A PROJEG OF THE AMERICAN CIVIL L1BE~TIES UNION FOUNDATION, INC.
VOL. 6, NO.2, SPRING 1991 • ISSN 07:'}.~-2655
~J!

\
"j

thing that drives me-you always have to~1Je on the
watch for excessive state power."
~~The

-Alvin.J. Bronstein

lvinj. Bronstein's contribution to
prisoners'rights isprofound and
unparalleled. Under his energetic
leadership, the National Prison Project has
forced changes in the way the nation's
prisons operate and the conditions under
which prisoners live. Over the course of the
last 19 years, the Prison Project has
garnered the respect of most who work in
the criminaljusticefield, including many
whofind themselves on the opposite side

A

of thephilosophicalfence.
In 1989, Bronstein was awarded a
MacArthur Fellowship in recognition of
his work, and in 1991, for the third time
in a row, the National Law Journal
named him one of the country's 100 most
influential lawyers.
A native ofBrooklyn, New York,
Bronstein first became interested in
prisons in the 1960s while working as a
civil rights lawyer in the South. He was

shocked when he visitedprisoners in jails
and saw the conditions in which they
were housed.
Interviewed here by David Fathi, NPP's
newest staff lawyer, Bronstein looks back
on his experiences as a vigorous defender
of civil rights in the South and shares his
insights on the current state ofAmerica's
prisons.
Fathi: How did you become a lawyer?
Bronstein: It was part serendipity,

part interest from a very early age. For
my eighth birthday I was given a child's
anthology of biographies
of a hundred different
people. One of them was
Clarence Darrow. I
remember being fascinated
by him and then getting
other Darrow books out of
the library. By the time I
was 13, I'd read almost
everything he had
written-collections of his
speeches, his closing
arguments. He became one
of my heroes. My other
g>.. hero was Lincoln Steffens,
~ the muckraker journalist.
. _ . ,E Circumstances did not
move me toward the law
initially. By the time I was 10 years old,
my family's finances had taken a drastic
turn for the worse. I was only able to go
to one of the free colleges in New York.
My mother decided the only profession
I could get into would be accounting-I
couldn't be a doctor or a lawyer because
they couldn't afford to send me to school.
So I went to the City College of New
York, the School of Business Administration, to become a CPA. I hated it, and I

flunked out of college in my senior year.
After that I went to work. Ayear later
my Uncle Jay, who was a lawyer and
who I'd always been fairly close to,
offered me an errand/clerk job in his
office to see if later I might be interested
in going to law school. I worked there for
a year, saved some money, and was able.
to get into law school. New York Law
School had reopened shortly after World
War II and they were looking for
students. As I recall, the tuition was $600
for either a year or semester, plus books.
Fathi: Did you then go to work with
your uncle?
Bronstein: Yes, and after I was
admitted to the bar, he raised my salary
from $20 to $40 a week. Within a year, he
made me a partner in the firm, and I
stayed there for 12 years. He had one
associate and one clerk; they did no trial
work. The firm specialized in commercial
and personal injury practice and farmed
the trial work out to others. I was
interested in trial work and pressed him
to let me do it-that became the part of
the practice I most enjoyed.

*'

Fathi: How did you begin to get
involved in civil rights cases?
Bronstein: Well, again, part coincidence, part interest. In the late 1950s and
early '60s my ex-wife and I-with three
small kids-became involved in a
progressive educational movement, the
Summerhill Society. The Summerhill
Society had a little office in New York, in
the public interest building at the time,
and shared a suite of offices with AJ.
Muste of the War Resisters' League, Ella
Baker of CORE (Congress of Racial
Equality), and SNCC (Student Nonviolent
Coordinating Committee). Through that
connection, I began to get into some First
Amendment and conscientious objector
cases. I represented the War Resisters'
League in one case where a high school
teacher refused to have his class participate in air raid drills because he thought
they were harmful to the children. I was
introduced to the people in Brooklyn
CORE, the most...militant of the CORE
chapters. They conducted the first sit-in
in a bank, protesting the lending policies
as racially discriminatory. They were a
provocative, nonviolent but direct action
group-a pretty active client. I began
putting more and more time into the
kind of work I enjoyed and felt was
important, and spending less and less
time on fee-producing work. Our
partnership ended in 1963 and I left
Brooklyn; by then we had decided to
start our own alternative school. We sold
our house in New York City and moved
upstate, where we bought some property
and started the first Summerhill School
in this country.
Fathi: Tell me about that.
2 SPRING 1991

Bronstein: We were
concerned about the
overemphasis in New York
Public schools on controlsounds like prison!-and
the stifling of kids'
imaginations. Having read
about and discussed the
Summerhill philosophy
with many educators, w~.
felt that a school modeled
on those principles wase';
what we wanted for our
kids...to be able to offer
that to others. The school
grew and lasted for about
13 or 14 years. But my
marriage broke up shortly
after we moved there, so I
left the school and began
practicing law in
Elizabethtown, the home
town of two great federal
judges, Learned and Augustus Hand. I
became the unofficial public defender in
the county, travelling the circuit
handling criminal cases and trial work
for other lawyers. It was very interesting,
very different from big-city practice. You
had personal injury cases where you had
to learn how you connected the horse
part to the tractor part...not the kind of
thing you ran into in New York City.
Fathi: How did you happen to go South
to do civil rights work?
Bronstein: In the spring of 1964 I
heard about the formation of the
Lawyers Constitutional Defense Committee (LCDC) by the ACLU and other rights
groups to provide volunteer lawyers for
Freedom Summer in Mississippi, and for
the civil rights movement in general. I
spoke by phone to Henry Schwarzschild,
the executive secretary of LCDC, and I
volunteered to go to Mississippi.
He called me back a couple of days
later and said, okay, you're going to St.
Augustine, Florida-we need someone
there with trial experience. So off I went
and stayed for almost six weeks. It was
really remarkable-a life-changing
experience. I knew after that I could not
go back to doing traditional legal work.
Fathi: Why did you get so involved in
it?
Bronstein: Two things: first, the local
people who were so courageous. The local
black people just opened up their homes
to us. Sometimes they would drive along
behind us to protect us from the Klan. I
stayed in the home of an elderly woman
who lived alone. The way she was
exposing herself by putting us up, in the
face of all kinds of economic and

physical abuse-it was just amaZing. She
did it calmly and quietly, thanking me all
the while for being there. There was a
little old cafe across the street from the
office-the only place we could eat in
town, since this was pre-Public Accommodations Act-owned by a gruff old
black ex-sailor who went out of his way
to feed and take care of us. The courage
of the local people was very mOVing.
The second thing was, what a marvelous opportunity to be at the frontiers of
the law! I was involved in the first
omnibus case uQ.-der Title II of the 1964
Civil Rights Ac,r!a case against 24 motels
and restaurants in St. Augustine. After
we obtained an injunction requiring
them to serve blacks, we handled the
first contempt case under the Act. Local
police officials were found in contempt
for interfering with the injunction; that
decision was upheld on appeal. We
handled mass arrests, mandatory
injunctions enjoining the state police to
provide protection and a variety of other
important cases. It was very exciting-we
were in court every day. I felt that I was
in on the beginning ora new era of
important litigation.

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

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

The NPPJOURNALis availableon16mm
microfilm,35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.
THE NATIONAL PRISON PROJECT JOURNAL

· Fathi: But didn't you end up spending
much longer than six weeks in the
South?
Bronstein: It turned out that I spent
almost five years there. On my way home
from St. Augustine I stopped in New York
City and talked to Henry [Schwarzschild],
briefed him on what happened and told
him I was really interested in going back
to the South. No one had thought much
about what would happen after the
summer when all the volunteers went
home.
We had raised expectations, filed
affirmative lawsuits, removed thousands
of criminal prosecutions from state to
federal court, and I felt strongly that we
could not just walk away. I came back to
New York that fall after the summer
program was over, and had several
meetings with Schwarzschild, Mel Wulf
(legal director of the ACLU),Jack
Pemberton (ACLU executive director),
and Jack Pratt (general counsel of the
National Council of Churches), trying to
get money to continue.
Then I got a call from Henry asking if,
in the meantime, I would be willing to go
to Mississippi for the NAACP Legal
Defense Fund. During the summer of
1964 they had filed a big police brutality
case against the city, state and county
police in the area around McComb,
Mississippi. The case was coming up for
trial and they didn't have an experienced
trial lawyer in the Mississippi office. I
agreed to go and lived there for about
five weeks, living in the Freedom House.
I became even more inspired now by a
whole different set of people in the
South. These were the bravest and most
beautiful people I had ever met.
We opened the first permanent LCDC
office in Jackson, Mississippi and
thereafter offices in New Orleans and
Selma, Alabama. I moved to Jackson,
eventually sllpervising 10 fulltime
lawyers and hundreds of volunteers in
the three states of the Deep South. It is
almost impossible to describe the
magnificence of that experience.
Fathi: What interested you in prisons
as a civil rights issue?
Bronstein: In civil rights work you got
to see a lot of prisons, and a lot of bad
ones in the South-county jails and state
facilities like Angola in Louisiana and
Parchman in Mississippi. I began to see
prisoners' rights as a natural outgrowth
of civil rights work. This was in the early
stages in the development of prisoners'
rights law and once again, I saw this as a
new frontier for legal work. The
litigation tactics and litigation strategies
THE NATIONAL PRISON PROJECT JOURNAL

of the civil rights movement could be
applied to prisoners' rights work.
Fathi: What's wrong with American
prisons today?
Bronstein: There are too many of
them. And, for the most part, they are tQo
institutional in nature-calculated to ~'
make people worse. They send a messag~
that we have given up on you people llf
human beings, and we don't really c~# if
you make it back in society. In fact, we
i'''
don't think you will, so why should£y.re
do anything to help you?
.
Fathi: As you know, the United States
is now number one in the world in its
rate of incarceration. I'm sure you would
agree it is among the worst in the
developed world in prison conditions.
Why is that?
Bronstein: To be fair, I wouldn't say
it's among the worst in the developed
world. There are developed countries like
the United Kingdom, France, Italy, Spain,
and Turkey, where prison conditions are
worse, generally, than in this country.
During the past 20 years in the U.S., we
have gone from 19th century dungeons
to 20th century prisons with bad
conditions. Today a lot of the awful
conditions are the result of overcrowding. I think there are enough fairly
decent administrators out there who, if
they were not under such enormous
population pressures, would run much,
much more decent prisons than we have.
Today, the numbers drive just about
everything, seriously affecting basic
health, safety and services.
Going back to what's wrong with our
prisons, we also tend to overemphasize
security. The American belief is that to
run a secure prison you
have to exercise more and
more control over
prisoners' movement. I
think that's wrong, in fact,
I think the opposite is true.
With a few individual
exceptions, the way to
control security, in my
opinion, is to allow
maximum movement
within the prison. We
overemphasize security,
we are threatened by the
pressure of population. All
of this comes at a time of
increasingly scarce
resources throughout the
country at the state and
federal levels, and
particularly the county
levels. Those jurisdictions
are hurting for money;

prisons are competing with schools,
highways, libraries, and police and fire
protection. Prisoners don't vote, they're
not a popular constituency. Unless
legislators are forced to do otherwise by
court orders, they will cut-or not
provide-funding for prison programs
and services. The correctional administrator is given fewer and fewer resources
to deal with a growing population and
that naturally results in bad conditions.
Fathi: Why is the population increasing as much a~it is?
Bronstein~We have dramatically
changed our'-sentencing practices in this
country in the last 15 or so years. We
moved to mandatory and determinate
sentences, increasing lengths of sentences
to the extreme. Of course we also have a
serious crime problem in this country.
Politicians have been conducting their
war on crime with all the wrong
ammunition, if you will. We are the only
developed country that I know of, with
the possible exception of the u.K., that
still uses incarceration as a crime control
mechanism. Politicians tell the public,
"We're going to solve your crime problems by locking up more people." It is not
possible to imprison enough people to
affect crime rates. We need longterm
programs to address root causes of crime,
not short term, political responses that
get people elected. Any time we have a
Willie Horton episode that gets politicians elected, it sends more and more
people into prison for longer. The third
big thing is the offspring of the second,
and that is the "war on drugs." We're
locking up huge numbers of minor drug
offenders, minor drug abusers who

SPRING 1991 3

"",,*j)i-'I"",-----------~--"

••- - - - - -

commit small crimes to pay for
wealth in this society?
their habit. We are not, as the
Bronstein: You're always
Bush administration claims,
going to have terrible prisons
getting the bad guys off the
because prisons in and of
street. All of that reflects the
themselves are terrible. And as
fact that we are a society that
long as we have the social,
is vengeance-driven. What
political and economic
we're interested in now is
conditions that you mention,
vengeance and punishment, not
we're going to have a lot of
justice and equity.
prisons and most of them are
Fathi: All the evidence
going to be dreadful. On the
indicates that the work you do
other hand, things today do
is not very popular. Many
not g~erally approach the
people would prefer that prison
dept~ of degradation and
conditions be awful and
inhumanity of as recently as
horrible.
15 years ago, or even five years
Members of the Mississippi Freedom Democratic Party
Bronstein: Yes, that's
ago in some of the states that
meet in a church in Holmes County, Mississippi in the
generally true. It's the message
we've worked in. As an
spring of 1966. Here Bronstein is delivering a report on
they get from the political
example, the infamous
legal activities.
leadership. Lock people up and
"doghouse" in Alabama: it was
throwaway the key. Also, these
a windowless building, where
are troubled times. People are troubled
The Rhode Island case (Palmigiano v.
six or seven men were jammed into a 32
economically, they're worried about how
Garrahy) was important. It's a small
square foot cell so that no more than
to pay for medical care, for education for
system, but over the years the case has
three could lie down at a time and four
their kids. Whenever things get tough,
resulted in a lot of good law with
had to stand. No toilet in the cell. No
people get more conservative. When
light. That will not happen again in
reported decisions on almost every
people are hurting, they want a scapepossible aspect of prison litigationAmerica. Five years ago in Hawaii, in the
goat. You get the "we-they" syndrome.
contempt, varieties of contempt and the
men's prison you had dormitories that
"Part of the reason why I'm in such bad
powers of the federal district judge, the
were hard to believe. You walked in, it
shape," they say, "is because you have
was like going into a cattle pen. Filth and
initial opinion itself, and modification.
Them Out There stealing and robbing
New Mexico (Duran v. King) was
stench and crowding. You had a women's
and doing dope." That's part of it.
significant, partly because the case in the
unit that had windowless cells so small
On the other hand, I have found that if early stages was so overwhelmed by
they could not accommodate a cot. Just
you can sit down with people, have an
events-the February 1980 riot that cost
horrendous kinds of conditions. People
hour or two to talk to them, to talk about so many lives. The case resulted in a
were dying throughout the country's
how most of these people are going to
prisons for lack of medical care. Now,
consent decree that has been looked at
come out, which they don't think about,
by many, many states. It has made some
that still happens, but not in the wholethat a brutal prison experience can make . interesting law, too, on decree modificasale kind of way that it did then in so
a person more threatening, more
tion and attorneys' fees, and it's still a
many places. I think we've helped bring
dangerous when they come out. These
symbol of what you can do with a
prisons into the 20th century in the last
people are human beings, and not
consent decree. Today, many of the
15 years, and that was worth doing. This
everyone in prison is a rapist and a
State's prisons are in compliance with the does not mean that we have nice prisons.
But that's as much as you can achieve
murderer and a sex offender. If you can
Constitution and the consent decree.
just get people to think about it....
Baraldini v. Quinlan was important,
with the law as an instrument of social
Fathi: What do you consider the Prison
as was the case involving the 1950s
change. The rest will require political
Project's greatest successes?
Puerto Rican nationalists (Cordero v.
and policy changes.
Bronstein: Certainly the Alabama case
Levi). In both cases we claimed certain
Fathi: Is there any hope for that in the
(Pugh v. Locke), which alleviated
prisoners were being treated differently
foreseeable future?
Bronstein: (Laughing) If I didn't think
conditions immediately and substantially and more harshly because of their
for many people, and the state was
political views. We believed that the
there was any hope, I wouldn't still be
ordered to release people. The case was
government was attempting to discourdoing this. Our one great hope is what is
even more important because of the
age certain political beliefs by making an
happening in the world: a growing
impact it had nationally-more outside
example of these two groups of prisoners. awareness of human rights even in
of Alabama than in the state itself. The
We believed that the government was
places such as South Africa. In Czechoslocourt had set out very specific standards
acting illegally and we were successful in vakia, Poland, some of the other Eastern
that it labelled "minimum constitutional
obtaining relief in both cases. They were
Bloc countries, there are real human
standards." It may have been a poor
important symbolically.
rights movements. As the European
choice of words, but it was taken
Fathi: You've been trying to reform
Community develops, it is going to be
seriously. The Alabama case was really
prisons for almost 20 years now. Do you
making stronger commitments to human
the impetus for the development of
think it's possible to do that without
rights. Turkey is going to have to change
professional standards of the American
reforming the rest of society? Aren't you
its prisons because otherwise it will be
Bar Association, the American Correcalways going to have terrible prison
pressured in the Council of Europe. The
tional Association, and the American
conditions as long as you have terrible
UK is going to have to change its
Public Health Association.
racism and gross maldistribution of
practices, certainly in Northern Ireland,
4 SPRING 1991

THE NATIONAL PRISON PROJECT JOURNAL

if they want to stay a partner in the
European Community. It will take time,
but there are written, enforceable
standards and policies in the European
Community. All of that is developing at a
time when, in this country, we're
becoming more repressive. Look at what's
happening in the arts, the First Amendment area, privacy invasions, in our
prisons and criminal justice systemwe're going the other way, really, from
much of the rest of the world. I visualize
a day, in the not-too-distant future, when
international pressure will be meaningful. Right now, we ignore it. We ignore
the World Court. We ignore it whenever
anyone criticizes us. We use those
instruments only to our advantage.
Fathi: No one could do the kind of
work you've done for as long as you've
done it without some sort of driving
internal force-an ideology, a philosophy.
What makes you do what you do?
Bronstein: At home I heard a lot about

oppression and injustice-my father
emigrated from Russia when he was only
17. I heard that those injustices were to
be expected because the Jews were
powerless and weak in Russia and in
Poland. I learned it was important to be
concerned about people who were
~,
disadvantaged and less powerful.
,);
It was the state oppressing my family:
the government, the czar, the Cossackst
the troops. Throughout our history, ,With
a few exceptions when organized,J
religion got into the act, most oppresSion
has been done in the name of The'State.
This is what is so hard for people to
understand, people I talk to who fuss,
why aren't you concerned about victims
and victims' rights? I am, but there's a big
difference between me mugging you or
beating you up on the street, and two
police officers doing it. I don't represent
the state and they do. That's the thing
that drives me-you have to always be
on the watch for excessive state power.

Rhode Islandjudge
Reflects on Palmigiano
n 1976, National Prison Project lawyers became lead counsel in
Palmigiano v. Garrahy, a case challenging conditions and overcrowding in
Rhode Island's stateprisons. Until early
this year, the Honorable RaymondJ
Pettinepresided over the case in the
United States District Court in Rhode Island. Throughout his involvemen~
Pettine sought to enforce the population
limits and reforms ofa 1977judgment
and subsequent consent decrees despite
unprecedented overcrowding and the
seeming inability ofdefendants to institute popula"tion controls.
The state recently opened two newprisons, and the population is now in compliance with court-ordered limits. With
overcrowding eased,judge Pettine
recused himselffrom the case inJanuary
1991 He shared the following insights in
this statement issued at that time.

I

At this milestone in the history of the
Court's involvement in litigation to correct unconstitutional living conditions,
which existed for years in the Adult Correctional Institutions, I feel constrained
to issue this rather brief comment.
On August 10, 1977, when I published
the first opinion mandating major reTHE NATIONAL PRISON PROJEG JOURNAL

forms, the absolute nadir of prison life
may not have been reached in Rhode Island, but neither was it missed by much.
One highly respected and Widely traveled national authority on corrections
cited conditions in our prison as the
worst he had ever seen in his long and
varied career, observing that Rhode Island institutions embraced "all the egregious deficiencies that could possible exist." In the opinion, I held that the Maximum Security Institution was "unfit for
human habitation according to any criteria used by public health officers or correctional personnel." Since then a long
and difficult road has been traveled-a
road strewn with obstacles. The Court
encountered legislative and public pressure, the inherent resistance of an entrenched bureaucracy to change and an
old-line cadre of guards with inflexible
and unyielding intolerance of incarcerated criminals. Fortunately, over the
years, attitudes changed.
Abook could be written of all that has
transpired for the past 17 years; every aspect of prison life has been adjudicated,
as a result, the old Maximum Security
section was renovated so as to meet constitutional standards, new Medium Security, Intake Service Center, and Super

The people who are most often going to
have that power imposed on them
improperly are the weak, minorities,
people of different backgrounds,
different colors, different languages, the
poor.
Fathi: You often speak to law students.
What do you tell students coming up
through law school some 40 years after
you did?
Bronstein: I try to tell them two
things: I hear young lawyers say-"Oh, it's
too late, the flii,Ontiers are all gone. It's not
like in the Sixties." I don't think that's
true. There ate exciting new frontiers
that I mentioned earlier, such as the
application of international human
rights standards and human rights law to
the problems of this country. Second, a
lawyer can make a difference in the lives
of people. And that's worth doing. •

David C Fathi is a staffattorney with the
National Prison Project.
Maximum Security buildings were constructed. In addition, other structures
have been renovated and modified to
house prisoners. The gargantuan effort
exerted, though turtle-like in its movement, has finally come to fruition.
Since this is a cursory statement and
not an analytical, historical narration
nor a saga of this Court's and the State's
adventure in the area of prison reform, I
do not hesitate to jump to the most recent chapter in the adventure-the
completion of the new Intake Service
Center. The overcrowding problem has
been solved with the expenditure of millions of dollars; sailing appears relatively
smooth and calm waters prevail. According to figures provided by state officials
as of December 1988, "since the arrival of
John Moran as Director of Corrections in
1978 the Department...committed some
$84 million dollars in new construction
and renovations... In addition, since 1980,
the ACI budget has grown from 165 million to 42.2 million dollars a year." Since
these figures were given to me as of December 1988, the present sums must
surely exceed 84 million dollars. The impact on the State's economy is manifestindeed, startling in the wake of the economic stress we are now experiencing.
This brings me to the very purpose of
this statement-that is, to urge the authorities to realize that the operation of
a prison within the State is nota matter
of secondary importance amidst the array of complicated public issues that the
(con't onpage /3)
SPRING 1991 5

,);~,

<:~,

Highlights of Most
Important Cases
Crowding/Damages/Contempt/
Pre-trial Detainees
The wages of overcrowding may be payable to inmates in cash, according to two recent decisions.
In Benjamin v. Sielaff, 752 F.Supp.140
(S.D.N.Y. 1990), the latest chapter in the longrunning New York City jail litigation, federal
District Judge Morris E. Lasker found prison
officials in contempt of a lO-year-old order
that barred housing inmates in dayrooms, receiving rooms, gymnasiums and program
space. The defendants did not dispute that
during the preceding six months, "hundreds
of inmates [had] been sleeping on the floors
of receiving rooms and on cots in gymnasiums." Nor did they dispute the prisoners' attorneys' reports of the resulting "nightmarish" conditions:
Detainees have been forced to sleep on
crowded, filthy floors in closeproximity to seriously ill people, many of whom have not
been medically screened; they must rely on
inadequate numbers ofgrossly unsanitary
toilets and sinks; access to telephones is de
minimis or non.fxisten~ w#h the result that
many inmates have been lost to theirfamilies and attorneys; access to showers is rare or
nonexistent; access to medical care and critical medication is sporadic at best
As is common in such disputes, prison officials claimed that they were unable to comply because of "events beyond their ability to
predict or control," including population increases and delay in opening new facilities.
But Judge Lasker made it clear that after ten
years it was too late for such arguments to be
taken seriously.
Judge Lasker rejected the plaintiffs' proposals for coercive fines and appointment of a
special master, but adopted their proposal for
compensatory damages. In the future, any
prisoner held longer than 24 hours in a re6

SPRING 1991

ceiving room or other non-housing area will
be entitled to damages of $150, plus $100 more
for each additional 12-hour period or portion
thereof. The court cited the approach of
other federal courts in fixing per diem damage awards for wrongful placement in segregated confinement. Judge Lasker added a
warning of the possible consequences of further noncompliance: "[I]f the sanctions ordered prove ineffective, serious consideration
would have to be given to limiting the number of inmates who can be admitted to the
respective institutions." 752 F.Supp. at 149.
When this decision was issued on November 30, 1990, the immediate result was a torrent of outrage in the local media, with many
commentators comparing receiving room
conditions favorably (and very inaccurately)
to the living conditions of American soldiers
stationed in Saudi Arabia. This hostile publicity has served in practice to focus the Department of Correction's attention on complying
with its obligations under long-standing
court orders and the Constitution. Recently
the Department itself has publicly announced its discovery of instances of noncompliance, blaming lower-level employees
and proposing to discipline them by fining
them the amount of the damages paid to inmates. Whether the blame is appropriately
placed is the subject of considerable debate.
Another federal court was unimpressed
with "too little, too late" in Moore v. Morgan,
922 F.2d 1553 (11th Cir. 1991). Mr. Moore sued
for damages based on his stay in the Chambers County, Alabama jail in 1985-86. After a
trial the magistrate found that he had been
subjected to unconstitutional overcrowding,
with inmates routinely sleeping on the floor
in crowded cells and in bullpens with less
than 15 square feet of floor space per inmate,
excluding the size of the bunks. The space
provided inmates "does not come close to any
known standard," and the overcrowding was
"cruelly exacerbated" by the lack of any outof-cell time whatsoever. 922 F.2d at 1555. But
the magistrate ruled that the defendants
were entitled to qualified immunity and
therefore declined to award damages.
On appeal the court held that damages
must be awarded. The plaintiff's official capacity claims against the county commission-

ers were equivaley-t to a suit against the municipal govermp.~yt, and qualified immunity
is not available ttl municipalities under any
circumstances. "
The court went on to hold that the undisputed facts showed that the unlawful overcrowding resulted from a municipal policy.
The crowding problem had been a topic of
discussion in the county government for several years, but the commissioners did nothing
but authorize a study. After the plaintiff
filed his suit, however, they bought a facility
for 25 inmates, and by cutting funds for
other governmental activities provided funds
to build a new jail for up to 200 inmates. The
court concluded, "The ways in which the
commissioners actually obtained the money
to finance the necessary jail improvements, when put under the threat of litigation, provides compelling evidence of the fact that
the commissioners could have taken steps to
improve the jail at a much earlier date."
Their "policy of delayed action" established
their liability for the resulting unconstitutional conditions. 922 F.2d at 1557. The court
added the oft-repeated observation that "lack
of funds for facilities does not justify the
maintenance of unconstitutional jail conditions." Id., n. 4.
The court held that the sheriff and the
commissioners were also subject to liability
in their personal capacities because the defense of qualified immunity was waived by
their failure to plead it.
Transfers/Disciplinary Proceedirigs
In Stewartv. McManus, 924 F.2d 138 (8th
Cir.1991), a federal appeals court has held
that the Interstate Corrections Compact does
not require officials in the state that receives
a prisoner to conduct disciplinary hearings
pursuant to the rules and regulations of the
sending state. The decision is one of the first
significant judicial constructions of the statute, and behind its thicket of technical reasoning lurk practical issues of great concern
to correctional administrators.
The Interstate Corrections Compact is a
uniform statute that participating states
adopt legislatively and then implement
through contracts. About two-thirds of the
states belong to the Interstate Corrections
THE NATIONAL PRISON PROJEG JOURNAL

Compact, the Western Interstate Corrections
Compact, or the New England Interstate Corrections Compact. Lilly and Wright, Interstate
Inmate Transfer after Olim v. Wakinekona,
12 New EnglandJournal ofCriminal and
Civil Confinement71, 75 (1986).
The plaintiff in Stewart was a Kansas prisoner who in 1983 had been transferred to
Iowa, where he accumulated a serious disciplinary record. He argued that Iowa was obligated to apply Kansas disciplinary rules in
any proceedings it brought against him.
In rejecting his argument, the appeals court
had to pick and choose from the language of
the statute. It was unimpressed by language
stating, "The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate
would have had if confined in an appropriate institution of the sending state." Nor was
it convinced by a provision that hearings to
which the inmate is entitled under the sending state's law may be conducted in the receiving state by that state's officials, but "the
governing law shall be that of the sending
state." Iowa Code 247.2. Rather, the court preferred to apply a provision that transferred
inmates "shall be treated equally with such
similar inmates of the receiving state as may
be confined in the same institution," along
with language from the implementing contract providing that the receiving state shall
"maintain proper discipline and control" over
transferred inmates, "make certain that they
receive no special privileges," and "exercise
disciplinary authority over them," and that
these inmates "shall be subject to all provisions of law and regulations" applicable to
the receiving state's prisoners that are "not
inconsistent with the sentence imposed."
Based on these provisions, the court held that
no liberty interest protected by due process
was created by the Compact, overruling the
contrary decision in Cameron v. Mills, 645
F.Supp. 1119, 1124-26 (S.D.Iowa 1986).
In addition to its due process ruling, the appellate court held that the terms of the Compact are not fecterallaw and are therefore
not enforceable under 42 U.S.C. 1983. In doing
so, it again rejected the reasoning of
Cameron v. Mills and denied the relevance of
a 1981 Supreme Court decision.
The Compact Clause of the Constitution
provides, "No state shall, without the consent
of Congress,...enter into any Agreement or
Compact with another State." U.S.Const., Art. I,
§ 10, Cl. 3. Not every interstate agreement requires Congressional consent; if the agreement does not increase the states' power, potentially encroaching on that of the federal
government, it need not be authorized by
Congress. "But where Congress has authorized
the States to enter into a cooperative agreement, and where the subject matter of that
THE NATIONAL PRISON PROJECT JOURNAL

agreement is an appropriate subject for congressionallegislation, the consent of Congress
transforms the States' agreement into federal
law under the Compact Clause." Cuyler v.
Adams, 449 U.S. 433, 440 (981). This principle
extends even to compacts for which congressional approval is not mandatory. Washini3'
ton Metropolitan Area Transit Authority,,,/-.;,
706 F.2d 1312, 1317 n. 9 (4th Cir.1983).¥
The Cuyler case involved the Interstate:',
Agreement on Detainers, and the SupreJiff
Court concluded that Congress had con!~nted
to it in advance in the Crime Control Consent
Act of 1934, 4 U.S.C.112. Consequently, the
Detainer Agreement became part of federal
law, enforceable under 42 U.S.C.1983, the
civil rights statute most frequently used in
prisoner suits.
The district court in Cameron v. Mills had
concluded that the Interstate Corrections
Compact, like the Interstate Agreement on
Detainers, was also authorized by the Crime
Control Consent Act. It cited the Act's legislative history, which stated an intent to foster
"cooperative effort and mutual assistance in
the prevention and punishment of crime,"
and the fact that the Interstate Corrections
Compacts were specifically acknowledged as
within the Act's scope when it was amended
in 1961 to include Guam. (In fact, one purpose
of that amendment was to permit Guam to
join the Western Interstate Corrections Compact.) Cameron, 645 F.Supp. at 1127 (emphasis
supplied, citations omitted).
The appeals court in Stewart rejected this
reasoning, stating that "no evidence exists
that Congress has approved the Interstate
Corrections Compact." It failed to discuss or
acknowledge the evidence cited in Cameron.
Nor did it precisely answer the question
posed by Cuyler v. Adams: whether the subject matter of the Compact is "an appropriate
subject for congressional legislation." The Supreme Court in Cuyler held that Congress's
power to legislate in tlle area was derived
from both the Commerce Clause and the Extradition Clause of the Constitution. While
the Extradition Clause is not relevant to the
Corrections Compact, the Commerce Clause
appears no less relevant to the Corrections
Compact than to the Detainer Agreement.
However, the Stewart court failed to address
the Commerce Clause question at all.
Although the Stewart decision disposed of
the case before the court, it did little to
clarify the application of the Interstate Corrections Compact in general. The Compact's
provision that confinement in a receiving
state "shall not deprive" inmates of rights
they would enjoy in the sending state must
mean something, even if it doesn't apply to
disciplinary rules. The same court that decided Stewart acknowledged as much in an
earlier case holding that an Arkansas inmate

transferred to Florida was entitled to good
time and other unspecified benefits that he
would have had in an Arkansas prison. Hayes
v. Lockhart, 754 F.2d 281, 283 (8th Cir.1985).
Stewart contains no guidance as to how a
court is to determine which rights travel
with the inmate and which do not.
Of course, the federal courts will not have
to worry about these questions if they agree
with Stewart's holding that the Interstate
Corrections Compact is not federal law enforceable under § 1983. But that simply
means that thvroblem will be dumped in
the laps of stat~ courts, which plainly have
jurisdiction i(}'~nforce the Compact. See, e.g.,
Application of Chapa, 115 Idaho 439, 767 P.2d
282 (App.1989) (bench warrant could be issued pursuant to court's general power to enforce the Compact); Gibson v. Morris, 646 P.
2d 733 (Utah 1982) (sending state could not
extradite to a third state without the receiving state's authorization). So far, most Compact litigation in state courts has focused on
issues of sentence computation, parole, and
other matters unrelated to conditions of confinement. But a broader range of prisoner
litigation based on the Compact is certain to
develop, especially if federal courts continue
to narrow their interpretations of prisoners;
constitutional rights.
It is easy to be critical of the Stewart decision; there is definitely more than one side to
each of the questions that it decided adversely to the prisoner. But the problem, ultimately, is in the statute itself, which was
drafted at a time when prisoners had very
few rights-statutory, constitutional, or otherwise-and when "civil death" provisions
barred many of them from enforcing the
minimal rights they did possess. Ambiguities
that no one noticed thirty years ago are the
stuff of lawsuits now, and will continue to
be until the Interstate Corrections Compact
receives a thorough legislative overhaul.

Other Cases
Worth Noting
U.S. COURT OF APPEALS

Use of Force
Miller v. Leathers, 913 F.2d 1085 (4th Cir.
1990) (en bane). After a verbal dispute, the
defendant officer took the plaintiff out of his
cell in handcuffs; after further verbal disputes, including insults to the officer's mother,
the officer struck the plaintiff several times
with a baton and broke his arm. The fact that
the plaintiff had filed a grievance against the
officer and that the officer removed him from
his cell without summoning a supervisor, vioSPRING 1991 7

lating a prison regulation, support an inference that the officer intended to retaliate
against him by provoking an incident.
The court holds the prison use of force
claims are governed by the standard of
Whitley v. Albers, but it reverses the panel
opinion granting summary judgment to the
officer. The dissenting judges accuse the
majority of "professing" to apply Whitley
while actually limiting its applicability to
full-scale riots.

Use of Force/Restraints
Stenzel v. Ellis, 916 F.2d 423 (8th Cir.1990).
The plaintiff insisted on sleeping completely
covered by a blanket contrary to jail rules.
Officers came into his cell, forcibly removed
him from his bunk, pulled him by his hair,
and shoved him to the floor. One officer
pulled back his finger and another had his
knee in the small of the plaintiff's back. He
was smashed into the bars on the way out
and choked to the point he could not speak
on the way to isolation. In isolation, he put
toilet tissue over the surveillance camera and
refused to remove it; he was then handcuffed
and chained to his bed for the rest of the
night and urinated in his pants as a result.
The use of force and restraint claims are
governed by Whitley, 106 S.Ct. 1292 (1986).
Summary judgment is granted to the officers,
since the plaintiff's injuries (bruises and
abrasions) were minor, the plaintiff was a
big man and passively resisted being moved,
he was not handcuffed, and he had previously fled to avoid prosecution.
Restraining the plaintiff in his bunk was
justified by his disobedience to a valid jail
rule. It was therefore his own fault that he
was "humiliated" by urinating on himself.

False Imprisonment
Alexander v. Perrill, 916 F.2d 1392 (9th Cir.
1990). The plaintiff was kept past the expiration of his sentence because of a failure to
credit him with foreign jail time. Prison officials had a clearly established obligation to
investigate prisoners' claims that they were
being incarcerated after the expiration of
their sentences. Even in the absence of case
law on point, defendants' "duties are clearly
established by virtue of the Bureau of Prisons
regulations and policies which they were legally obligated to perform." (1398)

..

AIDS/Searches-Person
Walker v. Sumner, 917 F.2d 382 (9th Cir.
1990). The plaintiff alleged that he was
forced to submit to a blood test for AIDS under threat of being shot with a taser gun. It
was undisputed that all inmates were tested
for AIDS on entry to the prison system and
that no Nevada prisoner had AIDS at the
time. The plaintiff claimed that the purpose
8 SPRING 1991

of the blood sampling program was to train
medical personnel in conducting the tests.
Prison officials were not entitled to summary judgment under Turner v. Safley, 107
S.Ct. 2254 (1987), where they identified no legitimate penological objective and demonstrated no relationship between their actions 1
and the blood-testing policy. At 387: "WithoUL}
a further explanation, general protestations
of concern for the welfare of the citizens of ~
Nevada and the prison community are simpJy
insufficient to render the involuntary sei c: ;
zure of blood specimens, even from prison inmates, constitutionally reasonable." Training
of state health care workers is a "highly dubious" purpose, and plaintiff "may well be
correct" that this is not a legitimate penological objective.

Staffing-Sex/Privacy
Timm v. Gunter, 917 F.2d 1093 (8th Cir.
1990). Prisoners' privacy claims concerning
the assignment of female officers to supervise
male inmates are governed by the Turner v.
Safley, 107 S.Ct. 2254 (1987), standard. Their
rights must be balanced against the equal employment rights of staff members and the internal security needs of the prison.
Female guards' pat frisking of male inmates was not unconstitutional where the
searches were brief and of "minimal obtrusiveness" and requiring same-sex guards to
perform searches would create significant
problems for the defendants. The sex-neutral
assignment of guards to all posts except the
maximum security unit was not unconstitutional since the surveillance (even of bathrooms) did not involve "constant, intrusive
observation." (1101)

Protection from Inmate Assault/
Evidentiary Questions/TheoriesDue Process
Walker v. Norris, 917 F.2d 1449 (6th Cir.
1990). The decedent was killed by another inmate with a knife while several officers
looked on despite several opportunities to intervene and prevent his death.
Photographs of the decedent's body were
properly admitted as evidence of conscious
pain and suffering.
The court approves the following jury instruction (at 1454):
A defendant acts with deliberate indifference if he causes unnecessary and wanton infliction ofpain on the decedent by deliberately disregarding a serious threat to the decedent's safety after actually becomingaware
ofthat threat. A mere inadvertent or negligentfailure to adequatelyprotect the decedent does notconstitute deliberate indifference.
The trial court appropriately refused to
equate reckless disregard with deliberate indifference because in its substantive due pro-

cess charge it used the terms "reckless disregard" and "gross negligence" interchangeably
and the jury might have been improperly led
to believe that "gross negligence" could support a deliberate indifference claim.
The district court's instruction that liability could be found on a substantive due process theory based on "reckless disregard or
gross negligence" was erroneous. "Such disparity between the substantive due process
and eighth amendment standards seems
plainly incompatible with the Supreme
Court's decision in:{!hitley v.l Albers." [106
S.Ct. 1292 (1986)] (~54) Besides, since the
Eighth Amendm~t provides an "explicit textual source of constitutional protection
against this sort of" conduct (quoting Graham v. Connor), inmate assault cases must be
adjudicated under the Eighth Amendment
and not the due process clause.

Telephones/Attorney Consultation
United States v. Noriega, 917 F.2d 1543 (lIth
Cir.1990). At n.lO: "It is not unusual or unreasonable to condition the use of telephones by
penal inmates on monitoring of the telephone
calls by the authorities charged with the responsibility of maintaining the security of the
penal facility." The district court should determine whether General Noriega had a reasonable expectation of privacy in his telephone conversations with his defense attorneys after signing a release acknowledging
that all his telephone calls would be recorded.

Procedural Due Process-Disciplinary
Proceedings/Personal Property
Gaston v. Taylor, 918 F.2d 25 (4th Cir.1990).
The plaintiff was issued an altered pair of jeans
from the prison laundry; he was later charged
with possessing contraband, defined as "anything not specifically approved for the specific inmate who has possession of the item."
Prisoners are entitled to prior notice of
prohibited conduct before severe sanctions
are imposed. A15-day suspended sentence
might not be "severe" in itself, but its potential effect on the plaintiff's parole opportunities "entitle[d] him to at least minimal notice
that his conduct was prohibited." (28)
Because prison officials need to control inmate possessions and can't list every prohibited item, they may "switch the burden" and
direct inmates to possess only approved items,
as long as there is a clear definition of what
items are approved. The plaintiff's allegations
that he was issued the pants in the prison
laundry room, that other inmates wore similarly altered clothing without reprimand, and
he had never seen a rule or regulation imposing a duty to turn in altered clothes from the
prison laundry, created a genuine issue of fact
as to the adequacy of notice.

THE NATIONAL PRISON PROJECT JOURNAL

Protection from Inmate Assault/
In Forma Pauperis
Street v. Fair, 918 F.2d 269 (1st Cir. 1990).
The plaintiff alleged "a campaign of violent
intimidation conducted by certain inmates
against other inmates in connection with
seating in the prison dining hall," in which inmates were threatened with assault if they
persisted in sitting in the wrong place. He alleged that "many inmates" had been "seriously
injured" and identified one who had been stabbed He himself had been told many times that
he could not sit at a particular table and had
once been threatened with physical injury.
These allegations did not make out a constitutional claim. Although a prisoner subject
to "constant threats" may obtain relief without waiting to be assaUlted, this plaintiff was
neither physically attacked nor subjected to
"constant threats" of violence.
The district court should not have dismissed
the plaintiff's complaint sua sponte, with
prejudice; it was not frivolous, and dismissal
for failure to state a claim is restricted under
Neitzke v. Williams, 109 S.Ct.1827 (1989) to
complaints containing "inarguable" legal conclusions or "fanciful" factual allegations. This
complaint's deficiencies could conceivably be
cured by amendment and the plaintiff should
have had the opportunity to try.

Contempt/Discovery
Lamar Financial Corp. v. Adams, 918 F.2d
564 (5th Cir.1990). Acontempt fine of $500 a
day for each day of noncompliance with a
document production order was within the
district court's discretion.

Religion-Practices-Names/Personal
Involvement and Supervisory Liability
Bilal v. Davis, 918 F.2d 723 (8th Cir.1990).
The plaintiff claimed that he was expelled
from a disciplinary proceeding for refusing
to respond to his committed name. His First
Amendment claim that he had a right to be
addressed by his Muslim name, dismissed by
the district court, should be reconsidered in
light of Salaam v. Norris, 905 F.2d 1168 (8th
Cir.1990).

Correspondence-Legal and Official/
Injunctive Relief-Preliminary
Diamontiney v. Borg, 918 F.2d 793 (9th Cir.
1990). Defendants refused to deliver the
plaintiff's mail, including his legal mail, because it did not bear his name of commitment (Dreamer) rather than his current, preferred name (Diamontiney). The district
court properly granted a preliminary injunction requiring prison officials to add (not
substitute) the preferred name in their computer program or otherwise ensure that the
plaintiff got his mail. The plaintiff was not
reqUired to show "actual injury or prejudice
THE NATIONAL PRISON PROJECT JOURNAL

to potential or pending litigation"; the purpose of injunctive relief is to prevent injury.
The court's inability to communicate with
the plaintiff constituted irreparable harm.

Mental Health Care/Medical Care- .
Standards of Liability-Deliberate 'J;
Indifference/Medical Care-Staffilig-,i....
Qualifications/SummaryJudgmellt/
Evidentiary Questions
.. '
Smith v.]enkins, 919 F.2d 90 (8th Cir::J990).
The plaintiff was prescribed sinequan\~ld
Prolixin before his incarceration; a prison
doctor terminated his medication, claiming
he did so based on his clinical judgment.
The deliberate indifference standard can be
met by showing "[g]rossly incompetent or inadequate care," "a doctor's decision to take an
easier and less efficacious course of treatment'" or "[m]edical care so inappropriate as
to evidence intentional maltreatment or a refusal to provide essential care:' (93, citations
omitted)
Thus, the district court erred as a matter Of
law in ruling that mereProOf of medical
care consisting ofdiagnosis only SUfficed to
disprove deliberate indifference. Smith is entitled to prove his case by establishing that
Dr. Oglesby's course Of treatment, or lack
thereof, so deviatedfrom professional standards that it amounted to deliberate indifference....
Id.
The court is "particularly troubled" by the
absence of the plaintiff's medical records
from the court record; they must be reviewed
before the claim is dismissed.
At n. 4: The court is also troubled by absence of evidence of the appropriate standard of care. The plaintiff had moved for the
appointment of an independent psychiatrist
pursuant to Rule 706, F.R.Ev., and the court
holds "it would be incongruous to deny the
nonmoving party the ability to present the
necessary proof to withstand a motion for
summary judgment-as the district court did
here by denying the Rule 706 motion-and
then grant summary judgment against the
nonmoving party simply because the
nonmoving party has failed to come forward
with such proof:'
The district court is instructed to review
the plaintiff's medical records; it "may" appoint an independent psychiatrist to review
them and provide an opinion as to the proper
diagnosis and the appropriate standard of
care, or the court "may deem it advisable" to
obtain an opinion from the plaintiff's previous physician concerning the nature of his
prior treatment and the necessity of continuing his medication.

Drug Dependency Treatment

1990). An allegation that the plaintiff received no medical attention for drug withdrawal symptoms for four days, accompanied
by callous remarks from the prison nurse, was
not frivolous under the deliberate indifference standard. The district court conducted a
Spears hearing and decided the plaintiff was
not credible; the court of appeals disapproves
this conclusion, noting that his allegation "is,
at least, not contradicted" by the medical
records in evidence.

Attorneys' Fttes and Costs
AssociatedlIPilders & Contractors v. Orleans
Parish Schooli1oard, 919 F.2d 374 (5th Cir.
1990). Where a civil rights suit is resolved
without a judgment, a party has prevailed for
fees purposes if it shows "(1) that the goal of
the law suit was achieved, and (2) that the
suit itself caused the defendant to remedy the
discrimination:' The defendant can refute
such a showing "only by showing that its conduct was a 'wholly gratuitous response to a
lawsuit that lacked colorable merit:" (378, citations omitted) In this analysis, "the chronology of events is an important consideration"
because defendants rarely confess that they
were influenced by litigation.
The importance of this case is that it ac- .
knowledges the language in Texas State
Teachers Assn. v. Garland Independent School
District, 109 S.Ct.1486 (1989) concerning the
necessity of a "change in the legal relationship
between the parties" without concluding that
it changes the established "catalyst" analysis.

Injunctive ReliefChanged Circumstances
Orantes-Hernandezv. Thornburgh, 919 F.2d
549 (9th Cir.1990). At 546: "Permanent injunctive relief is warranted where, as here, defendant's past and present misconduct indicates a
strong likelihood of future violations."

Protection from Inmate Assault/
In Forma Pauperis
Hernandez v. Denton, 919 F.2d 573 (9th Cir.
1990). On remand from the Supreme Court for
reconsideration under Neitzke v. Williams, 109
S.Ct.1827 (1989), the court remands the
plaintiff's claim that he was drugged and
raped over 28 times by inmates and officers to
permit the plaintiff to file an amended complaint providing more factual information.
The court cannot conclude that all 28 rapes
are "fantastic or delusional" without making
the kind of credibility judgment forbidden by
Neitzke. The court takes "guidance" from the
evidentiary rule concerning judicial notice
and concludes the plaintiff's claims are not
contrary to facts that are "generally known"
and their truth cannot be verified from any
"readily available, accurate source:'

Pedraza v. Meyer, 919 F.2d 317 (5th Cir.
SPRING 1991 9

Procedural Due Process-Disciplinary
Proceedings/Habeas Corpus
Blair-Bey v. Nix, 919 F.2d 1338 (8th Cir.
1990). The plaintiff lost a year's good time in a
disciplinary proceeding. He could not challenge the disposition under § 1983 without exhausting state remedies even though he was
serving a life sentence and the loss of good
time would have no effect unless his sentence
was commuted to a term of years. The district
court properly stayed his § 1983 suit.

available at the prison; not all inmates were
tested for TB on intake and two-step testing
(follow-up eight to ten weeks later) was not
done. The administration of tuberculosis
medication was deficient. Defendants' ignorance and lack of administrative guidance
"caused delayed diagnoses of active cases and;
inadequate responses when active cases were ;J
discovered." Neglect in the treatment of sev-.
eral individual cases is described, along with"~
inadequate methods of investigating the cqti~
tacts of identified TB cases.
" f,(
'{'J1

Protective Custody

c.n. V. Sullivan, 920 F.2d 483 (8th Cir.1990).
Prisoners in the federal government's witness
protection program complained that double
ceIling them breached their security because
their cellmates had access to their personal
effects and might learn their identities.
At 485: "Double ceIling is not unconstitutional for a general prison population absent
deprivation of food, medical care, sanitation,
increased violence, or other conditions intolerable for incarceration." Whether a protective custody inmate needs protection from
his cellmate is better left to prison officials.
The district court's finding of no constitutional violation is affirmed.
Medical Care-Standards of LiabilityDeliberate Indifference/Attorneys'
Fees and Costs/Class Actions-Effect
of Judgments and Pending Litigation/
Procedural Due Process
DeGidio V. Pung, 920 F.2d 525 (8th Cir.
1990). The plaintiffs alleged that prison officials' response to a tuberculosis epidemic constituted deliberate indifference. The district
court found that their conduct, "taken as a
whole" (531), constituted deliberate indifference, but found that they had cleaned up
their act by the time of triaL It therefore
granted no relief, but awarded attorneys' fees
on a "catalyst" theory.
Afinding of deliberate indifference does
not require a showing of intent; it is sufficient to show that defendants have
"disregard[ed] a known or obvious risk that is
very likely to result in the violation of a
prisoner's constitutional rights." (532, quoting
Canton). At 533: "...[A] consistent pattern of
reckless or negligent conduct is sufficient to
establish deliberate indifference to serious
medical needs."
The district court's finding of deliberate indifference was supported by evidence that
the prison "lacked adequate organization and
control in the administration of health services" in that "no one was responsible for the
overall supervision and control of health services" until the hiring of a medical director
with public health training in 1986. There
was no written protocol concerning TB testing and control; little information on TB was
10 SPRING 1991

Good Time/Ex Post Facto Laws
Story V. Collins, 920 F.2d 1247 (5th Cir.1991).
Retroactive application of a good time statute
that is less favorable to the prisoner than the
statute effective at the time of the offense
would violate the Ex Post Facto Clause.

Procedural Due Process-Disciplinary
Proceedings/Qualified Immunity
Engel V. Wend!, 921 F.2d 148 (8th Cir.1990).
After Superintendent V. Hil!, 105 S.Ct. 2768
(1985), reasonable prison officials would
have known that disciplining someone in the
absence of any evidence supporting the
charge denied due process.
The plaintiff wrote prison officials a note
stating that two other inmates were in danger. Plaintiff was convicted of threats or intimidation, obstructive or disruptive conduct,
and misuse of communications, and a state
court reversed the conviction finding a lack
of evidence. Defendants did not contest
plaintiff's claim that this judgment was preclusive on the merits.

Protective Custody/Equal Protection/
Religion-Services Within Institution/Excersise and Recreation/
Attorney Consultation
Divers V. Department of Corrections, 921
F.2d 191 (8th Cir.1990). The allegation that
"lock-down protective custody" inmates receive worse treatment than "general population protective custody" and are thereby denied equal protection is not frivolous. More
specifically, the court ruled that denial of all
religious services to these inmates stated a
non-frivolous Eighth Amendment claim; a
claim that exercise time is limited to 45 minutes a week states a non-frivolous Eighth
Amendment claim; a claim that the
plaintiff's class of inmates were permitted to
phone an attorney only if they could prove
they had a court appearance within 30 days
was not frivolous.

Discovery
Fitzgerald V. Patrick, 921 F.2d 758 (8th Cir.
1990). In a police shooting case, the defendants are entitled to qualified immunity, but
the State is assessed costs, including the

plaintiff's deposition costs, because the State
waited ten months after the filing of an
amended complaint to file its motion.

Social and Political Expression/
Transfers
Frazier V. DuBois, 922 F.2d 560 (10th Cir.
1990). An allegation that the plaintiff was
transferred in retaliation for his activities as
chairman of the "Afrikan Cultural Society"
was not frivolous. "Most circuits...have held
that Meachum did not confer on prison
officials unbridled,~iSCretiOn to transfer
inmates in retaliati9n for exercising their
constitutional rigilis."
(561)
t..,

Medical Care-Denial of Ordered Care
Howell V. Evans, 922 F.2d 712 (11th Cir. 1991).
The decedent died of an asthma attack. A
physician, who knew the plaintiff was in
serious condition, ordered appropriate
treatment over the telephone, but did not
order more treatment as his condition grew
worse and did not come to the prison, was not
deliberately indifferent, though he may have
committed malpractice.
Asuperintendent who had been told by the
medical staff that the prison could not
provide adequate treatment to the decedent
and who did nothing to get him transferred or
to improve the prison facilities could be found
deliberately indifferent even if the medical
staff did not specifically request a transfer or
other action.

DISTRICT COURTS
Hazardous Condition and Sustances/
Protection from Harm
West V. Wright, 747 F.Supp. 329 (E.D.Va.
1990). At 332: "[W]here plaintiff does not suffer from any preexisting medical condition
that is aggravated by environmental tobacco
smoke, and where defendants have implemented significant safeguards to protect nonsmokers from environmental tobacco smoke,
the factual circumstances do not support a
claim of cruel and unusual punishment." The
"safeguards" included providing windows,
letting inmates obtain personal fans, and providing the "opportunity to request" double
ceIling with another nonsmoker for honor
housing inmates.

Searches-PersonConvictS/Verbal Abuse
Merritt-Bey V. Salts, 747 F.Supp. 536 (E.D.Mo.
1990). The plaintiff complained about a strip
search on entry to segregation in which one
of the officers remarked, "So, it's not true
what they say about all blacks anyway."
The strip search was justified because the
plaintiff had been charged with two
THE NATIONAL PRISON PROJEO JOURNAL

disciplinary violations in the preceding 15
minutes, one of them involving contraband.
The presence of a female guard did not
violate the plaintiff's rights because she did
not conduct the search and practices
involving "occasional viewing" of nude male
inmates are not unconstitutional. The quoted
remark, which the court states "on its face is
not harassing," was not unconstitutional. "A
single, isolated remark does not comprise a
constitutional violation." (539)
Use of Force
Wrightv. Whiddon, 747 F.Supp. 694
(M.D.Ga.1990). Adetainee was shot dead
when he tried to escape during a court appearance. His use of force claim is adjudicated under the Fourth Amendment rather
than the Eighth because a detainee "has the
status of a presumptively innocent individual... and is therefore more akin to a suspect than a convicted prisoner." (699)
There was a jury question as to the reasonableness of shooting the decedent; despite his
criminal record, he had been repeatedly apprehended by the same defendant without
the use of any force at all even though he was
armed on each occasion, and defendants had
used minimal security precautions in connection with the court appearance. The defendants were not entitled to summary judgment
as to qualified immunity, since immunity
would turn on resolution of the factual dispute.
Contempt
NOWv. Operation Rescue, 747 F.Supp. 772
(D.D.C.1990). Compensatory damages and coercive fines are assessed for contempt of an
order forbidding obstruction of the activities
of abortion clinics. At 777: "Moreover, as additional deterrence, and because plaintiffs
have demonstrated that defendants' activities cause damage to the blockaded clinics,
any future fines will be payable to the clinic
that was the subject of the illegal blockade."
The fines must be tailored to the defendants'
ability to pay. O~eration Rescue will be fined
$50,000 for any future blockade and individual defendants will be fined $5000 each
for violating the injunction, to be doubled for
each succeeding violation.
Medical Care
Williams v. United States, 747 F.Supp. 967
(S.D.N.Y.1990). The plaintiff, a diabetic federal prisoner held at Otisville, developed an
infection in his foot which developed into
gangrene, ultimately requiring the amputation of his leg below the knee. Applying the
"general standard of care for physicians in
New York" (1006), the court finds that the
gangrene and the necessity for amputation
proximately resulted from the negligence of
prison medical staff, based on a long and
THE NATIONAL PRISON PROJECT JOURNAL

complex trial record. Although the Otisville
doctor never held himself out as having expertise in the treatment of diabetics, the fact
that Otisville treated these patients in-house
subjected its staff to the "special standards of
care applicable to the treatment of the diabetic infected foot." (1009) The finding of
malpractice is reached despite the fact that
the plaintiff received abundant and compe-;~
tent medical attention on other occasions l!('
Otisville. The plaintiff is awarded damage§.:of
$500,000.:;~
Exhaustion of Remedies/Law
Libraries and Law Books
Housley v. Killinger, 747 F.Supp.1405 (D.Or.
1990). Federal prisoners bringing Bivensactions for damages must exhaust the prison's
grievance procedures, even though those procedures are incapable of providing damages.
Awarden who followed Bureau of Prisons
law library regulations that had never been
found inadequate under statute or constitution was entitled to qualified immunity. The
law library was open about six hours a day
during the week and for seven and a half on
weekend days. At 1408: "This level of accessibility does not fall below the standard set
forth in Bounds [97 S.Ct.1491 (1977)] or any
relevant constitutional provision."
Juveniles
Grenier v. Kennebec County, Me., 748
F.Supp. 908 (D.Me.1990). The 15-year-old
plaintiff was confined for four days in an
adult jail.
There was no private cause of action under
the Maine Constitution for actions taken before the effective date of the Maine Civil
Rights Act (a statute similar in effect to
1983). There was no private right of action
for violations of the Maine Juvenile Code under the strict test applied under Maine law.
The FederalJuvenileJustice Act was violated when the defendants placed the plaintiff in a secure facility that was not the least
restrictive alternative, was not in "reasonable
proximity" to his family and home community, and did not provide services enumerated in the statute.
At 916: "The question is not, therefore,
whether Congress implied a private right of
action in the Juvenile Justice Act. The proper
question is whether the Juvenile Justice Act
creates federally protected rights which may
be enforced through private actions under
section 1983." The answer is "yes" unless the statute relied on does not create enforceable rights
or Congress has specifically foreclosed a remedy
under § 1983. The court concludes that theJuvenile Justice Act may be enforced under § 1983.
Modification of Judgments
United States v. County ofNassau, 749

F.Supp. 463 (E.D.N.Y.1990). The county was
not entitled to modification of a consent decree concerning waste management where
the alternatives it proposed were available at
the time the decree was signed and there
were no new or unforeseen conditions and
no shOWing that the modification advanced
or was essential to the purpose of the decree.
Suicide Prevention/Qualified Immunity
Zwalesky v. Manistee County, 749 F.Supp.
815 (W.D.Mich.1990). The decedent was arrested, drunk, an<!lithreatened to kill his relatives, his wife, a'14 himself on the way to jail,
in addition to b#ging his head on the protective screen in the police car. The jail supervisor therefore put him in a detoxification cell
where he was found dead 90 minutes later,
having hanged himself with his shirt.
All the individual defendants are entitled
to qualified immunity from the Estelledeliberate indifference claim. At 819: "The 'right'
that is truly at issue in the present case is the
right of a detainee to be screened for suicidal
tendencies and to have steps taken that
would prevent him from taking his own life."
This right is not clearly established.
Procedural Due ProcessWork Assignments
Glidden v. Atkinson, 750 F.Supp. 25 (D.Me.
1990). Prisoners do not have a property interest in obtaining or keeping prison jobs unless
such an interest is created by state laws or
regulations. The plaintiff's failure to cite
such a state law basis for his claim requires
dismissal of his complaint. At n. 2: The alleged promise of a prison official that the
plaintiff would keep his job did not have the
effect of law or regulations.
Juveniles/Access to Courts
Shookoff v. Adams, 750 F.Supp. 288
(M.D.Tenn.1990). The previously certified
plaintiff class consisted of all present or future inmates of three "juvenile" correctional
facilities, who were persons 12 to 20 years old
who had been found guilty of committing
delinquent acts.
At 291:
The same concern for the seriousness ofjuvenile detention which requires the recognition thatjuveniles have constitutional rights
to proceduralprotections atjuvenile commitmenthearings motivates this Court to
recognize that incarceratedjuveniles have a
right ofaccess to the courts comparable to incarcerated adults.
At 292:
Ajuvenile's needfor access to the courts
may even begreater than an adult's in that
access to the courts assists the rehabilitative
process.... Whereas adult inmates do not have
a constitutional right to rehabilitation, this
SPRING 1991

11

is arguably not the casefor juveniles. [Footnotes omitted]
The scope of states' affirmative obligations
to provide court access is succinctly reviewed
(291-92).
The right of court access was denied where
the juvenile prisons did not have law libraries and provided no assistance from legally
trained persons. Their court access program
was limited to telling inmates how to contact
local legal aid or legal services agencies,
which in most cases were unable to or did
not assist them. The effect of a new Public
Defender Act on this population was "largely
wishful thinking" because of the offices' inadequate staffing and funding and the lack
of authorization for assistance in civil rights
lawsuits or at the pre-pleading stage.

Pro Se Litigation/Service of Process
D'Amario v. Russo, 750 F.Supp. 560 (D.R.I.
1990). Apro se plaintiff who has diligently
tried to serve the defendants may be granted
some leniency in enforcing the technical requirements of timely service.

Medical Care/Municipalities/
Medication
Lowe v. Board ofCommissioners, County of
Dauphin, 750 F.Supp. 697 (M.D.Pa.1990). The
plaintiff's gout medication was confiscated on
his admission to prison; despite his repeated
complaints to every nurse on duty, he did not
get the medication for two days, allegedly because they could not contact his doctor.
At 700: "[W]e cannot say at this stage of the
litigation that an alleged policy of indiscriminately removing any kind of medication from all entering inmates may not lead
to an Eighth Amendment claim." The allegations do not state a claim against the municipality because they do not spell out how the
policy was established. Allegations that every
medical staff member the plaintiff spoke to
described the policy as "policy" and that it
was enforced uniformly by prison staff do
not suffice.

Cruel and Unusual Punishment/
Financial Resources
Kitt v. Ferguson, 750 F.Supp.1014 (D.Neb.
1990). At 1019: "...[A] superintendent or warden, with policy-making authority, can be
held liable for operating a prison with
unsanitary and inhumane conditions."
Conditions at the Medium Security Unit of
the Nebraska State Penitentiary do not violate the Eighth Amendment but "are potentially close to creating intolerable conditions
for prison confinement unless remedial measures are implemented." (1019) At 1022:
As the standards of decency which mark
theprogress ofsociety evolves[sic) the State of
Nebraska may somedayfind the condition at
MSU violative of the prisoners' rights unless
12 SPRING 1991

steps are taken now, and in the future, to correct some ofthe mostglaringproblems in the
physicalplant. Continued blindness to such
things as leaking waste waterpipes, pervasive
body waste odors, etc., under the guise of budgetary constraints can potentially amount to
obduracy and wantonnessfor the interest
and safety ofinmates.

Discovery/Municipalities
Everitt v. Brezzel, 750 F.Supp.1063 (D.Colo:.
1990). Discovery of police files is governed,~y
federal law and not state law privileges and.
in camera inspection procedure. In camera
inspection is not required in every case and is
problematical because courts are not in as
good a position as plaintiff's counsel to evaluate the importance of the information to the
plaintiff's case and because in camera procedure deprives the court of the benefit of argument.
The preferable procedure is "in camera inspection" by plaintiff's counsel under an order of confidentiality, similar to the practice
in cases involving trade secrets. Also, in their
initial response under such an order, defendants may redact material they regard as "so
sensitive or confidential that it should be
shown to nobody." Counsel can then confer
about the redactions.
The court cites Monell as supporting an additional discovery ruling. At 1069: "[A] plaintiff asserting municipal liability under
Monell is entitled not only to factual information concerning an officer's alleged past
violations, but also to information concerning his superiors' knowledge of those violations and What, if anything, they did about
them." Thus, "evaluative summaries," protected under some pre-Monell case law, "may
be highly probative in a case concerning municipalliability."

Class Actions-Conduct of Litigation/
Damages-Assault and Injury
Cimino v. Raymark Industries, Inc., 751
F.supp. 649 (E.D.Tex.1990). In a mass tort
class action, the court decides damages will
be awarded to class members based on the actual damages awarded by juries in a sample
of 160 cases randomly selected and tried
from a universe of 2,298. "Whether it is by
the mechanism of the Court's plan or by some
other procedure approved or suggested by the
Court of Appeals, without the ability to determine damages in the aggregate, the Court
cannot try these cases." (667)

Access to Courts-Law Libraries and
Law Books
Messere v. Fair, 752 F.Supp. 48 (D.Mass. 1990).
The plaintiff was transferred under the
Interstate Corrections Compact from Massachusetts to a Connecticut prison that lacked

Massachusetts legal materials. He was unable
to obtain attorney assistance for his Massachusetts post-conviction and civil rights proceedings. Connecticut prison officials refused
either to provide Massachusetts materials or
send him. back to Massachusetts.
The plaintiff was denied access to courts.
The availability of photocopies from the
Connecticut state library did not provide
adequate access "[b]ecause specific citations
are required to access materials from the state
library... It is doubtful that many lawyers and
judges could do mirymally adequate research
if they were requif~d to request materials by
mail via specific ~tations." (50) The court
distinguishes a prior First Circuit case in
which a prisoner failed effectively to pursue
avenues of legal assistance; this plaintiff
"actively sought legal assistance, but fell
through the cracks in the system through no
fault of his own." (50)
The court rejects the argument that
prejudice must be shown to establish a denial
of court access, since the right is "an aspect of
due process" and due process claims (or other
fundamental right claims) do not require
proof of injury.

Correspondence-Legal and Official/
Federal Officials and Prisons/
Qualified Immunity/Mootness/
Injunctive Relief
Burt v. Carlson, 752 F.Supp. 346 (C.D.Calif.
1990). At 348: "Since Wolff, federal courts
have held that properly identified mail
addressed to an inmate from his attorney, the
courts, or from various government agencies,
may not be opened outside the presence of the
inmate and, if opened, may be inspected only
for contraband, and not read or copied."
Requirements of identification of legal mail
are evaluated under the Procuniernarrow
tailoring requirement. The Federal Bureau of
Prisons' requirement that legal mail be marked
"Special Mail-Open Only in the Presence of
Inmate," to the exclusion of any other
language, is unconstitutional as applied to
markings that are "patently sufficient to
notify the prison officials that the mail is
claimed to be legaL" (349)

FEDERAL RULES
Discovery
Klein v. King, 132 F.R.D. 525 (N.D.CaL 1990).
This includes a magistrate's protective order
and discovery planning order in a commercial case that is worth looking at as a model
of early judicial intervention and control
over discovery in a complex case. •

John Boston is a staffattorney at the Prisoners'Rights Project, Legal AidSociety ofNew
York. He regularly contributes this column
to the NPPJOURNAL.
THE NATIONAL PRISON PROJECT JOURNAL

(con'tfrom page5)

State must grapple with. An ad hoc approach when a prison crisis surfaces is
not the answer. After some 14 years of involvement in the ACI litigation, I concluded it was time for someone who
might have a new perspective to take
over and resolve any future litigation. I
asked Chief Judge Francis J. Boyle to reassign the case of Palmigiano versus "various Governors, et al" to another judge.
This request has been granted. In divorcing myself from future prison conditions
suits, I leave with certain suggestions
born of experience and trial by ordeal.
Now is the time to institute safeguards
that will forestall and hopefully prevent
a recurrence of the past frustrating,
costly and devastating ills. If a program
is not vigilantly and aggressively pursued, it will only be a very short time before overcrowding will again reach crisis
proportions. It seems to me the legislators
must seriously consider, study and enact
legislation to accomplish proposals that
have been presented to this Court in the
various conferences and hearings we
have held. I set forth these proposals as
submitted:
OPTIONS FOR SENTENCED POPULATION
1. Emergency Overcrowding Release
Act. More than 13 states have enacted legislation that requires the Director of Corrections and the Governor to declare a
state of prison overcrowding emergency
when the population exceeds design capacity, thereby expediting by 90 or 180
days parole consideration for those offenders who are approaching their parole eligibility dates. Rhode Island does
not have any such legislation. I am advised that a proposed draft for such a
law was submitted to the Executive
Branch for review during the 1989-90
session and is still pending.
2. Intensive Supervision in Probation. Anumber of states have created
low-caseload, high-supervision programs
for sentenced offenders who are usually
also required to pay victim restitution,
perform community service, hold a job,
submit to random urine and alcohol testing, etc. The State of Georgia has the bestknown program, adopted in 1982 to alleviate prison overcrowding and rising
prison costs. As of January 1, 1987, Georgia reports that more than 4,000 offenders participated in the program with an
80-90% success rate (more than double
the success rate of persons serving regular prison sentences) at savings of at
least $7,000 for each offender diverted
from prison to the program.
THE NATIONAL PRISON PROJECT JOURNAL

This proposal should markedly differ
from routine supervision.
3. House Arrest, With and Without
Electronic Monitoring. Numerous jurisdictions have developed house arrest programs for [the] sentenced population
(both at the front end as an initial sen- ~'
tence and at the back end as an early redt:
lease program) and pretrial detainees.;~>
Sometimes utilized with an electronic>
monitoring or surveillance system (wrIst
or ankle bracelet, electronically con~{~

house. This should be expanded and
pressed to completion with legislation enacted to permit the Department of Corrections to place inmates in such facilities.
6. Sentencing. Anumber of states
have, in addition to the options set forth
above, reduced certain sentence lengths,
expanded or revised good time credit
policies, adopted community corrections
laws and enacted first-time eligibility
presumptive parole laws, all designed to
alleviate overcrowding.

nected to a phone), this option is also often combined with victim restitution,
community service and probation supervision. The Florida program, which has
had 20,000 participants in the first four
years, has a very high success rate and
[the program] costs $3.69 a day to supervise each offender as compared to $32.20
per day to keep an offender in prison.
And this does not take into account the
$30 to $35 million construction costs to
build a 600-person prototype correctional institution.
Rhode Island has enacted such a law,
R.I.G.L. 42-56-20.2. I urge its expansion
and full utilization.
4. Restitution, Community Service
Order, Intermittent Confinement, Day
Fines (sliding scale based upon offense
and ability to pay). Many jurisdictions are
relieving overcrowding by utilizing one or
more of these sanctions, often in conjunction with probation or house arrest. To insure uniformity and provide guidance for
the state judiciary, clear-cut legislation
should be proposed and enacted.
5. Halfway Houses and Other Community Placement. Numerous jurisdictions have utilized a variety of community-based programs, some operated by
state and local government agencies and
some run by private agencies and church
groups. These are often combined with
probation and drug or aicohol treatment
programs and are far more successful
than in-prison treatment programs.
I understand that Rhode Island has entered into a contract with Massachusetts
Half Way Houses, Incorporated to locate
and place up to 30 inmates in a halfway

OPTIONS FORPETAINEE POPULATION
1. Pre-Trial Release Services. throughout the country, state-run and privately
run agencies have developed a coordinated set of mechanisms to reduce pre-trial
populations which include Release on Recognizance Units, Conditional Release Programs, and Third Party Custody Programs,
all of which may be combined with supervision, counseling, urinalysis, etc.
2. Bail Programs. Every jurisdiction
has a variety of bail options available.
The key element is a bail agency, public
or private, that screens every detainee
immediately after arrest and then makes
recommendations to the court. The options include deposit bail (usually 10% of'
the total), surety bail or property bond
and, in many jurisdictions, the bail
agency has funds available to insure that
indigent or poor detainees do not sit in
jail for months because of their inability
to provide a relatively small amount of
bail. Programs like this have had dramatic impact on the pre-trial population
in New York, Philadelphia, Mobile and
other jurisdictions.
The Emergency Overcrowding Relief
Fund is presently satisfying this need. I
cannot overemphasize the importance of
its continuation. Some authorities predict
that without it, the new facilities will be
overcrowded within six months. The
present private bail fund, R.I.G.L.12-16-25,
is inadequate-it cannot and has not
functioned to date.
3. Prosecutorial Options. In many jurisdictions, the prosecuting agency, together with the courts, has developed a
series of programs to expedite the criminal process thereby resulting in fewer
detainees and detainees being held for
shorter periods of time. These include
early screening of cases, warrant screening, bail and release recommendations,
diversion of cases from the criminal justice system, assigning cases to special
units, charge consolidation, calendar control and the use of accelerated calendars.
The State advises me it has several
variations of some of these proposals unSPRING 1991

13

der study and consideration. That is commendable. I would only suggest some responsibility be assigned to assure the
ideas are enacted. To accomplish the
foregoing, tough political decisions will
have to be made. If they are not made,
the State faces a future of costly and divisive confrontations about the overcrowding dilemma.
I leave intact my last order. It is now
for Judge Lagueux, to whom the case has
been assigned, to determine whether it
should stand, be modified, or be rescinded.
Some while ago, I wrote a paper which
I never published in deference to all that
had been written by learned scholars on
the subject. However, for what it is
worth, I offer an excerpt from it now as
a conclusion to this chapter of my judiciallife; a chapter which has been both a
rewarding and an exciting experience.
Before doing so, however, I must say that
credit is due to the ProvidencejournalBulletin for its unstinting editorial support of the Court's position. The journals
reasoned, articulate endorsement did
much to deflate the not-infrequently irresponsible posturing of local officials.
Without this support, I do not doubt that
the prestige of the Court in this state
would have been seriously damaged. Had
that happened, I am sure the judicial task
would have been infinitely more difficult. The editorial page of the journal
may not always be directly aligned in
support of some of the present approaches, but that is understandablelike all problems, there is no simple answer. I, personally, see no other acceptable alternative to what has been judicially ordered. And thiS, in and of itself,
may be good reason for another jurist's
thinking. With that said, I quote from my
hitherto unpublished paper.
"The need for change in the Rhode Island prison system, however politically
unpopular, was hardly ever denied; it simply remained dormant as an issue of public debate until the court intervened and
opened a Pandora's box that bared the
evils and miseries of our institutions,
anachronistically eXisting in what we like
to believe is an enlightened democracy.
"In Rhode Island and elsewhere, the coercive nature of judicial intervention has
stimulated endless debate over prison issues from a variety of perspectives. There
are those who insist that the control of
prisons with all its economic burdens is
exclusively the province of lawmakers
who alone should decide the priorities of
social reform. The people, appalled at the
rising crime rate and shocked by daily
14 SPRING 1991

stories of violent crime, have little compassion for convicted murderers, rapists,
burglars and arsonists. As a consequence,
they see little sense in substantial expenditures for prison reform at the expense
of the needs of the poor, the handicapped
and the aged. Correctional officers, who
must deal with incorrigibles at the risk
of their own lives every day, resent the
intrusion on their authority; an authority they feel is necessary to control a
prison population. The courts, I believe,t'
see principally the Constitution, with its
mandate to strike down any law or practice which offends a fundamental constitutional guarantee, and thUS, act without
concern for the attitudes of the legislative and executive branches of the government. Prisoners, filled with fear and
distrust, see only public apathy and the
toleration of inhumane, indecent, and
brutaliZing conditions.
"There is little I can add to the perceptive studies and research reports on
prison reform which have been written
by learned administrators and academicians. However, I feel it is worth saying
that prison class action suits are an important-and frequently the only-means
for alleviating unconscionable prison
conditions. The coercive nonpolitical
force of the court is often essential for
the realization of drastic changes. This is
not to say that the political body is deaf
and blind to inhumane conditions. The
contrary has been proven in Rhode Island where the Governor and the legislators played an important role in reforms.
It must, however, be realized that politicians inevitably walk a tightrope; a
strong political base is neither fostered
nor nurtured by attention to prison reform at a time when the needs of the
poor and unfortunate members of our society are so compelling. Acourt, on the
other hand, may accept political condemnation, admitting from its safe judicial
bastion that there is no great credit in
expostulating unpopular constitutional
rights. That is the role of the judge, and,
when he is immunized with life tenure,
it is not a difficult one. The desire for
popularity and plaudits is inimical to the
role a court must play, and a sacrilegious
stigma on the character of the judge who
caters to such human foibles.
"True, the court's authority has limitations, but its infinite ability to rub the
raw nerves of a society, calloused to a
constitutional violation, highlights the
social ill that cannot thereafter be ignored; it fashions orders that arguably
belong to other branches of government,
and it may have problems implementing

them because of economic resources beyond its control. I believe, however, the
record shows that the courts have, over
time, experienced marked success in the
execution of the remedies they have
fashioned as well as the eventual acceptance of their orders by the public at
large.
"I do not subscribe to the theory that
courts have assumed unwarranted power
in fashioning orders as in the
Palmigiano v. DiPrete case. The court
was created to shire equal responsibility
with the executi* and legislative arms.
Our founders deli'berately gave the
courts equal sta'tiding in deciding the
cases thrust upon them. Properly, the decisional process necessarily involves a
limited political role; it must be this way,
for the only alternative is to grant omnipotence to the legislative process, regardless of how arbitrary or unconstitutional its actions may be."
It is my hope the Court's future role in
this case will be minimized. It, of course,
can be if the executive and legislative
branches transcend purely political considerations. In the balancing of needs,
those of the correctional facilities must
be considered fairly and knowledgeably.
Our authorities must understand the factual and constitutional concepts involved. To accomplish this, I suggest that
the modus operandi adopted by the
Court be considered. Just as I needed a
master to be the "eyes and ears" of the
Court, so do the Governor and legislators
need a person, a sort of ombudsman, to
make suggestions and keep them alerted
to the conditions in our correctional institutions. Such a person as my master, J.
Michael Keating Jr., who is an expert and
who, divorced from politics, would
present the case to them and the people
of this state in a reasoned and impartial
manner. We cannot afford to slide back
into the quagmire from which we have
just extricated ourselves. I do not intend,
by this suggestion, to set forth the details
of such an appointment but rather an
idea; an idea which, if developed, could
be priceless in both its economic contribution and its contribution to humanity
and decency in the treatment of this
state's prisoners.
With the foregoing statement, I hereby
recuse myself from all future suits involving the Adult Correctional Institution....So
Ordered.
January 10, 1991. ..

The Honorable Raymond] Pettine is a
Senior u.s. Districtjudge, u.s. District
Court ofRhode Island.
THE NATIONAL PRISON PROJECT JOURNAL

Louisiana Death Row Gains
Greater Legal Access
he main road to the Louisiana
State Prison in Angola, Louisiana,
unlit for 20 miles, twists and turns
towards the entrance to one of the
largest prisons in the United States.
Death row is located near the main gate
on what one prisoner described as a
"prison plantation...naturally fortified in
the middle of the most rugged and
desolate regions of the state.."! The
difficulties of navigating the access road
to the prison pale in comparison to the
difficulty death row prisoners have had
in attempting to exercise their most
fundamental of all constitutional rights,
the right of access to the courts.
When the National Prison Project
responded to pleas for legal assistance
from Louisiana death row pro se litigants, we found approximately 40
condemned men existing under unreasonable restrictions on their ability to
communicate with an attorney, virtually
blocking them from preparing meaningful petitions for post-conviction relief or
complaints to challenge the conditions of

T

their confinement.
When this case was filed in January
1989, the following conditions and th~Y
effects prevailed: Condemned men }?
(Louisiana has no women on death row),
all either disproportionally poor, illiterate,
or black were routinely and arbitrarily
denied any face-to-face visit with their
attorneys. The attorney, having prearranged the visit, often waited in a
locked and unventilated room. Behind a
wall and a dense mesh wire screen was
another unventilated and claustrophobic
room. The guard would corral the
prisoner, always in leg irons and handcuffs locked to a waist chain, into this
second room. Sometimes a "black box"
was attached to the handcuffs to further
restrict movement of the prisoner's wrists.
Only one legal visit could occur at a time,
creating more delay.
Dense mesh screen prevented either
party from seeing the face of the other.
To communicate with someone of olive
or dark complexion was like communicating with a shadow. Attorneys, in a

vain attempt to see, would hold hands to
forehead as light shields while peering
through the wire screen. Of course the
prisoner's handcuffs prevented him from
doing this. Only with enormous difficulty could the prisoner and attorney
read documents through the screen and
they could never simultaneously review
them. The prisoner could not comfortably turn the pages of his legal materials.
Prisoners stood up to reduce pressure on
their hands and frequently complained
of welts causeq, by the scraping of
handcuffs on t~eir skin as they attempted to tUiri pages. To exchange
confidential legal documents, a prison
guard would have to be summoned to
carry documents between a prisoner and
an attorney. The procedure required that
the guard remain out of sight long
enough to read the prisoner's confidentiallegal documents.
No context exists in which a person's
right to a contact visit with an attorney
is more critical than when this person is
scheduled to be killed by the State. Richard H. Burr, director of the Capital Punishment Project of the NAACP Legal Defense and Educational Fund, argues that
noncontact visiting arrangements substantially interfere with aspects of the
attorney-client relationship which are
unique to the representation of condemned prisoners. He outlines why this

Some of the more than 30 death row plaintiffs in Bates v. Lynn are among the group pictured above at a religious seminar.
Named plaintiff Abdullah Hakim EI-Mumit is seated third from left, front row. Former named plaintiff Dalton Prejean, far
right, second row, was executed in 1990.

THE NATIONAL PRISON PROJEO JOURNAL

SPRING 1991

15

attorney-client relationship requires a
Louisiana Bar Association would help
tions of confinement.
qualitatively different degree of trust
locate attorneys to volunteer for
Louisiana death row was on extended
and openness than that in non-capital
appointment to death penalty cases. Once 23-hour lockdown with no direct access
cases: (1) the life history of the prisoner
an attorney was identified, the Louisiana
to a law library. In order to obtain legal
is the richest source of mitigating factors. Supreme Court, without statutory
assistance, these prisoners had to rely on
The prisoner must fully participate in
two "inmate counsel substitutes." These
authority to do so, would appoint the
the discussion. Therefore, a trusting rela- lawyer to the post-conviction matter.
two "substitutes" had received little
tionship must be developed wherein the
training from LDOC and even this had
Due to the voluntariness of this system,
prisoner is able to reveal experiences and
been discontinued for two years prior to
the appointment of an attorney was not
memories which may prove to be embarthe filing of the lawsuit. Legal assistance
guaranteed. Thus, death-sentenced
prisoners remained at risk of going
existed in name only.
rassing, humiliating and extremely painful. (2) More and more, a capital postwithout legal advice on their postThe inmate counsel substitutes were
conviction petitioner must demonstrate a conviction matter for years. Nick
essentially book ~etchers. Upon the
colorable showing of innocence in order
Trenticosta, director of the Louisiana
prisoner's request. substitutes would
to receive merits review of constitutional Death Penalty Resource Center,3 explains
deliver a maximum of three law books
per request for the prisoner's use for
that it is not uncommon that once one of
claims which were not properly raised at
three days. The prisoner had to know
trial or on appeal. Thus, a prisoner must
these appointments is made, Trenticosta
the exact citation of the book,
trust the attorney enough to tell the
complete, absolute, and unadulterotherwise he would not receive it;
ated truth about the events of the
nor were photocopies of any
crime and his role in it. (3) The asmaterials to keep prOVided.
sertion of all available constituFurther, the prisoner was not
provided an inventory of the minitional claims is crucial in capital
cases. The attorney must help the
law library or main law library's
substandard law book collection.
person overcome the fear that the
Lastly, many of these men, due to
pursuit of constitutional claims pertaining to sentencing only is not
intellectual and/or educational
done at the expense of the pursuit of
deficiencies, were unable to use the
conviction-related claims. This fear
legal materials once provided.
The substitutes were overworked. '
can only be overcome through a relationship of profound trust between
They prOVided the same "service" to
the attorney and prisoner. Prisoners
approximately 51 non-deathon death row are more prone to desentenced prisoners who were also
pression, withdrawal, loss of faith in
on 23-hour extended lock-down. In
authority figures, loss of hope, and
.Q addition, they were responsible for
an emotional incapacity to mount a
{ representing these prisoners in
defense. Most of the people presently
~ disciplinary court. Communication
Z between the substitutes and
sentenced to death have serious men- NPP attorney Stuart Adams (center) represents
tal, emotional, and/or intellectual
prisoners was brief-on the tier,
the death row clients in Bates v. Lynn, a legal
disabilities-bipolar mood disorders,
through the cell bars, and within
access case. He is pictured here with Narris
paranoid schizophrenia, schizoearshot of staff and other prisonHenderson (I.), a law clerk at the Louisiana State
affective disorder, atypical psychoers. The condemned men had no
Prison's main law library, and James Wilber (r.),
an expert on legal access.
ses, organic brain syndrome, fetal altables or desks on which to write,
cohol syndrome or fetal alcohol efno chairs on which to sit, and no
fects, mental retardation or a combination
must attempt to do damage control on
control over the light in the cell.
of the above. These conditions demand
the work of the well-intentioned but
When viewed as a whole, these condithat the attorney-client relationship be al- inexperienced attorney.
tions placed Louisiana far behind the
starting block of other jurisdictions
lowed to develop without interference
In the spring of 1989, the Louisiana
from the State. Anoncontact visit, by its
Department of Corrections (LDOC) placed which were attempting to meet their afnature, impedes the development of intifirmative obligation of providing meanadditional restrictions on a deathsentenced person's ability to contact an
macy and trust between the attorney and
ingful access to the courts as first enunciclient and the ability of the attorney to
attorney. LDOC refused to allow indigent ated in the landmark Supreme Court case,
evaluate the client's probable perforprisoners to mail letters to out-of-state
Bounds v. Smith, 430 U.S. 817, 824, (1977).
mance on the stand. Inevitably the attorattorneys unless the attorney had
Of the 37 states which condemn prisonney in some cases will be unable to pursue
written the prisoner first and had
ers to death, 11 have policies which deny
claims or a trial strategy that would othindicated that he represented him-an
death row prisoners contact visits with
erwise inure to the client's benefit.2
obvious Catch-22. This policy foreclosed
their attorneys: Arkansas, Idaho, MissisDeath-sentenced prisoners who had
or severely frustrated any attempt by the Sippi, Montana, North Carolina, Oregon,
noncontact attorney visits were the
prisoner to solicit assistance from death
Pennsylvania, Texas, Washington, and
relatively lucky ones-some LSP death
penalty or prisoner rights experts from
Arizona. However, of those, Washington
row prisoners had no legal visits at all.
around the country. Further, the State of and North Carolina routinely grant conThe State of Louisiana did not prOVide
Louisiana did not provide deathtact legal visits when requested by the
death row prisoners access to attorney
sentenced prisoners access to attorney
attorney of record. In addition, Arizona,
assistance for post-conviction relief. The
assistance on challenges to their condiIdaho, Oregon, Pennsylvania and Wash,~~.

16 SPRING 1991

THE NATIONAL PRISON PROJEG JOURNAL

iIigton automatically provide counsel for
indigent death row prisoners to help
them initiate state collateral proceedings;
and Arkansas and Montana provide
death-sentenced prisoners attorney-supervised assistance through prisoner
paralegals or law students. Louisiana
plaintiffs and their attorneys were not
only confronting bad conditions, they
were also confronting a bad attitude.
The extreme hostility towards a
prisoner's right to challenge the legality
of his or her incarceration or the
conditions under which he is held as
expressed through the Louisiana "legal
access plan" had been carefully nurtured
by the institution of slavery, slavery's
impact on the law, and the peculiar
legacy of the Louisiana prison system. As
late as 1968, "the terms 'convict,' 'slave,'
'negro,' and farm worker have remained
interchangeable in the mind of institutional Louisiana."4
Today Angola is run for profit as a
penal farm, the offspring of the convictlease system, where 80% of the general
prison population and 40% of death row
is black. However, blacks comprise only
30% of the state population. It is against
this historical backdrop that the original
named plaintiffs sought to bring some
humanity to Louisiana. The original
plaintiffs,M. Wayne Bates (life sentenced-1991);John Sullivan; Dalton
Prejean (executed-1990);Jimmy Glass
(executed-1988), and Ernest Busby (life
sentenced-1990) filed a lengthy pro se
complaint embracing every death row
condition including the kitchen sink.
NPP legal staff and local ACLU attorney
William P. Quigley convinced them that
access to courts and the right to counsel
claims were the strongest and the ones
which would most likely prevail. While
confident of winning some relief in the
Fifth Circuit Court of Appeals in spite of
the conservl!tive trend in the federal
judiciary, we knew that that could take
years resulting in more avoidable
suffering and deaths.
In order to settle this case, we had to
convince the defendants that plaintiffs
had a very good chance of prevailing on
the merits and that the state could
accommodate the plaintiffs at minor
expense, with no disruptions in the
management of death row. At the outset
this task proved nearly impossible.
During a pre-settlement status conference, the defendants were inflexible. We
responded by submitting a comprehensive unrequested memorandum on the
law of legal access. Settlement discussions began, then quickly collapsed.
THE NATIONAL PRISON PROJECT JOURNAL

Surprisingly, in the interim, the wac,
assisted by the Baton Rouge Bar Association, conducted two very well-publicized
but inadequate "training sessions" for
inmate counsel. The handwriting was on
the wall. The defendants' strategy was !O
moot the action or to frustrate us into 1;
dropping this suit. However, plaintiffs':,,'';
kept the pressure on.
After nearly an eight-month delay".
plaintiffs prevailed on the court to put
this case on track towards trial. Oril~ a
few days before we were scheduled to
depose defendants' experts, defendants
indicated they were prepared to resume
settlement negotiations. They demonstrated good faith by granting plaintiffs
contact legal visits during the discussion
phase. Plaintiffs successfully negotiated
a very comprehensive settlement
agreement. The highlights include
contact legal visits; private contact visits
between prisoners and prisoner legal
aSSistants; a constitutionally sufficient
law library inventory; a comprehensive
legal training program with attorney
instructors for prisoner legal assistants;
supervision of prisoner legal assistants by
the Loyola Law School Clinical Program;

two additional prisoner assistants for
death row; and the removal of restrictions on a prisoner's ability to contact an
out-of-state attorney.
If the court adopts the agreement, life
will no longer be the same on LSP's death
row. Let's just hope and pray that life on
death row prevails. •

Stuart Adams is a staffattorney with
the National Prison Project.
I Angola: Legac}ofLouisiana Slavery, Unpublished essay, wri(~~n by Kwablah Mthawabu, a
prisoner serving' a life sentence at Louisiana State
Prison, Angola,
2 Non-Contact Legal Visits on Death Row in
Louisiana: Efforts on the Representation ofDeath
Sentenced Prisoners, a preliminary report by Richard
H, Burr, 1990,
3 The Louisiana Death Penalty Resource Center is a
federally-funded program providing technical
assistance to attorneys who represent deathsentenced prisoners on post-conviction matters,
•Politics and Punishment.· The History of the
Louisiana State Penal System, by Mark T. Carlton, p.7.

SPRING 1991

17

te
States Move
to Mainstream
DIV-Positive
Prisoners
n the early days of the epidemic,
prisoners who were believed to be
carriers of the "AIDS" virus were
treated like lepers-locked-up, abused,
shunned and feared. Today, while many
states have mainstreamed or re-integrated HIV-positive prisoners into
general population, a few such as
Alabama, California, and Mississippi cling
to antiquated segregation policies.
For example, in 1985, the first prisoner
who tested positive in Alabama was
placed in isolation, told he had AIDS and
that he was going to die. Once, upon
being moved to another institution, he
was forced to wear a full body suit, mask
and gloves. Prisoners who were suspected
of prior high-risk activity such as
"homosexual" sex and intravenous drug
use fell victim to mandatory testing
policies. Those who tested positive for
HIV (erroneously called AIDS) were
isolated from the general population,
locked down 23 hours a day, denied
access to recreation, the law library,
religious services, parole, furloughs,
employment and vocational school.
That's how misitnderstood the HIV virus
was in the years 1984-1987.

I

AIDS Spread in Prison Lower
Than Expected
State corrections officials have since
conducted random serological testing of
their populations, and have found the
numbers of HIV-positive prisoners to be
much lower than expected. Yearly
studies by the National Institute of
Justice show that the spread of AIDS in
prison runs parallel to the outside
community. The cost of segregating a
very small population has proved
prohibitive for most state systems. Up-todate information from the Centers for
18 SPRING 1991

Disease Control and the U.S. Public Health
Service points out that HIV is not
casually transmitted. Protests by prisoners and prisoner advocates against
inhumane and intolerable prison
ii
conditions for those with HIV have
"
helped focus attention on this problem.
As added impetus, many states have
chosen to end the segregation of HIVpositive prisoners rather than face costly
class action lawsuits.
The National Commission on Correctional Health Care, the American
Correctional Association and the
American Bar Association oppose the
segregation of HIV-positive prisoners,
now recognized as leading to stigmatization and discrimination. To the HIVpositive prisoner, it sends a message of
gloom and doom. For the prisoner in
general population, a policy of segregation sends the false message that he or
she is "safe" and doesn't have to worry
about AIDS.
Changes in State and Federal Care
of HIV-Positive Prisoners
In 1987-88 the National Prison Project
studied the care and management of
prisoners with HIV and AIDS within state
and federal systems. The study reported
almost half of the states segregated
prisoners with full-blown AIDS and
approximately 10 states still segregated all
prisoners with HIV infection. Since that
time, most states have moved progressively toward mainstreaming prisoners
with HIV into the general population.
The most dramatic change in the care
and treatment of HIV-positive prisoners
came about in Connecticut, largely as a
result of two class action lawsuits. This
year's settlement in Doe v. Meacham and
last year's agreement in Smith v.
Meacham have placed Connecticut in the
forefront of medical care and treatment
of HIV disease. Smith prOVides for strict
confidentiality in medical care; medical
staff must promptly and privately
inform HIV-positive prisoners of the
results of medical tests. Most importantly,
it provides for a board of outside
prisoner advocates to monitor
Connecticut's compliance with the
settlement. Last year, a settlement was
reached which dismantled that state's
segregation of prisoners with AIDS and

created critical care units for prisoners
with HIV disease. Connecticut is well on
its way to becoming a model for other
states in the care and treatment of
prisoners with HIV.
Recently, Massll{husetts and Maryland
have discontinueq their policies of
isolating prison'~ with AIDS. An attempt
by New York Stitte authorities (who
supposedly desegregated the New York
State prison system in 1987) to establish
an AIDS unit for New York State prisoners was roundly defeated in the courts
last year. South Dakota and Arizona also
dropped segregation policies in 1989.
The small handful of states which
segregated prisoners testing HIV-positive
have begun to dismantle those policies.
Over the past two years, Tennessee,
Wyoming and Georgia have returned
HIV-positive prisoners to general
population.
As a result of a recent lawsuit, the
California Department of Corrections is
piloting a program to integrate HIVpositive prisoners into general programming at four prisons. The men and
women involved in this pilot program
represent only a small percentage of the
HIV-positive population and are still
housed separately. The lawsuit did
succeed in upgrading the standard of
medical care at the Vacaville medical
unit for all prisoners there.
Most Colorado state prisoners with HIV
disease have been integrated into general
prison programs although they are still
separately housed.
The future holds great promise for the
management and care of prisoners with
HIV and AIDS. New medical developments and the discovery of new treatment drugs have revealed HIV to be a
chronic but manageable disease. The
challenge for corrections will be to
upgrade medical services to adequately
care for HIV-positive prisoners.
We hope that this next year will see
the end of punitive measures against
prisoners with HIV and AIDS and
provision of the life-giving medical care
and treatment that all prisoners need. ..

Judy Greenspan is the AIDS information coordinatorfor the National Prison
Projec~ and contributes a regular
column to the NPPJOURNAL.
THE NATIONAL PRISON PROJEG JOURNAL

blications
)j~

,Jr.

The National Prison',"",
Project Status Report li~ts

1990 AIDS in Prison
Bibliography lists resources

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

on AIDS in prison that are
available from the National
Prison Project and other
slWrces, including corrections
,p"glicies on AIDS, educational
Jiiaterials, medical and legal
'articles, and recent AIDS
studies. $5 prepaid from NPP.

AIDS in Prisons: The
Facts for Inmates and
Officers is a simply written
educational tool for prisoners,
corrections staff, and AIDS
service providers. The booklet
answers in an easy-to-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.

Bibliography of Women
in Prison Issues. Abibliography 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.

The National Prison
Project JOURNAL, $25/yr.
$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 ex-offender aid. 9th
Edition, published September
1990. Paperback, $30 prepaid
from NPP.

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

Prisoners'Rights
Sourcebook (1980). Traces
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
QTY. COST from NPP.

APrimer for Jail Litigators is a detailed manual with
practical suggestions for jail
litigation. It includes chapters
on legal analysis, the use of
expert witnesses, class actions,
attorneys' fees, enforcement,
discovery, defenses' proof,
remedies, and many practical
suggestions. Relevant case
citations and correctional
standards. 1st Edition, February
1984.180 pages, paperback.
(Note: This is not a "jailhouse
lawyers" manuaL) $15 prepaid
QTY. COST from NPP.

Fill out and send with check payable to:

Name

The National Prison Project

Address

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

City, State, Zip

THE NATIONAL PRISON PROJECT JOURNAL

(order
from
ACLU)

ACLU Handbook, The
Rights of Prisoners. Guide

to the legal rights of prisoners,
parolees, pre-trial detainees,
etc., in question-and-answer
form. Contains citations. $7.95
(free to prisoners) from ACLU,
132 West 43rd St., New York, NY
QTY. COST 10036.

_
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SPRING 1991

19

he following are major developments in the Prison Project's
litigation program since January 15,
1991. Further details of any of the listed
cases may be obtained by writing the
Project.

T

Austin v. Lehman-The district court
granted plaintiffs in forma pauperisstatus in this case which challenges overcrowding and conditions in 12 Pennsylvania prisons. We have filed initial discovery requests and interrogatories.
Bates v. Lynn-This case seeks to ensure
adequate legal access for death row prisoners in Louisiana. The parties negotiated a
settlement which prOVides death row prisoners with contact legal visits, regular legal training, attorney supervision for law
library legal assistants, and increased indigent mail privileges.
Dickerson v. Castle-This case challenges conditions and overcrowding in
Delaware's adult facilities. In December,
defendants submitted a population reduction plan. We objected to the plan because
it was overly vague and lacked an automatic population reduction mechanism
should defendants fail to reduce the population by their July 1991 deadline. We filed
a proposed order requiring such a mechanism; however, the judge postponed a decision until defendants could complete a

National Prison Project
American Civill'1berties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, D.C. 20009
(202) 234-4830

20

SPRING 1991

population projection report. Parties will
then meet for a status conference.
Hamilton v. Morial-This case challenges conditions at the Orleans Parish
Prison, the municipal jail for the City of
New Orleans. Trial on the psychiatric care
issues has been scheduled for the week of
May 1, 1991. Discovery is underway.
Harris v. Thigpen-This case challenges
the AIDS testing and segregation policies of
the Alabama Department of Corrections.
Oral argument before the Eleventh Circuit
was held April 9, 1991. We argued our appeal of the district court decision denying
relief to plaintiffs on all claims, including
medical and mental health care claims, and
the court's dismissal of the case.
PaImigiano v. DiPrete-This case challenges conditions in the Rhode Island
prison system. The department recently
opened two new facilities which have
eased overcrowding, and, for now, the
State is in compliance with the court-ordered population caps.
On January 10, parties and the judge met
with newly-elected Governor Bruce
Sundlun to discuss the case. Also, in January Judge Raymond J. Pettine recused himself from the case (see article by Judge
Pettine on p5 in this issue).
Spear v. Waihee-This case challenges
conditions in Hawaii's state prison. On a
January tour, we found the women's facil-

ity to be grossly out of compliance with
the 1985 consent decree. Defendants' plans
to build a new facility had stalled due to a
controversy concerning the site. Defendants have since developed a plan to renovate the juvenile !\cility for the women
inmates, and we qAve decided against filing for contempt:in the immediate future.
U.S. v. Michigan/Knop v.JohnsonThis is a statewide Michigan prison conditions case. In February, Knopplaintiffs requested emergency relief from the court to
prevent massive prison staff lay-offs
which would violate the consent decree.
Following negotiations, the court permanently enjoined the lay-offs. On March 13,
the court upheld a mental health contempt
order imposing $1O,OOO/day fines on defendants for March 15-29; however, $5,OOO/day
of that amount will not be collected until
late May.
Witke v. Vernon-This case challenges
conditions and inequitable programming in
the Idaho women's prison. During settlement discussions, defendants refused to
agree to provide due process rights for assignment to restrictive housing and agree
to requirements regarding life safety repairs. Trial on these issues has been scheduled for October 1991. Also, the State has
decided to locate the new women's prison
in Pocatello despite our efforts to persuade
them to select Boise as the site.

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