.

Hamilton v. Morial-This case
challenges conditions at the Orleans
Parish Prison, the municipal jail for the
city of New Orleans. Shortly after the
start of a November trial on medical care
issues, parties opened settlement talks. On
November 30 they reached a settlement
providing for an organized system of
medical care delivery and covering all
components relating to that system.

T

Bates v. Lynn-This case seeks to
ensure adequate legal access for death
row prisoners in Louisiana. Parties have
reached a partial settlement which
provides death row prisoners with
contact legal visits and increased indigent
mail privileges.
Brown v. McKernan-On November 30
we reached a partial settlement in this
new case, filed in October, challenging
overcrowding and conditions for protective custody and administrative segregation prisoners at the Maine State Prison.

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

20

WINTER 1991

Palmigiano v. DiPrete-This case
challenges conditions in the Rhode Island
prison system. Ahearing was held on
January 11, 1991 requiring defendants to
show cause why they should not be held
in contempt for failing to open two new
facilities on November 15 as they had
promised the court. The new medium
facility has been only partially operable
since opening November 20 and the
opening of the new Intake Service Center
addition was pushed back to late January.

_
Mecklenburg County Jail (N.C.). A
settlement was reached in November
which includes a substantial reduction in
the population, a population cap, a
doubling of staffing and recreation space,
and improvement, in medical care, fire
safety and envirQqmental conditions.
",'f?""

u.s. v. Michigan/Knop v.JohnsonThis is a statewide Michigan prison
conditions case. Following an October
compliance hearing, the court ordered
improvements in the evaluation and
treatment of mentally ill prisoners and
ordered state officials to grant prisoners'
attorneys access to prisoners, their records
and reports. The court also ruled that in
the future, state corrections officials
would be held responsible for noncompliance, regardless of advice given them by
state attorneys. (There is a history here of
lawyer misbehavior.)
Wilson v. Seiter-We argued this case
before the Supreme Court on January 7
maintaining that the Sixth Circuit had
applied a standard in conflict with human
decency, and with the standard applied by
other circuits for Eighth Amendment
violations. Also, for the first time in 20
years, the U.S. Solicitor General's office
took a pro-prisoners' rights stance, filing
an amicus brief and arguing in support of
our position.

Thomas v. Kidd-This case challenges
conditions and overcrowding in the

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