A PROJEG OF THE AMERICAN CIVIL L1BE1HiES UNION FOUNDATION, INC.
VOL. 6, NO.3, SUMMER 1991 • ISSN O?~8-2655

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, .~}

Supreme Court Agrees to Hear Brutality Citse
n April 15, 1991, the u.s. Supreme
Court granted a pro sepetition for
writ of certiorari filed by Keith J.
Hudson, a Louisiana state prisoner. On
April 29, 1991, the Court appointed Alvin
J. Bronstein, executive director of the
American Civil Liberties Union's National
Prison Project, to serve as counsel for
Hudson.

O

Summary of the Lower Court Opinions
Hudson, a prisoner at the Louisiana State
Penitentiary in Angola, Louisiana filed a
pro se complaint in the U.S. District Court,
Middle District of Louisiana, against
corrections officers Jack McMillian,
Marvin Woods and Authur Mezo. Hudson
alleged that while in restraints, he was
beaten about the face and body by
officers McMillian and Woods. Hudson
further alleged that officer Mezo, a
lieutenant, stood by while the other two
officers engaged in the beating.
On March 10, 1987, trial was held
before a U.S. Magistrate who found that
on October 30, 1983, Hudson was involved
in an argu~nt with officer McMillian
and later beaten while in restraints.
Specifically, the magistrate found that
while Hudson was being transported in
handcuffs and shackles, McMillian
punched Hudson in the mouth, eyes,
chest, and stomach while officer Woods
held Hudson. Also, officer Woods kicked
Hudson on his backside. Although
Lieutenant Mezo did not strike Hudson,
Mezo was present and in a position to
stop Woods and McMillian, but instead
observed the beating and merely
cautioned the officers "not to have too
much fun." The blows cracked Hudson's
partial dental plate, loosened his teeth
and split his lower lip. He was seen by a
medical specialist two days later. The

magistrate held that there was no need
to use any force upon Hudson since he
was already in restraints, and that
Hudson's injuries resulted from the
unnecessary use of force which was
motivated by malice. The magistrate
concluded that Hudson's rights under the
Eighth Amendment to the Constitution
were violated and awarded him $800 as
compensatory damages.
The defendants' appealed the
magistrate's decision to the United States
Court of Appeals for the Fifth Circuit.
The appeals court adopted the findings
of fact by the magistrate and noted:
This courtjoins the magistrate in
deploring the use offorce in the treatment ofprisoners. Hopefully someday
this blight on our criminaljustice system
will beforever removed.
The court went on to hold that "in
light of the standards established by this
court's intervening decision in Huguet v.
Barnet~ 900 F.2d 838 (5th Cir.1990), and
progeny, however, we must reverse." The
court reaffirmed its holding in Huguet
that the standard to be applied in
excessive force claims made by prisoners
under the Eighth Amendment, consists of
a four element test, each of which must
be proven. The four elements are as
follows, according to the court:
1. a significant injury, which
2. resulted directly and onlyfrom the
use offorce that was clearly excessive to
the need, the excessiveness of which was
3. objectively unreasonable, and
4. the action constituted an unnecessary and wanton infliction ofpain.
The court of appeals stated that if any
one of these elements fails, so too does
the prisoner's claim. The court held that
Hudson had proved three of the four
elements, Le., no force was required,
therefore, the force used was objectively
unreasonable; the conduct of McMillian
and Woods qualified as clearly excessive;

and occasioned unnecessary and wanton
infliction of pain. The court held
however, that Hudson's claim "founders
on the significant injury prong." The
court relied on the magistrate's characterization of Hudson's injuries as "minor"
and "required no medical attention" to
hold that the injuries did not constitute a
significant injury and therefore were
"insufficient" to base a federal civil
rights claim. Accordingly, the court
reversed the magistrate's judgment in
favor of Hudson.
It will be argued that, if this decision is
allowed to stand as the law, correctional
officers will be free to torture prisoners
without concern for the Constitution,
provided that they do not inflict a
"significant injury." For example, a
prisoner could be hung by his or her
thumbs for two weeks, naked in the
prison yard, and there would be no
violation of the cruel and unusual
punishment clause because there was no
significant injury-just pain, humiliation
and suffering.
Various law enforcement and international human rights organizations have
filed "friend of the court" briefs in this
important case.•

Alvin] Bronstein is the Executive
Director of the National Prison Project.

~+

..

Seven Alternative Punishment
Programs That Work
risons and jails are becoming more
costly to build and run, and more
difficult to manage. In the meantime, relief and money are nowhere in
sight. Public officials are realizing that
the policy debate on criminal justice in
this country has been short-sighted and
irresponsible. With over one million
Americans behind bars, the United States
now has the highest incarceration rate in
the world-426 per 100,000-carrying
with it a $16 billion price tag.! According
to the United States Department of
Justice, the recidivism rate stands at 62%
for state prisoners. Because of serious
overcrowding, 41 states are now under
court order to reduce crowding and
improve conditions.2
The primary reason for these grim
statistics is not the high rate of crime but
the "get-tough" policies enacted by
legislators who believe that mandatory
minimum sentences, longer sentences,
and the death of judicial discretion will
somehow reduce crime. Anational policy
has emerged, without serious analysis of
the reality and complexity of the causes
of crime, debated within a panicked
atmosphere of drug war hysteria, with
no regard for the costs to the taxpayer, or
the effect of prison overcrowding on the
offender and the criminal justice system.3
More people in this country are being
sent to prison for less serious crimes for
longer periods of time without any
discernible effect on the crime rate.
Under the draconian mandatory minimum laws, for example, first-time
offenders are getting excessive, mandatory five- and t~-year sentences.4
Because prisons are capacity-driven,
we cannot build our way out of the
overcrowding crisis. The prison experience is likely to alienate the offender
further, rendering him or her less
capable of reintegration into society.
Prisons should be reserved for the truly
dangerous, while we reemphasize
rehabilitation to combat the high
recidivism rate.
The overcrowding statistics and high
recidivism rates have led some states to
consider eliminating proposals for stiffer
sentences and reconsider alternative
sentencing options and programs. Last
year, for example, Illinois legislators

P

2 SUMMER 1991

voted to double the amount of good time '1'
credit a prisoner could earn in order to .. '
reduce his or her sentence. They also /;.
have announced they will defeat bills}:~
designed to toughen penalties.5
.• g
The tough-on-crime era and the
inevitable corrections crisis that followed have caused legislators to look
more closely at alternative punishments.
Restitution, community service, intensive
probation, and programs such as work
release centers and drug and alcohol
treatment centers are all options that
have been successfully used and under
terms that protect the public and punish
the offender.
The National Prison Project often gets
requests from federal, state and local
legislators and staff for advice on
specific programs out there and working.
The following represent a few examples
of the creative projects that are working
throughout the country:
Community Services
for Women Program
Community Services is an alternative
sentencing project of the Social Justice
for Women program in Massachusetts.
Community Services designs and
advocates alternative sentences specifically for women who appear to be
candidates for prison. Annually they
provide services to about 100 clients.
Since most of their clients have
substance abuse problems, Community
Services enrolls them in a residential or
outpatient drug treatment program. In
addition to the treatment, there is at least
one face-to-face visit per week, individual
and group counselling, and job training
and/or GED classes. Since many of the
clients are parents, there are additional
counselling and assistance programs to
help the parents deal specifically with
matters involving their children.
Community Services guarantees the
court that they will monitor the client
throughout the program. They also are
responsible for making sure that the
offender attends court hearing dates. A
study will be available soon which
shows the program to have an 8%
recidivism rate, as compared to a 25%
recidivism rate for women reported by
the Massachusetts Department of

Corrections. Contact: Marianne Galvin,
Ph.D., Social Justice for Women, 108
Lincoln St., Boston, Massachusetts, 02111,
617/482-0747.
Treatment Alternatives
to Street Crime
The TASC program, initiated by the
federal government over 15 years ago,
examines the problems of drug abuse and
criminal behavior. TASC tries to bridge
the gap between the criminal justice
system and comf\lunity treatment
providers. Und,~fJfASC supervision,
community-ba~d treatment is made
available to drug dependent individuals
who would otherwise be incarcerated.
TASC assesses and refers appropriate
drug dependent offenders accused or
convicted of nonviolent crimes to a
community based substance abuse
treatment center as an alternative (or
supplement) to incarceration. The local
community determines the program's
eligibility and success-failure criteria.
TASC monitors the offender's treatment,
employment and personal well-being.
Public safety is ensured through careful
supervision.

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 Proiect is a tax-exempt foundationfunded project of the AClU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judicial channels; and to develap oltematives ta
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.

TheNPPJOURNALis available on16mm

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

Because TASC is a certified program,
funding for new TASC sites may be
available through Bureau of Justice
Assistance formula grants to states under
the Anti-Drug Abuse Act of 1986 and
1988. Contact Barbara Zugor, National
Consortium of TASC Programs at 2234
North Seventh Street, Phoenix, Arizona,
85006,602/254-7328. For information on
funding and technical assistance, contact
Ken Robertson at the National Association of State Alcohol and Drug Abuse
Directors, 444 N. Capitol Street, NW,
Washington D.C. 20001 at 202/783-6868.
Community Service Sentencing Project
In 1979, when overcrowding in New
York City jails reached a crisis, the Vera
Institute of Justice devised a community
service sentencing program that was
punitive enough so that judges and
prosecutors would consider it a realistic
and credible alternative to a jail sentence
for repeat property crime offenders.
Community Service Sentencing
representatives review court case folders
of repeat, non-violent offenders to
determine who is eligible for a community service sentence. With the consent
of the defendant and defense counsel,
the representative presents the alternative sentencing plan to the court. If the
judge agrees, the defendant is sentenced
to a conditional discharge and is put
under CSS supervision.
Most participants are minority
offenders who are unemployed and have
substance abuse problems. CSS arranges
for housing and drug treatment, and also
helps with family care matters. Participants who complete the sentence receive
additional help in job placement.
CSS has four offices which operate in
the Bronx, Brooklyn, Manhattan, and
Queens. For more information contact:
Judith Greene, Vera Institute of Justice,
377 Broad,\ay, 11th Floor, NY, NY, 10013,
212/334-1300 ext. 251.
THE PROGRAM for Female Offenders
THE PROGRAM for Female Offenders
opened its doors in 1985 in response to
overcrowded conditions in the women's
section of the Allegheny County Jail in
Pittsburgh, Pennsylvania. The Center is a
40-bed work release program that offers
job training, employment, education
classes and parenting classes. Day care
service is provided while the women go
to work. The women pay 20% of their
earned income towards rent, 10% towards
restitution, and 20% towards a mandatory savings plan. The sentences range in
length from 6-8 months to five years. In
THE NATIONAL PRISON PROJEO JOURNAL

1988, Renewal, Inc., an agency serving
male offenders, became affiliated with
THE PROGRAM and now operates two
male work release centers. Contact
Charlotte Arnold, executive director of
THE PROGRAM for Female Offenders, at
Penn/Liberty Plaza, 1520 Penn Avenueir
Pittsburgh, PA 15222, 412/281-7380. ·:A
North Carolina Community
.
Penalties Program
The Community Penalties progriths6
operate on the Client Specific PlannIng
(CSP) model designed by the National
Center on Institutions and Alternatives.
The idea of CSP is that an offender's
personal circumstances must be considered in the designing of a sentencing
alternative program. The Community
Penalties programs, in utilizing the CSP

model, recognize the importance of
combining the rehabilitative needs of the
offender with the court's interest in
incorporating sanctions, such as restitution and community service.
Acase developer prepares a comprehensive package for an offender. The
sentencing plan is then presented to the
judge outlining the proposed conditions
that can involve restitution, community
service and other sanctions. An important feature of the program is its
commitment to divert the prison-bound
offender by working closely with
defense attorneys and utilizing community resources.
There are 16 private, non-profit
organizations that provide Community
Penalties services to 20 judicial districts.
The programs are funded and administered by the North Carolina Department
of Crime Control and Public Safety.
Contact Melvena Sams, Grants Administrator, 512 N. Salisbury St., Raleigh, N.C.,
27611,919/733-7974, or Alexis Ferrell,
President, North Carolina Alternative
Sentencing Association at 919/275-5285.
NeilJ. Houston House
Very often a pregnant offender is
placed in a stressful environment, an
overcrowded cell, without a proper

prenatal diet. The Houston House is a
program of Socia1]ustice for Women in
Massachusetts for pregnant women who
are incarcerated.
The program provides a structured
environment to assist women in their
recovery from substance abuse, provide
comprehensive perinatal medical care,
family counseling and community reintegration services for mothers and
their babies.
For information on the Houston House,
contact Mari~nne Galvin, Ph.D., at Social
Justice for ,W,~men, 108 Lincoln St., 6th
Floor, Bostqrl, MA 02111, 617/482-0747.
Metropolitan Day Reporting Center
The Metropolitan Day Reporting Center
was developed by the Crime and Justice
Foundation in Boston to provide an
option that would keep offenders in the
community who would otherwise be
incarcerated.
An offender who is placed in the
Center lives at home while under the
supervision of a correctional administrator. The client reports to the program
daily and prepares an itinerary with a
case manager. The itinerary outlines
where and when the client will be for
the following day.
In addition, the client must call the
Center at least twice a day, either work
or go to school, and participate in a
treatment program. There are random
drug and alcohol tests at least twice a
week as well as a curfew and a community service assignment. Contact Liz
Curtin, 95 Berkeley St., Boston, MA 02116,
617/ 426-9800.
These programs are only a few
examples of the many creative projects
that are out in the states and working.
Other examples of alternative sentencing
programs are available from a variety of
sources?
Support for alternative programs
appears to be growing. More studies and
surveys reveal that the public is more
likely to support alternative sanctions
when they are properly informed on the
negative implications of overcrowding
on the offender and on society.s
For example, by using in-depth focus
groups around the country, the Public
Agenda Foundation, in a report published
by the Edna McConnell Clark Foundation,
found that Americans are more inclined
to support alternatives when they realize
that rehabilitation is less likely to
happen in an overcrowded system.9
Support also increases when the public
learns more about the enormous costs of
incarceration. Areport on the comparaSUMMER 1991 3

tive costs of corrections in Delaware
cited a 1988 Harris poll which found that
81% of the public preferred spending
money to correct the causes of crime,
while 10% preferred spending more
money on prisons.IO The report also
suggested that the money required to
house a prisoner convicted of an average
burglary offense in Delaware could fund
seven children in a Head Start Program,
or four juveniles in an employment and
training program, or six families in a
Parent Outreach support program.11
These surveys also show that both
public and political leaders seem
receptive to alternatives in certain cases.
Unfortunately, though, legislators often
oppose alternative programs because
they inaccurately perceive public
opinion to be more punitive than it
really is.

At a time when inmate populations are
soaring and budgets are tightening,
alternative punishments must be
recognized as effective and available.
Furthermore, they have public support.
Imprisonment is outmoded as a knee-jerk
method of punishment and should be:1'
used as a scarce resource when all other::
options have failed. •

"0

,,,,-"

Maria Martino is a staffassociate with
the National Prison Project.
I;'.
.:~

IThe Sentencing Project, "Americans Behind Bars: A
Comparison of International Rates of Incarceration"
(Washington, D,C.: 1991).
'The National Prison Project of the ACLU, "Status
Report:The Courts and the Prisons," (Washington,
D.C.: 1990).
3Michael Isikoff and T. Thompson, "Getting Too Tough
on Drugs," Washington Post (November 4,1990).
4Stuart Taylor, Jr.,"Ten Years for Two Ounces:
Congress is Packing Prisons With Bit Players in Small-

u.s. Policies Create Prison
Human Rights Violations
This article originated as a paper
preparedforpresentation at the International Symposium on the Future Of
Corrections, heldJune 14, 1991, in Ottawa,
Canada.
nder a law enacted in July 1988,
certain living beings were guaranteed new rights. They could no
longer be shackled, they had to be
released from their cramped cages, and
they could be administered no drugs
except for the treatment of disease. This
was not, unfortunately, a law enacted by
the United States Congress or any state
legislature for .the protection of prisoners. It was an act of the Swedish parliament to protect the rights of farm
animals.l
My invitation letter to this symposium
describes the session on Offender Rights
as faIling under "that portion of the
symposium which deals with the
development of responsive strategies in
keeping with the purpose of Corrections,
and its core values and principles."2 As a
matter of fact, the American Correctional
Association, together with the Association of State Correctional Administrators,
is developing a responsive strategy to
cope with prison overcrowding and the
attendant political and financial

U

4 SUMMER 1991

pressures. That strategy is to abandon
principle and compromise professional
judgment. The corrections leadership in
the United States is, at this moment,
attempting to water down professional
standards by abandoning or diluting
prohibitions against double-ceIling and
multiple-occupancy housing for anyone
other than minimum custody prisoners.3
The United States and Hnman Rights

We in the United States have always
considered ourselves the standard

Time Drug Deals," American Lawyer (March 1990).
5Sharon LaFraniere,"Influx of Inmates Floods
California, Other States," Washington Post (April 27,
1991).
6Mark Mauer, "The North Carolina Community
Penalties Act: ASerious Approach to Diverting
Offenders from Prison," FederalProbation(March
1988).
7A Survey 0/ Intermediate Sanctions, Office of
Justice Programs, U.S. Department of Justice
(September 1990).
BRuss Immarigeon, "Surveys Reveal Broad Support
for Alternative Sentencing,"NPPJOURNAL, No.9, Fall
1986.
9John Doble, Crime and Punishment: The Public's
View.A Qualitatitj Analysis 0/ Public Opinion, The
Edna McConnell C!3rk Foundation (1987).
!OKay Pranis, Opiions in Criminal Corrections: A
Study 0/ Costs and Opportunities in Delaware,
Minnesota Citizens Council on Crime and Justice
(1989). This report also has an excellent listing of
representative crime prevention programs operating
around the country, as well as an appendix listing
model alternative program information sources.
llIbid, p. 18.

States' citizens celebrate the changes in
Eastern Europe, the struggles of the
Chinese students, the slow but steady
crumbling of apartheid in South Africa,
and the efforts of any country moving
toward a more democratic way of life.
We feel a bit smug that they are becoming "more like us." Yet, at a time when
the rest of the world is becoming more
liberal and more concerned about human
rights, the United States is becoming
more repressive.
I believe that we have lost the capacity
for collective moral discourse. We lack
moral vision. We ignore the hunger,
disease and misery of a majority of the
world's population. We debase our
politics, suppress dissent, indulge in
panic-driven, ineffective but costly
policies to deal with drugs while
reducing commitments to health care,
housing subsidies, child care and decent
schools, labeling them "liberal elitism."
The Development of Public Policy

bearers for human rights. Our country
was founded on a belief in individual
freedoms. The last war fought on U.S. soil
was not over territory or trade routes but
the most fundamental human right, the
right to be free, not a slave. We are so
certain of our superiority in the human
rights arena that we hold ourselves up as
an example to the world and regularly
condemn foreign governments which
tread on their citizens' rights. United

Public policy in this country is no
longer formulated in the gutters; it is
developed in the filthiest and slimiest of
sewers. During George Bush's 1988
presidential campaign, every corrections
official in the country should have stood
up and said loudly, clearly and publicly:
"No, sir, you are wrong to use the Willie
Horton furlough issue as you are doing. It
is dangerous and irresponsible to use an
anecdotal approach in examining the
serious crime problems in our society.
You are preaching racism by your
repeated use of that picture."
No one did that. The only lesson
THE NATIONAL PRISON PROJECT JOURNAL

learned from that cammore prisoners while we
paign was an ugly one of
are incapable of building
success at any cost.
enough cages to house
Political campaigns at
them. Prison and jail
every level-local, state
overcrowding will soon
and national-run by
be exacerbated by the
either party, spend much
following factors that
of their time trying to outhave surfaced recently:
"Willie Horton" the other
an aging prison populaside. Today, you win
tion and the prospect of
elections by calling for
_ large numbers of geriatric
greater use of imprisonce prisoners with serious
ment and the death
medical needs; the
penalty, by calling for
, ~;] prevalence of AIDS,
more repression of
!.
hepatitis and tuberculosis
individual rights and by
in our prison population;
encouraging more fear and
an increase in the number
hostility than the opposi.g of mentally ill and
tion does.
1 physically disabled
Politicians have behaved
.2 prisoners; the growing
------'.3 inability of corrections
outrageously with respect L - ' - to the very serious drug
Imprisonment in the United States often includes brutal conditions
systems to provide
and massive overcrowding.
problem in this country:
minimally adequate
by pandering to public
medical and mental
health care; and the diminishing
anxiety; by denying police adequate
years ago.
resources to prevent criminal activity; by
The United States is locking up its
resources available to corrections
pursuing policies that tolerate and make
future. Arecent study at the Brookings
systems.
profitable the flow of drugs into this
Institution found that if we continue at
country; and by adopting policies and
our current rate of prison population
Repeating Past Failures
laws that send more people into custody,
increase, more than half of America will
Re-inventing the wheel, we ignore the
for longer periods of time and without
be in prison by 2053, just 60 years from
past failures of "control units" and
adequate resources to cope with the
now.6
"super-max" prisons and are now
growing body count in already seriously
building a new generation of high-tech
overcrowded prisons.
Prison Conditions and Human Rights
dungeons throughout the United States.
In Oklahoma, a new 200-cell facility is
Violations
The Result of Policy Development
Forty-one states are operating their
effectively built underground. Prisoners
Let us look at the result of these
prisons under court orders because they
who will spend 23 hours a day in their
policies. The United States now has the
house prisoners in overcrowded and
cells may never again set foot out of
highest recorded rate of imprisonment of unconstitutional conditions.7 Hundreds
doors. The deputy warden is proud that
the new prison will "limit the convicts'
any nation in the world-over one
of local jails are under similar orders. We
million men and women in prison and
are the only country in the world that
contact with one another and with
our incarceration rate is 426 per 100,000
uses incarceration as its primary crime
corrections officers."9 Last year, Califorof population. That is higher than the
control mechanism. And yet, all this
nia opened the new 3,000-bed Pelican
Soviet Union or South Africa and more
Bay State Prison, which contains a
imprisonment has no positive impact on
than four times the rate of almost every
crime rates. Violent crime gets worse.
security housing unit of 1,056 windowEuropean country. Our incarceration rate
Conditions in some prisons are so
less cells of concrete and stainless steel.
for Black males is four times that of
shocking that people are more dangerous
Prisoners have virtually no face-to-face
South Africa.4
when they come out. With the exception
contact with officers or other inmates. In
In California, one in every three Black
of the barbaric death penalty, imprisondiscussing Pelican Bay, Craig Haney, a
males between the ages of 20 and 29 is
ment is the largest power that a demopenologist and psychology professor at
the University of California, Santa Cruz,
either in prison or on probation or
cratic government exercises on a regular
parole. For white males, the comparable
basis over its citizens. Prisons are total
said: "This kind of isolation goes back to
figure is one in 19.5 None of this correthe mid-19th Century when American
institutions that have a massive impact
lates to crime rates.
on the persons they confine. They
prisoners weren't allowed to have any
interaction at all. But that was eventuWe are spending over $16 billion a year
control every moment of the prisoner's
ally done away with because it was
just to operate prisons, which net a
day and night and eliminate almost any
possibility of free choice. That should be
regarded as too punitive and, in fact, was
weekly increase of over 2,000 men and
punishment enough. Instead, punishment driving people crazy."10 The pattern is
women. We need to build four new
in the United States often includes brutal
being repeated throughout the country.
prisons each week to accommodate the
increase at a capital cost of over $2
conditions and massive crowding.8
We impose more and more oppressive
billion a month. California spent $6.2
Overcrowding, and the resulting
control and wonder why the subjects
billion on new prison construction in the
become more angry and more dangerous
inhumane conditions, show no sign of
abatement. We appear willing, as a
past decade and the state's prisons are
when they come out.
(confd on page 13)
matter of choice, to warehouse more and
much more overcrowded today than 10

l

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THE NATIONAL PRISON PROJECT JOURNAL

SUMMER 1991 5

A PROJECT OF THE AMERICAN CIVIL L1BERTIES1UNION FOUNDATION, INC.
VOL. 6, NO.3, SUMMER 1991 • ISSN 0748-2655

Highlights of Most
Important Cases
In Wilson v. Seiter, 59 u.s. Law Week 4671
(U.S., June 17, 1991), the Supreme Court
reviewed its first prison "conditions of
confinement" case in a decade, and held that
in cases alleging cruel and unusual punishment, "inquiry into a prison official's state of
mind" is required. [d. at 4672. The plaintiff
had argued that if prisoners are deprived of
"the minimal civilized measure of life's
necessities," Rhodes v. Chapman, 452 U.S. 337,
347 (1981), the Eighth Amendment is violated
regardless of anyone's intent. The Court,
however, held that proof of this "objective
component" must be accompanied by proof of
a "subjective component" or "culpable state of
mind." [d. at 4672.
The Court rejected the lower court's view
that prisoners must show that prison officials
have acted with "persistent malicious
cruelty" to be found liable. Although a malice
standard has been applied when prisoners
challenge officials' emergency responses
during a prison disturbance, Whitley v. Albers,
475 U.S. 312 (1986), plaintiffs in an ordinary
conditions of confinement case need only
prove "deliberateindifference" to prevail. In
all cases, Seiter explains, "wanton" conduct
must be shown, but whether conduct is
wanton "depends upon the constraints facing
the official." 59 U.S. Law Week at 4673
(emphasis omitted).
Some commentators were qUick to label the
decision as a setback for prisoner litigants.
For example, the New York Times reported it
under a front-page headline reading 'Justices
Toughen Rule for Lawsuits on Prison
Cruelty."
This view is misleading, and stems from
reading the Seiter opinion in isolation,
without reference to existing practice in the
lower federal courts. There, the deliberate
indifference standard is already well
6 SUMMER 1991

established, particularly in litigation
concerning medical care, inmate-inmate
violence, and other threats to prisoners'
health and safety-areas in which prisoner
litigants have enjoyed their most consistent
success. In cases involving other conditions
of confinement, something like the deliberate indifference standard has been routinely
applied, though often without using the
term.
As the standard is applied, deliberate
indifference is generally established by
examining the facts of prison officials'
behavior rather than actual evidence of their
state of mind. In cases seeking injunctive
relief against ongoing conditions, deliberate
indifference has been construed to include
the collective defaults of state and local
governments, including their failure to
provide adequate staffing and funding, with
no requirement that personal fault be traced
to a particular wrong-headed perpetrator. In
damage cases, the requirement that such
personal culpability be fixed has long been
applied, not just in Eighth Amendment cases,
but in all cases brought under 42 U.S.C. § 1983;
but even in these cases, the focus is on the
defendants' actual behavior.
Even though Seiter describes deliberate
indifference as a "state of mind" and a
"subjective component," it explicitly relies on
this body of lower court law focusing on
evidence of behavior rather than mind-set.
In short, the effect of Seiter is chiefly to
ratify the long-standing status quo in the
lower federal courts.
Deliberate Indifference in
the Supreme Court
The Supreme Court initially defined
deliberate indifference in terms of what it is
not. In Estelle v. Gamble, 429 U.S. 97 (1976), it
held that deliberate indifference to prisoners'
serious medical needs constituted cruel and
unusual punishment, but that malpractice,
negligence, or inadvertent failure to provide
adequate care do not. Estelle cited examples
of deliberate indifference from lower court
cases but gave no general definition of the
term. In Whitley v. Albers, 475 U.S. 312 (1986),
at the other end of the intent scale, the Court
distinguished deliberate indifference from

actions taken "ml1#iciously and sadistically
for the very pur{}»se of causing harm,"
-'
holding that tMlatter must be provided in
challenges to actions taken to control prison
disturbances. Again, there was no general
definition.
Estelle and Whitley thus established that
deliberate indifference occupies a middle
ground between negligence and malice or
intentional misconduct. Later, for the first
and only time, the Court gave some affirmative content to the phrase in Canton v.
Harris, 489 U.S. 378 (1989), a jail suicide case.
There, the Court held that a municipality
could be held liable for inadequate police
training if the inadequacy amounted to a
policy of deliberate indifference. It observed,
that "it may happen that in light of the
duties assigned to specific officers or
employees the need for more or different
training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that the policymakers of the
city can reasonably be said to have been
deliberately indifferent to the need." [d. at
389-90.
Wilson v. Seiter thus adds almost nothing
to the Court's previous deliberate indifference cases, and does so purposefully and
explicitly, stating only that in all prison
conditions cases, "it is appropriate to apply
the 'deliberate indifference' standard
articulated in Estelle." 59 U.S. Law Week at
4673. Even this holding is stated in borrowed
language, quoted from a lower court opinion
by retired Justice Powell. LeFaut v. Smith,
834 F.2d 389, 391-92 (4th Cir.1987).
The Tort Context of Deliberate
Indifference
Though the Supreme Court has never
acknowledged it, deliberate indifference is
derived from well established tort principles.
The middle ground between negligence and
malicious intent has long been described as
"willful," "wanton" or "reckless" conduct,
meaning "that the actor has intentionally
done an act of an unreasonable character in
disregard of a known or obvious risk that
was so great as to make it highly probable
that harm would follow, and which thus is
usually accompanied by conscious indifferTHE NATIONAL PRISON PROJECT JOURNAL

ence to the consequences." Prosser and
Keeton, The Law of Torts, Sec. 34 at 212-13 (5th
ed.1984).
The Supreme Court's language in Canton v.
Harris, quoted above, closely parallels this
"conscious indifference" formulation, and
similar language has often been used by
lower courts. Thus, in a recent inmateinmate assault case, which Seiter cites as an
example of the standard, a federal appeals
court held that deliberate indifference is
shown "if there is an obvious unreasonable
risk of violent harm to a prisoner or a group
of prisoners which is known to be present or
should have been known, and [the defendants] were outrageously insensitive or
flagrantly indifferent to the situation and
took no significant actin to correct or avoid
the risk of harm...." Morgan v. District of
Columbia, 824 F.2d 1049, 1058 (D.C. Cir. 1987);
accord, Berry v. City ofMuskogee, 900 F.2d
1489,1496 (10th Cir.1990). Many lower
courts have routinely treated deliberate (or
"callous") indifference as substantially
equivalent to recklessness. See, e.g., Thomas v.
Booker, 784 F.2d 299, 305 (8th Cir.1986) (en
banc); see also Shaw by Strain v. Strackhouse,
920 F.2d 1135, 1145 (3d Cir.1990) (non-prison
case equating reckless indifference, deliberate indifference, and gross negligence);
Richardson v. Penfold, 839 F.2d 392, 395 (7th
Cir. 1988) (deliberate indifference is
established by proof of recklessness). But see
Canton v. Harris, 489 U.S. 378, 388 n.7 (1989)
(suggesting a distinction between gross
negligence and deliberate indifference);
Walsh v. Mellas, 837 F.2d 789, 794-96 (7th Cir.
1988) distinguishing among gross negligence,
deliberate indifference, and degrees of
recklessness).
State of Mind or State of Facts?
The central point about this supposed
intent requirement is that it is not really
about state of mind. As Prosser and Keeton
put it:
Since[con§.cious indifference]is almost
never admitted, and can beproved only by
the conduct and the circumstances, an
objective standard must of necessity in
practice be applied. The "willfur requiremen~ therefore, breaks down and receives at
best lip service, where it is clearfrom the
facts that the defendan~ whatever his state
of mind, hasproceeded in disregard ofa high
and excessive degree ofdanger, either known
to him or apparent to a reasonable person in
his position.
Prosser and Keeton, The Law of Torts,
§ 34 at 213-14 (emphasis supplied).
This is as true in constitutional tort cases
as in common-law tort cases. See, e.g., CortesQuinones v.jiminez-Nettleship, 842 F.2d 556,
559-60 (1st Cir.1988), cited in Seiter, 59 U.S.
THE NATIONAL PRISON PROJECT JOURNAL

Law Week at 4673 (jury could have "inferred"
or "found" deliberate indifference from
prison officials' actions in inmate-inmate
murder case); see also Miltier v. Beorn, 896
F.2d 848, 852-54 (4th Cir.1990); LeFaut v.
Smith, 834 F.2d 389, 393-94 (4th Cir.1987);
Bass v. Lewis v. Wallenstein, 769 F.2d 1173, ~<
1184-86 (7th Cir. 1985) (medical care cases>:A
focusing on actions and omissions of medtFal
and correctional personnel, not their mental
states).
c';;
Injunctive cases should yield simila~)t
results. In Prosser and Keeton's terms,'
conditions so serious as to deprive prisoners
of "the minimal civilized measure of life's
necessities" can hardly occur for any
substantial period without being known to
prison officials, or at least being apparent to
reasonable officials-Le., those who are doing
their jobs. Cj Seiter, 59 U.S. Law Week at 4672
("The long duration of a cruel prison
condition may make it easier to establish
knowledge and hence some form of intent")
(emphasis omitted). Certainly, once a suit
has been filed, prison officials are on notice
of the alleged conditions, and their failure to
take action at that point would strongly
support a finding of deliberate indifference
to prisoners' basic needs. See Duckworth v.
Franzen, 780 F.2d 645, 655-56 (7th Cir. 1985),
cert. denied, 479 U.S. 816 (1986).
Thus, plaintiffs need not psychoanalyze
prison officials to prove their Eighth
Amendment claims. If prison officials know,
or should know, of deprivations of basic
human needs in their institutions, and have
not remedied them, deliberate indifference is
presumptively established.
Whose Difference? Institutional
Practices
The dissenting Justices in Seiter expressed
concern that the deliberate indifference
standard will often be "impossible to apply"
because "intent simply is not very meaningful when considering a challenge to an
institution...." 59 U.S. Law Week at 4675. In
the abstract, they are correct. But in practice,
the lower courts have addressed this
"institutional intent" problem, holding that
deliberate indifference may be established by
showing "'repeated examples of negligent
acts which disclose a pattern of conduct by
the prison medical staff' or by showing
systematic or gross deficiencies in staffing,
facilities, equipment or procedures.'" French
v. Owens, 777 F.2d 1250, 1254 (7th Cir. 1985),
cert. denied, 479 U.S. 817 (1986), quoting
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980), cert. denied, 450 U.S. 1041 (1981);
Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977)
(medical care); accord, Eng v. Smith, 849 F.2d
80,82-83 (2d Cir.1988) (mental health care);
Fisher v. Koehler, 692 F.Supp. 1519, 1561-62

(S.D.N.Y.1988), aff'd, 902 F.2d 2 (2d Cir.1990)
(protection from violence). As in other
constitutional deliberate indifference cases,
the courts have applied an objective
standard, and one that is explicitly tailored
for institutional cases.
The "systematic deficiencies" approach also
addresses the situation alleged in Seiter in
which the officials claimed to have taken
remedial actions, but the plaintiffs alleged
that these actions failed to remedy the
unconstitutional conditions. Such ineffectual
reforms, whil6tthey might protect defendants from dllthage awards in the short run,
would in th~:iong run be revealed as further
systematic deficiencies, and the failure to
take more effective measures would come to
constitute deliberate indifference as their
inadequacy became obvious.
Nothing in Wilson v. Seiter purports to
overturn the systematic deficiencies
approach. Indeed, the Seiter opinion, in
observing (at n.1) that the lower courts have
"routinely applied" the deliberate indifference standard in cases about prison-wide
deprivation of medical care, cited as an
example the passage in French v. Owens from
which the "systematic or gross deficiencies"
language was quoted.
Whose Indifference? "Cumulative
Actions and Inactions"
Sorting out "cumulative actions and
inactions by numerous officials" is nothing
new to federal courts. All actions brought
under 42 U.S.C. § 1983 require proof of
"personal involvement," by act or omission,
regardless of the constitutional provision
relied upon.
In damage actions, this inquiry has
virtually been reduced to a formula. See, e.g.,
Williams v. Smith, 781 F.2d 319, 323-34 (2d Cir.
1986) (describing bases for supervisory
liability under § 1983). Moreover, a deliberate indifference standard has routinely been
applied to all sorts of claims of supervisory
liability in civil rights cases. See, e.g.,
Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st
Cir. 1989);Jones v. City of Chicago, 856 F.2d
985,992 (7th Cir.1988); McCann v. Coughlin,
698 F.2d 112, 125 (2d Cir.1983). These
principles are applied in Cortes-Quinones v.
jiminez-Nettleship, 842 F.2d 556 (1st Cir.
1988), a prison murder case cited in Seiter, in
which the court acknowledges that many
factors were beyond defendants' control, but
held that each defendant could be found
deliberately indifferent based on their own
actions and omissions in putting a known
psychotic prisoner in general population
with no psychiatric care.
In injunctive cases, the "personal involvement" inquiry is "broader and more generalized" than in damage cases and the focus is
SUMMER 1991 7

on "the combined acts or omissions" of the
officials responsible for operating prisons.
Leer v. Murphy, 844 F.2d 628,633 (9th Cir.
1988) (emphasis supplied); accord, Williams
v. Bennet~ 689 F.2d 1370, 1383-84 (llth Cir.
1982), cert. denied, 464 U.S. 932 (1983); see also
Fisher v. Koehler, 692 F.Supp. 1519, 1562
(S.D.N.Y.1988), aff'd, 902 F.2d 2 (2d Cir.1990)
(finding deliberate indifference to inmate
safety in City's "institutional failures" such as
overcrowding while praising the "obvious
sincerity and competence" of warden and
commissioner).
This approach is consistent with the
developing jurisprudence of "capacity."
Injunctive actions are generally regarded as
"official capacity" actions, which are treated
as identical to suits against the governmental
body involved. Kentucky v. Graham, 473 U.S.
159, 166-67 (1985). In such cases, the notion
of "systematic deficiencies" is most useful
and has been most widely applied.

The "Cost Defense" Issue
The Seiter majority rejected the criticism
that a state of mind requirement would
permit prison officials to escape liability on
the ground that "fiscal constraints beyond
their control prevent the elimination of
inhumane conditions." The Court first held
that such policy considerations could not
affect the decision whether an intent
requirement is implicit in the word "punishment." It then added that no "cost" defense
was before it and it was aware of no case in
which such a defense had been raised in
prison medical care litigation. 46 u.s. Law
Week at 4673.
The lower courts have explicitly addressed
this question, and the answer is different in
damage cases than in injunctive cases.
Personal damage liability may not be
imposed on a defendant for matters outside
his or her control, and the unavailability of
funding may fall into this category. Williams v. Bennett, 689 F2d at 1387-88; see also
Birrell v. Brown, 867 F.2d 956, 959-60 (6th
Cir.1989) (wher~unconstitutional conditions
resulted from budgetary constraints, prison
officials were entitled to qualified immunity). But courts will not assume the validity
of such a defense; an official who does have
power over the allocation of funds may be
held liable. See, e.g., Boswell v. Sherburne
County, 849 F.2d 1117, 1123 (10th Cir.1988)
(chief jailer and sheriff could be held liable
based on evidence that "inadequately trained
jailers were directed to use their own
judgment about the seriousness of prisoners'
medical needs" and that medical care was
restricted in order to save money);]ones v.
johnson, 781 F.2d 769, 771-72 (9th Cir.1986)
(supervisory officials could be liable for
budgetary restrictions on medical care);
8

SUMMER 1991

Ancata v. Prison Health Services, Inc., 769 F.2d
700, 705-06 (llth Cir. 1985) (sheriff could be
held liable for requiring court orders for
outside medical care).
Damage actions against the local governments are treated differently. Since the
governmental unit itself does have the
power to obtain and provide additional
funds, a cost defense is simply not available ,.'
to it. The failure to afford sufficient
resources to provide for prisoners' serious,
medical needs or other necessities of life~~;
clearly a policy of deliberate indifference
sufficient to support damage liability. jones
v.johnson, id.; Ancata v. Prison Health
Services, Inc., id. Damage actions against state
governments as such are, of course, precluded
by the Eleventh Amendment.
Injunctive actions are not subject to a cost
defense. As noted above, such actions are
treated as actions against the state itself, so
there is no argument that funding is beyond
the defendants' control. Accordingly, it is a
commonplace in injunctive actions that lack
of funds is not a defense to claims of
constitutional deprivation. Seiter, 59 U.S. Law
Week at 4675 n.2 and cases cited; Monmouth
County Correctional Institution Inmates v.
Lanzaro, 834 F.2d 326, 336-37 (3d Cir. 1987),
cert. denied, 486 U.S. 1066 (1987); Tyler v.
Black, 811 F.2d 424, 435 (8th Cir.1987),
modified on othergrounds, 865 F.2d 181 (8th
Cir.1989) (en bane); Duran v. Anaya, 642
F.Supp. 510, 525 (D.N.M. 1986); see Toussaint v.
McCarthy, 801 F.2d 1080, 1110 (9th Cir. 1986),
cert. denied, 481 U.S. 1069 (1987) ("The fact
that a remedy is costly does not preclude a
court from ordering the remedy.").

serve the contraband control interest, would
not serve the interest of avoiding favoritism.

Other Cases
Worth Noting

Protection from Inmate Assault
Hobbs v. Evans, 924 F.2d 774 (8th Cir.199l).
The plaintiff was assaulted three times by
other inmates after an officer told other
inmates that he was an informant. The
plaintiff notified the Director after the first
incident and filed grievances after the first
and second incidents. He was later transferred to a second prison, where a plot to kill
him was thwarted.
The district court found that the Director
was liable for failing to protect the plaintiff
at the second prison. This finding is reversed
because there was no proof that the plaintiff
was faced with a pervasive risk of harm
there and that the Director failed to respond
reasonably to it.
Testimony that an inmate labelled as an
informant is at "high risk of harm" supported
a finding that the officer acted with reckless
disregard in conveying that information to
other inmates.

u.S. COURT OF APPEALS
Religion-Practices
Friend v. Kolodzieczak, 923 F.2d 126 (9th
Cir.1991). Catholic inmates could be
prohibited from possessing rosaries and
scapulars in their cells. The rule, which
barred all property not supplied or approved
by the jail administration, served the interest
of contraband control, and its application to
Catholic religious items served to avoid the
impression of favoritism. The inmates were
permitted to attend services and exercise
other religious rights. The alternative of
inspecting the religious items, while it might

Procedural Due ProcessAdministrative Segregation
Kellas v. Lane, 923 F.2d 492 (7th Cir. 1990).
Regulations that listed factors that "among
other factors, may" be considered in making
recommendations for involuntary protective
custody placement do not create a liberty
interest because they do not place substantive limitations on prison officials' discretion.
Mandatory langu~e in procedural guidelines
does not by its~l~sreate a liberty interest. At
495: "[T]hese gUittelines are directed toward
the prison officials and, thus, do not create a
due process claim of entitlement on the
inmates' behalf."
Pregnancy, Childbirth and Abortion/
Medical Care-Standards of Liability
Bryant v. Maffucci, 923 F.2d 979 (2d Cir.
1991). The plaintiff asked for an abortion on
admission to jail; she appeared to be 21 weeks
pregnant; her request was marked "emergency"; she continued to make almost daily
requests. She was sent for the abortion after
three weeks, but her sonogram had been
wrong and it was too late for an abortion
under New York law. There had been a sixday delay in the delivery of her request to
the jail doctor; this is "inefficient, to say the
least," but not unconstitutional. The doctor's
scheduling an abortion near the end of the
legal limit, based on a sonogram that proved
to be wrong, was no more than negligence.
The constitutional standard for pre-trial
detainees' medical care remains unsettled. In
this case, no more than simple negligence
was alleged, and the Constitution was not
violated.

THE NATIONAL PRISON PROJECT JOURNAL

i -

I

I

Crowding/Modification of Judgments
Plyler v. Evatt, 924 F.2d 1321 (4th Cir.1991).
At 1324:
Prison reform litigation, and consent
decrees settling such litigation, present
particularly sensitiveproblemsfor courts
asked byprison officials to modify decrees
because of material changes in the "complex,
ongoingfactsituation" that inevitably
underlies such decrees. For in this area there
comes intoplay, as a counterweight to the
generalprinciple of restraint in modifying
anyjudicial decree, the Supreme Court's
admonition of cautious deference to the
judgment ofgovernment officials charged
with the sensitive task ofprison administration.... In thisparticular realm of institutional reform, therefore, the general needfor
flexibility in considering requestsfor
modification ofcomplex decrees may be
particularly acute.
...In genera4 modification should be
granted only when the change of circumstances urged by the movant was largely
beyond thatparty's contr04 and when
compliance has beenput beyond effective
reach despite a goodfaith effort by the
movant to comply.... And in the end, the
question whether equity requires modification is one committed to the district court's
discretion to be exercised through the
familiar process of balancing the interests of
the opposingparties and thepublic in light of
relevantsubstantiveprinciples. [Citations
omitted.]
The appeals court had previously held that
the relevant plaintiffs' interest was "not
entitlement to the specific benefit of every
term of the decree, but only the attainment
of overall constitutional conditions of
confinement-that being the 'essence of their
bargain.'" (1325) But that does not mean the
court must redetermine constitutionality
every time the defendants move for
modification. It means that "in assessing the
risk, and degree, of harm to the plaintiff class
from the mollification..., attention should not
be confined to the indisputable fact that
modification would necessarily abrogate a
specific benefit conferred by the decree. It
must also take into account the extent to
which the benefits still retained insured that
the 'broad public-policy objectives' of the
decree were not at risk from the proposed
modification." (1327) Later, the court
describes that objective as "relieving
overcrowding." (1329)
The district court's finding of a lack of
good faith in its efforts to comply with the
judgment is precluded by the finding on a
previous appeal, now law of the case, that
the state had acted in good faith in trying to
comply with population limits in the face of
an unanticipated population increase.
THE NATIONAL PRISON PROJECT JOURNAL

The district court is directed to "set its
hand to devising that form of relief which
will best insure continued progress toward
achievement of the broad public policy
objective of relieving overcrowding that
underlies the cell-space requirements of th~
decree, while accommodating the present )~'
impossibility of achieving that objective by~
the originally intended means of construo¥
ing additional facilities on a specific., '
timetable." (1329) The release of inmates
"must be considered the accommodatiQ~ of
last resort, in view of the essentially
unmeasurable but profound publicinterests
which it implicates." (1329) The court
suggests that this "draconian last alternative"
might be ordered based on "newly arisen bad
faith" by defendants.
Hazardous Conditions and Substances
McKinney v. Anderson, 924 F.2d 1500 (9th
Cir. 1991). The plaintiff alleged that he was a
non-smoker but was almost constantly
exposed to environmental tobacco smoke
because he was housed with a heavy smoker
and there were no smoking restrictions in
the prison.
At 1504: "compelled exposure to ETS
is...cruel and unusual punishment if it is at
such levels and under such circumstances as
to pose an unreasonable risk of harm to an
inmate's health." The issue is not the right to
a smoke-free environment but the health
risks to which the plaintiff is exposed. At
1507: "...[A] finding that ETS endangers human
health is sufficient to show an Eighth
Amendment violation, even without a
separate inquiry into society's evolving
standards of decency." At 1507: "If making
inmates breathe stagnant air is cruel and
unusual punishment, it must be even more so
to force inmates to breathe air containing
levels of known human carcinogens
sufficient to pose an unreasonable risk of
harm to human health." In addressing claims
of poor lighting, broken-down plumbing,
unsanitary food handling and polluted
water, "[w]e have not waited until these
conditions actually caused illness, but have
mandated relief based on the risk these
conditions entail." (1508)
Federal Officials and Prisons/
Correspondence-Legal and Official
United States v. Stotts, 925 F.2d 83 (4th Cir.
1991). Federal regulations requiring that mail
from attorneys and others be marked
"Special Mail-Open Only in the Presence of
the Inmate," or similar language, and bear the
name of an individual sender, were not
unconstitutional under Turner. The
requirement that the precise quoted phrase
appear on the envelope, in effect at the time
of filing and prescribed by the regulation,

was qualified by a 1988 Operations Memorandum that permitted the use of "similar
language indicating that [the letter] qualified
for special treatment and was to be opened
only in the presence of the prisoner." The
court does not rule on the original,
unmodified regulation.
Pre-Trial Detainees/Use of Force/
Summary Judgment
Gray v. Spillman, 925 F.2d 90 (4th Cir.
1991). The plaintiff alleged that he was
beaten by politlf officers during two
custodial intevogations while he was held in
the county ja~I on pending charges.
Injury is not an essential element of a
§ 1983 use of force claim; it comes into play
only in balancing the nature of the force
against its proffered justification, and not at
all when there is no justification. At 93:
The suggestion that an interrogee's
constitutional rights are transgressed only if
he suffersphysical injury demonstrates a
fundamental misconception of thefifth and
fourteenth amendments, indeed, if not our
system of criminaljustice.... The extent ofan
interrogee'sphysical injuries is relevant in
assessing the amount ofactual damages; it is
not a prerequisite to suit
The purported incredibility of the
plaintiff's account, supported only by
another prisoner of dubious credibility,
cannot be the basis for summary judgment.
Judicial Disengagement/Modification
of Judgments/Consent Judgments
EEO.C. v. Local5SO, International Assn. of
Bridge, Structural and Ornamental Ironworkers, 925 F.2d 588 (2d Cir. 1991). At 593:
...[T]hough a court cannot randomly
expand or contract the terms agreed upon in
a consent decree, judicial discretion in
flexing its supervisory and enforcement
muscles is broad.
Where equitable remedies which exceed the
confines of the consentjudgment are
reasonably imposed in order to secure
compliance ofthe parties, the court has not
overstepped its bounds, and its orders must
be obeyed.
Aconsent judgment that permitted the
parties to return to court "at any time" for
further orders and prOVided that jurisdiction
was retained for enforcement purposes gave
the court jurisdiction of "indeterminate
duration" to oversee compliance. The fact
that some provisions were time-limited did
not mean that the entire judgment was timelimited. At 593:
In addition, the court has inherentpower
to enforce consentjudgments, beyond the
remedial "contractual" terms agreed upon by
theparties. Unlike a private agreement, a
consentjudgment contemplatesjudicial
SUMMER 1991

9

interests apartfrom those of the litigants.
Until parties to such an instrument have
fulfilled their express obligations, the court
has continuing authority and discretionpursuant to its independenUuridical
interests-to ensure compliance.
Use of Force/Qualified Immunity/
Medical Care-Standards of LiabilityDeliberate Indifference
Al-]undi v. Mancusi, 926 F.2d 235 (2d Cir.
1991). Prison officials were not automatically
entitled to qualified immunity for uses of
force taking place before Whitley v. Albers,
that case did not newly declare a constitutional right but narrowed a right that had
previously been recognized.
The Whitley standard applies to all aspects
of the decision to use force in retaking Attica
during the 1971 disturbances. This "does not
mean that a prison riot affords prison
administrators limitless authority to employ
any means, no matter how brutal, to restore
order." (238) "However, this heightened
standard, framed to assure prompt and
effective action to use necessary force to
restore order, does not apply to actions of
prison officials unrelated to the decisions
about whether and how to use force for that
purpose." (238)
The Attica, Superintendent was entitled to
qualified immunity for the retaking: the
absence of a pre-attack ultimatum, the large
number of armed men sent into the prison
after the tear gas attack, and the use of correction officers as a back-up force might
amount to negligence or deliberate indifference, but were not shown to have been wantonly done for the purpose of inflicting pain.
The failure to plan for medical care stands
on a different footing. At 239:
Once it was decided to retake the prison by
force, the duty to make adequate provision
for medical needs arose to at least the same
extent as it does with respect to the normal
operation ofaprison. The Albers standard
applies to the decjsion to useforce and the
means selectedfor implementing that
decision, but not to the normal obligations of
prison officials to meet the minimal needs of
those in their custody.
Thus, the deliberate indifference standard
applies, and there is a jury question as to the
Superintendent's liability for lack of
attention to planning for medical needs.
Allegations that defendants condoned
brutal reprisals after the prison was retaken
are not governed by the Whitley standard. At
240: "The latitude accorded prison officials in
deciding when and how to use force to
retake a prison from rioting inmates has no
application to the summary infliction of
brutal punishment once the riot is quelled."
Allegations that the Superintendent received
10 SUMMER 1991

reports of brutality and must either have
observed it or deliberately avoided seeing it
were sufficient to create a jury question as to
his liability.
At 240:
...[Tjhere is considerable irony in the
argument ofprison officials who have in
~~
their custody scores ofprisoners convicted on .;~;
the testimony ofdisreputable criminals, that:,the testimony of criminals is incredible aSf!. '
matter oflaw when it accuses them of
unconstitutional conduct.

Pro Se Litigation
Wilson v. Barrientos, 926 F.2d 480 (5th Cir.
1991). In a Spears hearing (a device used in
the Fifth Circuit to clarify pro se cases and
determine whether in forma pauperis status
is appropriate), the court
must ascertain what the plaintiff is
claiming and may make limited assessments
of the plaintiff's credibility. In doing so, the
judge must take care that the evidence
considered is authentic and reliable. Witnesses should be sworn; appropriate crossexamination should be allowed; and documents should beproperly identified and
authenticated.
Here, the lower court improperly dismissed
two use of force cases, relying on testimony
from an internal affairs officer and a doctor
relying on unauthenticated medical records.
Religion-Services Within
Institution/Religion-Practices-Diet
Al-Alamin v. Gramley, 926 F.2d 680 (7th
Cir. 1991). Prison officials must be "evenhanded" in providing opportunities for
religious practice. At 686:
The rights of inmates belonging to
minority or non- traditional religions must
be respected to the same degree as the rights
Of those belonging to larger and more
traditional denominations. Of course,
economic and, at times, security constraints
may require that the needs of inmates
adhering to onefaith be accommodated
differentlyfrom those adhering to another.
Nevertheless, the treatment ofall inmates
must be qualitatively comparable.
The prison was not required to employ a
full-time imam even though it employed a
full-time staff chaplain (presumably
Christian) for the entire inmate population.
Where the outside imam was paid for four
hours of services a week, plus travel
expenses, the defendants had made "reasonable efforts" to accommodate Muslim
inmates' religious needs. There was no
allegation that the "totality" of treatment of
Muslims was less favorable than that of
other religious groups.
It was conceded that there was no
constitutional violation in defendants' ban

on non-commercially prepared Halal food for
Ramadan, since defendants would permit
plaintiffs to receive commercially prepared
food. The usual food policy was to identify
food containing pork and provide a pork
substitute for Muslim inmates.

Procedural Due Process-Administrative Segregation/ Monitoring/Law
Libraries and Law Books
Toussaint v. McCarthy, 926 F.2d 800 (9th
Cir.1990). The district court should not have
reappointed a moI1j.tor to review assignments
to administrativ,e;~gregation where there
was no showing,diat due process violations
continued or that voluntary compliance was
so unlikely that a monitor was necessary.
Prison administrative segregation
procedure permitted the prisoner to speak to
the Institutional Classification Committee,
but the actual decision was made by the
Criminal Activities Coordinator, "an official
who is in contact with counterparts at other
prisons as to gang activities." Under Hewitt,
the district court correctly required the
actual decision-maker to hear the segregated
inmate.
Periodic review every 120 days satisfied
due process; the district court should not
have required review every 90 days.
The question of law library access for
administrative segregation was mooted by
the creation of a separate library for
segregation. (Ie., the district court's requirement to provide legal assistance is vacated.)
At 804 "...[A]s long as one prisoner is unjustly
detained or one prisoner maltreated a lifeline
to the courts is precious. In the context of
this case the segregated prisoners' library is
part of the lifeline." This amended opinion
omits dicta suggesting that the right of court
access encompasses the right to file a
complaint or petition, then stops.
Religion-Services Within Institution/Religion-Practices-Diet/
Publications/Access to Courts
Johnson v. Moore, 926 F.2d 921 (9th Cir.
1991). Denial of a hearing before placement
in "celliockdown" did not deny due process;
this treatment was meted out to all inmates
not working or attending classes and was not
punitive. Transfer from federal to state
prison did not require procedural protections
in the absence of statutory or regulatory
limits on prison official's discretion.
The absence of a paid chaplain of the
plaintiff's Unitarian Universalist faith did
not deny the plaintiff a "reasonable
opportunity" to practice his religion. The
failure to provide a vegetarian diet did not
violate the First Amendment absent proof
that the plaintiff's vegetarianism is "rooted
in his religious beliefs." (923)
THE NATIONAL PRISON PROJEG JOURNAL

A"publisher only" rule was not constitutional as a matter of law where there was
nothing in the record concerning the extent
and availability of reading material in the
prison library and no support for prison
officials' conclusory security arguments. This
court construes the Wolfish holding
approving a modified publisher only rule as
turning on the availability of softcover
books from any source, hardcovers from
book clubs and bookstores, and publications
of all sorts from the prison library.
Federal Officials and Prisons/
Classification-Race/Work
Assignments/Access to CourtsPunishment and Retaliation
Williams v. Meese, 926 F.2d 994 (10th Cir.
1991). Aprisoner is not an "employee" of the
Federal Bureau of Prisons for purposes of an
employment discrimination claim under
Title VII, the Age Discrimination in Employment Act, the Rehabilitation Act or the Equal
Pay Act. The Bureau of Prisons is also not a
"program or activity" under the Rehabilitation Act.
Allegations that the plaintiff was assigned
jobs inconsistent with his prior work
experience and physical abilities did not
state an Eighth Amendment claim.
The plaintiff stated a Bivens claim under
the Fifth Amendment for racial discrimination in prison employment.
An allegation that the plaintiff was
transferred from one job to another or
denied particular job assignments in
retaliation for administrative grievances or
lawsuits stated a First Amendment claim.
Procedural Due ProcessAdministrative Segregation
Chandler v. Baird, 926 F.2d 1057 (11th Cir.
1991). Florida regulations do not create a
liberty interest in staying out of administrative segregation. This conclusion is based on
the absence of mandatory procedural
language; the "s.ubstantive predicates" are
very similar to those in Hewitt v. Helms.
Refusal over 16 days to permit the plaintiff
to call his attorney, to provide writing
materials and legal materials, and to take
him to the law library did not deny access to
courts where there was no evidence of a
legal proceeding that could have been
affected by the refusals. At 1063:
We resist makingany sweeping declaration concerning the needfor a prison inmate
to establish prejudice arising out ofalleged
restrictions ofhis access to courts. In some
cases, theprejudice inheres in the specific
facts.... In many class actions the challenge is
systemic, embracing the basic adequacy of
materials and legal assistance made
available to all or subgroups oftheprison
THE NATIONAL PRISON PROJECT JOURNAL

popUlation. In still other cases the conditions
challenged obviouslygo to the heart ofany
meaningful access to libraries, counse~ or
courts. But the instant case is of the genre at
the minimal end of the deprivation
spectrum. That is to say that the alleged
•
deprivations are ofa minor and short-lived ~'
nature and do not implicategeneralpolicieSt\
In such a case, prejudice must be shown.
+
An allegation of confinement without,;>~'
bedding or clothing other than undershor:t~
in a cold and filthy cell, without toilet p~Der,
running water, soap, and toothpaste for·
several days of his confinement, stateda
claim under the Eighth Amendment whether
or not it caused injury or illness. The
plaintiff's description of the conditions and
his question during his testimony, "What
kind of effect would that have on you?" were
"sufficient to preserve the issue of harm."
(1066)
Pre-Trial Detainees/Qualified
Immunity/Crowding/Emergency/
Class Actions-Effect ofJudgments
and Pending Litigation
Brogsdale v. Barry, 926 F.2d 1184 (D.C.Cir.
1991). The district court found that a riot and
fire in which the plaintiffs were injured was
a predictable consequence of illegal overcrowding, and that jail officials could be held
liable in their personal capacities for
violating court orders limiting crowding.
The court expresses "grave doubts" about
the finding of liability, since the district
court expressed uncertainty as to whether
the overcrowded conditions at the jail were
unconstitutionaL Afinding that overcrowding "had created an environment ripe for a
violent explosion" could support a finding of
unconstitutionality. But the district court's
view that damages may be awarded for
crowding where the inmates were "legitimately but nevertheless subjectively
frustrated by the crowded conditions"
regardless of unconstitutionality has no
support in the law.
The defendants were entitled to qualified
immunity despite their violation of court
orders because the court orders were limited
to restricting the conditions under which
inmates could be double celled and, more
importantly, it is not clear whether the
defendants were actually in violation as of
the date of the riot and fire. The court's
findings only covered a period ending three
days before the riot and defendants claimed
double celling had ended by then. As of 1983,
the constitutional law of crowding was
largely "uncharted territory, in which very
general rules had been articulated but in
which fact-specific applications of those
rules were few." (1190)

Procedural Due Process-Disciplinary
Proceedings/Federal Officials

and Prisons
Young v. Kann, 926 F.2d 1396 (3d Cir. 1991).
The plaintiff was disciplined in part for
writing a threatening letter. The hearing
officer refused to produce the letter for his
inspection (and did not read it himself,
relying instead on an investigator's description of it). The letter in fact contained no
threatening remarks.
Prisoners have a right to "produce
evidence" that is'!ilimited only by the
demands of prisQi'ler safety and institutional
" by the sound discretion
order, as deterqffned
of the prison authorities." (1400) Where there
was no apparent security reason for failing
to produce the letter, due process was
violated by refusing to produce it. The fact
that there was "some evidence" other than
the letter to support the charge did not
excuse this denial of due process. (1403)
The court also suggests that reliance,
without corroboration, on an oral summary
of the letter by a prison staff member may
itself deny due process; the court analogizes
these facts to the use of unverified confidential informant information.
The hearing officer's refusal to let him
hear or respond to the investigator's
testimony concerning the letter and other
aspects of the case also denied the plaintiff
due process (whether independently or only
in connection with the other facts is not
clear from the opinion). If testimony is not to
be presented directly by witnesses, it must
still be disclosed in enough detail for the
inmate to rebut it intelligently.
Afederal regulation providing for the
prisoner's presence during witness testimony
may establish a due process right regardless
of the regulation's constitutional basis or
lack of it.
Due process was not violated in a second
disciplinary hearing by failure to present the
plaintiff with a copy of the investigator's
report, since he had waived his right to have
a staff representative present. Federal
regulations provide that this material is
provided to the staff representative.
DISTRICT COURTS
Pre-Trial Detainees/Unsentenced
Prisoners and Convicts Held inJails
Carver v. Knox County, Tenn., 753 F.Supp.
1370 (E.D.Tenn.1989), aff'd in part and rev'd
in part, 887 F.2d 1287 (6th Cir.1989). On
appeal from this belatedly reported decision,
the Sixth Circuit affirmed the district court's
"findings of historical fact" but reversed the
relief it granted against state prison officials
for backing up inmates in the jail, holding
that it should have transferred a portion of
SUMMER 1991

11

the action to the district court with jurisdiction over the state-wide prison crowding
litigation. It also remanded for reconsideration of the findings of unconstitutionality
based on its rejection of the "totality of the
circumstances" approach in detainee as well
as Eighth Amendment cases. The district
court then reaffirmed all of its conclusions
of law, denying that it utilized a "totality"
approach or held crowding per se unconstitutional. Cite the merits holdings in this
opinion remandedfor reconsideration, 887
F.2d 1287 (6th Cir.1989), adhered to on
remand, 753 F.Supp.1398 (E.D.Tenn.1990).
Crowding(1386-87): The Tennessee
Corrections Institute, applying a space
standard of 25 square feet of free floor space
per inmate, rated the jail's capacity at 228; a
population reaching 260-270, resulting in
many inmates sleeping on dayroom and
drunk tank floors, was unconstitutional for
both convicted and pre-trial prisoners. The
court cites the length of stay, the lack of
fresh air and opportunity for outdoor
exercise, and the failure promptly to provide
"basic necessities such as mattresses, sheets
and towels" and "personal hygiene items such
as toothpaste, toothbrushes, and toilet paper."
Conditions in the drunk tank were "particUlarly deplorable"; it was designed to hold 12
people for up to 48 hours but regularly
housed 30 to 50 people for periods exceeding
a month. The court adheres to its oral ruling
at trial that no more than 16 persons can be
held in the drunk tank. At 1392-93: The court
reaches similar conclusions with respect to
the Intake Center, which has held up to 143
inmates and has a TCI-rated capacity of 127,
and to its drunk tank.
Crowding, Protectionfrom Inmate Assault
(1387-88): There is a pervasive risk of harm in
the drunk tank when it contains 30 to 50
inmates. With respect to the whole jail, what
was once "occasional violence" (one violent
incident a week) had because of crowding
become a "pattern of violence" (one incident a
day with two or three inmates a week going
to the hospital), b~t the court finds that the
plaintiffs have not proved there is an "atmosphere of violence" in the jail. (The violence
figures, taken from a captain's testimony
rather than records, include "altercation by
words" [1379]). At 1392: The same conclusion is
reached as to the Intake Center.
Crowding, Classification (1388): Crowding
has caused a breakdown of the jail classification system. "It is well settled that courts have
ordered prison administrators to institute, at
the very least, minimal classification systems
which separate inmates by 'age, offense,
physical aggressiveness, or other criteria
which would warrant separate housing
arrangements.''' [Citation omitted] Defendants
are therefore directed to reinstitute their
12 SUMMER 1991

classification system or start a new one.
Crowding, Exercise and Recreation (1389):
The failure to provide any opportunity for
outdoor exercise was not per se unconstitu~
tional except for inmates held for more than
a year. The failure to provide any meaningful exercise at all, resulting from the use of
dayrooms for housing prisoners, was unconstitutional; the court will hear proof concerning the usability of dayrooms for exer- ..
cise and the feasibility of exercise programs;
and equipment. In this jail, lock-in time was;
limited to seven hours a day.
Pre-Trial Detainees/Crowding/
Unsentenced Prisoners and Convicts
Held inJails
Carver v. Knox County, Tenn., 753 F.Supp.
1394 (E.D.Tenn.1989), rev'd in pertinentpart,
887 F.2d 1287 (6th Cir.1989). The court finds
that the overcrowding that it previously
found was largely caused by a backup of
inmates from the state prison system, and
requires the state to remove enough inmates
to bring the county jail down to its capacity
as rated by the Tennessee Corrections
Institute. This order has been reversed and
the district court directed to transfer this
portion of the case to the district court with
jurisdiction over the population limit on the
state prison system.
In Forma Pauperis
Wiideman v. Harper, 754F.Supp. 808
(D.Nev.1990). Atrial court may require a
prisoner bringing a civil rights action in
forma pauperis to pay fees and costs if the
prisoner acquires some money during the
pendency of the case. However, § 1915 does
not require the prisoner to choose between
paying the filing fee and supporting himself
or his family. The district court should not
have revoked the plaintiff's in forma
pauperisstatus based on his receipt of $1000,
which he said he had used to help support
his mother, without considering the validity
of his claim, his financial status between
filing and receiving the $1000, and the
possibility of a partial filing fee. The law
concerning partial filing fees is reviewed at
length.
Crowding/Contempt/Modification
ofJudgments
Morales Feliciano v. Hernandez Colon, 754
F.Supp. 942 (D.P.R. 1991). The court granted a
temporary injunction halting all admissions
to one prison until the population had been
reduced to the previously court-ordered
capacity and until running water was
available in all areas of the institution.
The defendants were not entitled to
modification of a 55-square-foot crowding
standard based on their stated intention to

implement an "emergency temporary
housing project," which the court describes as
"a last minute effort by defendants, reflecting the exigencies of litigation," (946) and
which they could have undertaken long
before. (They had previously relied on an
unwritten "comprehensive compliance plan,"
now apparently abandoned.) The defendants
did not show that the proposed modification
would advance the provision of minimally
adequate living and sleeping space and were
not entitled to modification under any
standard. At 948: "~efendants are entitled to
implement any 'cQihprehensive compliance
plan' they Wish, s.o"long as that plan comports
with existing orders in this case."
Defendants are found in contempt of the
55-foot standard, as they were previously
found in contempt of the 35-foot standard.
The court imposes prospective fines of $10.00
per prisoner per day in excess of the maximum capacity, to be increased by $5.00 per
prisoner each month for continuing
violations.
Transfers/Federal Prisons and
Officials/Exhaustion of Remedies
Miller v. Thornburgh, 755 F.Supp. 980
(D.Kan. 1991). ADistrict of Columbia prisoner
challenging his confinement in a federal
prison need not exhaust administrative
remedies. The agreement between the federal
government and the District of Columbia is
not subject to the Compact Clause of the
Constitution; it is sufficiently authorized by
federal statute and D.C. law.
Correspondence-Legal and Official
Weaver v. Toombs, 756 F.Supp. 335
(W.D.Mich.1989), afi'd, 915 F.2d 1574 (6th Cir.
1990). Two plaintiffs sent legal materials to
the third plaintiff so he could help them
with their legal problems. They alleged that
the materials were confiscated and not
returned.
The opening and reading of inmate-inmate
correspondence is reasonable under the
Turner standard. The confiscation of their
legal materials pursuant to policy was
reasonable. The policy of permitting inmates
to render legal assistance to each other only
after agreeing in writing to the terms of
assistance and obtaining prior written
approval from the prison administration,
which approval was to be granted except
under specified conditions, was reasonable in
light of defendants' interest in avoiding
exploitation by prisoners providing legal
services. •

John Boston is director of the Prisoners'
Rights Project, Legal AidSociety ofNew York.
He regularly contributes this column to the
NPPJOURNAL
THE NATIONAL PRISON PROJEG JOURNAL

(confdfrom page5)

New Developments in International
Human Rights
At the same time, there are exciting
new developments in the international
human rights field. The world is getting
smaller every day. The barriers are
coming down in Eastern Europe. In 1992,
member states in Western Europe will
come together as the European Community. In May of 1990, I met with a
delegation from the Soviet Union that is
developing structures to protect human
rights in their juvenile institutions and
prisons.l1 One year ago, the Council of
Europe conducted an International
Conference in Scandinavia.J2 The
program examined the current application of international standards to the
human rights of persons deprived of
their liberty. It also looked at inequality
and discrimination against people
because of poverty, social exclusion,
ethnic minority status and race, and
diseases such as AIDS.
Adopting a "Less is Better" Response
It will be difficult, if not impossible, to
deal with the human rights violations
that result from prison conditions and
practices without first addressing the
problem of overcrowding. Some distingUished penologists and sociologists
argue that prisons should be abolished or,
indeed, that the criminal justice system
in our society should be abolished. M. Kay
Harris, Professor of Criminal Justice at
Temple University, has made a convinc-

ing case for the proposition that if we
were to replace our male dominated
system of social control with a model
based upon feminist views of gender,
racial and economic equality, we would
necessarily abolish our system of
imprisonment.I3
)~~
I would like to agree with the aboli-';;
tionists but I have not yet come up wi!h

an acceptable alternative to prison. I do
not see abolition happening in the next
100 years.
To do nothing about prison overcrowding is immoral, yet quite often it is the
deliberate policy choice of elected
officials. They can brag about being
tough on criminals while saving taxpayer dollars and then scapegoat federal
judges who intervene when the overcrowding results in unconstitutional
conditions of confinement.
We have to try to do more with less, to
consider prison space a scarce resource,
reserving it in the main for short prison
terms for those offenders who must be
punished by incarceration. We must
begin to tell the public the truth: that
prisons have nothing to do with crime
control.
We should eliminate most mandatory
minimum sentences, eliminate most
repeat offender enhanced sentences and

shorten our sentences to lengths comparable to other industrial democracies. If
we have one prison bed for the next
three years, I would rather use it to
sentence 12 burglars to three months
each than one burglar for all 36 months.
Our current drug policies are proving
to be as costly, ineffective and counterproductive as the prohibition of alcohol
was 60 years ago. We can make a huge
impact on prison overcrowding by
adopting rational new drug policies. We
must remove \nost drug issues from the
criminal just~ system and deal with drug
abuse, as with alcohol and tobacco abuse,
as a public health problem. We should
divert the huge amounts of money now
going into ineffective law enforcement
programs into education, treatment and
other social welfare programs.
AHuman Rights Proposal
The current international human
rights movement offers a chance to bring
the problems of prisoners out of the
darkness. We have an opportunity to
change the inhumanity that too often
exists in prisons.
We must devote our efforts toward the
goal of a uniform acceptance by all
governments, as well as the media and
the public, of the principle that prisoners
must be afforded certain fundamental
rights if we are to regard ourselves as a
civilized society.J4 Those must include:
1. The right to personal safety.
Large, overcrowded prisons are dangerous places and a person in custody is
generally helpless to protect himself. The
obligation of the state to provide safe
custody is imperative.
2. The right to care. Decent, clean
housing, adequate diet, enough clothing,
and medical care are basic needs of all
citizens and they must be prOVided for
prisoners who cannot provide for
themselves.
3. The right to personal dignity. Selfrespect is hard to come by among the poor
and racially oppressed persons who fill
our prisons, and a prisoner's sense of
worth must not be further damaged by
the humiliations of confinement.
4. The right to work. Idleness is a
~ disease of United States prisons. A
~ prisoner should be provided work if he
.3 or she wants it and should be paid on the
~ same basis as in the free labor market.
Responsibilities for housing and depen:>2 dents should be met by the prisoner, just
15 like the rest of us.
] 5. The right to self-improvement. A
range of educational, vocational,
recreational, and artistic programs

i
At Oklahoma's new maximum security facility, built largely underground,
prisoners will spend 23 hours a day in their cells.
THE NATIONAL PRISON PROJECT JOURNAL

SUMMER 1991 13
r!

should be available to every prisoner so
that we do not perpetuate the lack of
opportunity which drives so many poor
people to criminality in the free world.
6. The right to vote. Electoral
disability, unique to the United States in
the free world, protects no one and
serves as a pointless humiliation to the
prisoner. Participation in the democratic
process should be encouraged in the
interest of making citizenship a real and
vital feature of the prisoner's future life.
7. The right to a future. Aperson
who is isolated from the outside world
can hardly plan for or even conceive of a
future. Existing barriers should be
removed and contact with families,
friends, and the general outside community should be encouraged.
We must move our current system

from one that is based upon vengeance
and punishment to one rooted in
principles of justice and equity.•

AlvinJ. Bronstein is the executive
director of the National Prison Project.
'''Swedish Farm Animals Get a Bill of Rights," New
York Times (October 25, 1988).

'Letter from Ole Ingstrup, February 14, 1991.
3See proposed revisions to standards 3-4128, 3-4128"'
1and 3-4128-2 of the ACA standards for adult cor- .. "
rectional facilities dated January 1, 1991, to be
,:
considered at the August 1991 meeting of the ACA ,.
Standards Committee in Minneapolis.
'The Sentencing Project, "Americans Behind Bars:
AComparison of International Rates of Incarceration" (Washington, D.C.: 1991).
5National Center on Institutions and Alternatives,
"Young African-American Men and the Criminal
Justice System in California" (San Francisco, CA: 1990).
6"Lockup," u.s. News & World Report (October 22,
1990).

ASCA Proposes Watering Down
of Single-CeIling Standards
he Association of State Corrections
Administrators (ASCA) has
proposed a troubling revision to
the current American Correctional
Association's Adult Correctional Institution Standard 3-4128. This standard
addresses the conditions under which
multiple occupancy housing for medium
custody prisoners is acceptable. Opponents of this proposed revision posit that
it would seriously aggravate an already
abysmal corrections system. The ACA
Standards Committee will consider the
proposal at its August 1991 convention in
Minneapolis. ASCA President Tom
Coughlin has asked the ASCA Policy and
Resolution Compiittee to gather input
nationally and to formulate a statement
on the multiple occupancy policy
consideration. The ACLU National Prison
Project and a considerable number of
practitioners and scholars in the field of
corrections emphatically oppose the
revision. If it is approved by the Standards Committee, Judge David Bazelon's
statement made upon his resignation
from the Commission on Accreditation
for Corrections that the "noble promises"
of the accreditation process have become
meaningless will have found contemporary affirmation.l

T

The Proposal

The critical policy change would
14

SUMMER 1991

permit housing of medium security
prisoners in a multiple occupancy or
dormitory facility with up to 50 other
inmates, whereas currently, under no
circumstances can such inmates be
housed in that manner. It would also
reduce the space from 35 square feet per
prisoner (as established by the 3rd
Edition of the standard) for prisoners
who cohabit with two to 50 others, to 25
"unencumbered"2 square feet. This is a
decrease from 50 square feet per prisoner
set out by the 2nd Edition.
The proposal also requires compliance
with other current housing standards
before compliance with the revised
standard is achieved. Certain cell
furnishings, and access to toilets and
washing facilities are referred to. Also,
"direct supervision" is required as a
condition-precedent to compliance with
the revised standard. These restrictions,
if concurrently implemented, could stand
to protect prisoners and staff from the
dangers of multiple occupancy cells or
rooms. However, it ignores several
critical factors. Adequate ventilation to
accommodate the increased population, a
proportional increase in the number of
staff patrolling these facilities, and
adequate expansion of programming and
services such as mental health and
medical care appear not to have been
contemplated in light of the proposed

'National Prison Project of the ACLU, "Status
Report: The Courts and the Prisons" (Washington,
D.C.: 1990).
81 am not suggesting that conditions in U.S. prisons
are worse than elsewhere. Although some countries
have a greater regard for the human rights of
prisoners (e.g., the Scandinavians), many have worse
conditions than those that exist today in America.
9"New Prison Cellhouse Sets Pace For Security," The
Sunday Oklahoman (February 24, 1991).
IO"High-Tech Facility Ushers in New Era of State
Prisons," Los Angeles Times (May 1, 1990).
"Consultation on Projects concerning prison conditions in the USSR, The Human Rights Project Group.
"Seventh International Colloquy on the European
Convention on Huma~Rights, May 30-June 2, 1990.
13"Exploring the Conpections Between Feminism
and Justice," The NPPYOURNAL, No. 13, Fall 1987.
"These rights were first enumerated as essential
elements of his "citizenship model of corrections" by
the distinguished penologist, John Conrad, and
adapted by this author in Our Endangered Rights, N.
Dorsen, Ed. (Pantheon Books, 1984).

revision, though clearly they will be
affected. Prisoner and staff health and
safety interests are too important to be
left unaddressed and unprotected.
The proposed revision also conditions
double-celling on a proper classification
scheme to identify medium security
prisoners. However, the reference fails to
add any meaningful safeguards. One
cannot ignore the fact that in today's
prison environment, proper classification
is among the first principles to be
jettisoned under the pressure of the
enormous numbers entering the system.
Due to increasing prison populations, it is
not unusual to find maximum or close
security prisoners housed in medium
security facilities, including dormitories.
Another reality of today's prison system

THE NATIONAL PRISON PROJEG JOURNAL

nant of disruptive behavior and violence
than the total number of prisoners in a
given institution.9The correlation is
particularly acute where youth offenders
are in the sample observed.1O Similarly,
prisoners with a greater need for interpersonal distance engaged in violent and
aggressive behavior more frequently.u
Physiological Ramifications

§
~
::E

A proposal being considered by the ACA to allow double-ceiling puts inmate
health and safety at risk.

and economy is that the states simply
cannot hire the staff needed to fulfill
the classification requirement of the
proposal. Nor can the institutions
maintain the qualified and experienced
staffing necessary to sustain a rigorous
screening plan due to this resource
inadequacy.
The revision proposed by the ASCA
would further impair the environment
in which medium security prisoners live.
"There can be little denying that the
context in which one lives and works
impinges upon and shapes the
individual's behavior both then and in
the future....N:owhere else may the
importance of the environmental
context be so significant as in prisons."3
As a product of this environment, some
prisoners deteriorate, others improve,
and still others show little or no change.4
As the literature emphasizes, crowding
is a matter of perception. That perception
is affected by a number of sub-aspects
other than sheer space per prisoner (i.e.
structural characteristics, social density,
privacy, etc.). Research findings suggest
that "social density" rather than "spatial
density" determines the level of prisoners' coping ability or pathological
reactions to their condition.5The
proposal, if adopted, would affect both
conceptual aspects of crowding.
THE NATIONAL PRISON PROJECT JOURNAL

A1963 American Foundation Institute of
Corrections evaluation determined that
prisoners, staff, and prison administrators
preferred single cells to dormitories.6
Moreover, suicide, nonviolent and violent
deaths, psychiatric commitments, assaults,
disciplinary infractions, attempted suicides, self-mutilations, illness complaints,
and high blood pressure were found to
occur more frequently among prisoners
housed in multiple-occupancy units?
Social Upheaval

The increased stress, tension, fear,
anxiety and hostility created by crowding will find an outlet in several ways.
Some prisoners will try to "escape" from a
stressful and constantly intrusive
situation by emotional withdrawal,
apathy, and resignation. Others will try to
stake out personal territory in a more
aggressive manner and may form
protective groups or cliques to defend
their "turf," leading to group as well as
one-on-one confrontations. These signs of
increased pathology appear to be associated with several factors: "presence of
other residents, low space per person,
double-bunking, and lack of privacy".8 As
noted above, some research suggests a
correlation between multiple-occupant
dwelling and Violence; the amount of
personal space may be a greater determi-

The high density and close confinement necessitated by dormitory housing
also appear t~be related to physiological
measures of,$:tress such as pulse rate,
diastolic and systolic blood pressure, and
palmar sweatl2, to the increased danger
of the spread of acute infectious diseases,
and to have a deleterious effect on
inmate mental health.13 As a result of
research into the causes of and distribution of disease, it is now known that the
common respiratory diseases-influenza,
the streptococcal diseases, and the
pneumonias-are spread through
interpersonal contact, or by articles
soiled by discharges from the nose and
mouth, or discharges into the air by
breathing, coughing, sneeZing, spitting, or
even talking.14 Prison crowding has been
linked to an increased incidence of
communicable diseasel5 such as meningococcal disease,16 and also to the development and spread of such potentially fatal
diseases as pulmonary tuberculosisP The
proposed revision provides no mechanism whereby the essential adjustments
to the ventilation at a facility may be
adopted to accommodate large numbers
of closely confined prisoners.
Psychological Deterioration

Among the harmful effects on mental
health associated with crowded habitation and exacerbated by close liVing
revealed in the research literature are
increased psychiatric symptoms, nervous
breakdowns, alienation, and low selfesteem.18 Such conditions also cause
stress-related disease.19 These stressrelated conditions are evidenced
physiologically by elevated blood
pressure,zo and increased sweating.21

Legal Consequences
The proponents of the standard change
argue that its adoption will reduce the
states' susceptibility to constitutional
challenge and judicial intervention.
However, experience teaches that the
more likely impact is further deterioration of conditions and reduction of
services, thus bringing the likelihood of
more rather than less litigation. Legal
assistance organizations like the National
SUMMER 1991

15

Prison Project of the ACLU will increase
their efforts while prisoners are likely to
increase their pro se filings. Moreover, to
the extent that these worsening prison
conditions can be shown to be "egregious" under the 1980 Civil Rights of
Institutionalized Persons Act (CRIPA)2z
they will come under increasing scrutiny
by the Civil Rights Division of the U.S.
Department of Justice.
Awidely held misconception is that
compliance with the ACA standards or
accreditation will immunize the state or
at least make less likely judicial intervention by way of lawsuits brought by
prisoners or on behalf of prisoners. In
reality courts apply their own standards
when scrutinizing conditions in light of
the Eighth Amendment to the U.S.
Constitution. The Court in Rhodes v.
Chapman, the seminal case concerning
conditions of confinement, plainly held
that compliance or lack of compliance
with professional standards (such as the
ACA's) simply does not establish or refute
an alleged violation of the Eighth
Amendment,23 Looking at the broader
totality of conditions in a prison or jail, a
court must find "unquestioned and
serious deprivations of basic human
needs" or "(deprivation) of the minimal
civilized measure of life's necessities"
which include food, clothing, shelter,
medical care and personal safety.z4

IDavid Bazelon, "The Case Against Accreditation,"
Compare the scope of this inquiry to the
Prisoners and the Law, ed. Ira Robbins (Clark
inquiry necessary to determine compliBoardman Co., Ltd., 1985).
ance with the space now proposed.
2"Unencumbered square footage" is a novel
Indeed, courts have determined that
approach to density calculation. It is determined by
multiplying the length and width of the cell and
facilities were unconstitutional despite
subtracting from that figure the total number of
the fact that the Commission on Accredisquare feet encumbered by fixed equipment or
tation for Corrections (CAC) had
furnishings.
approved accreditation. Moreover, since
3Lynne Goodstein and Kevin Wright, "Inmate
the space standards are not mandatory,
Adjustment to Prison," The American Prison: Issues in
• Research and Policy, ed. Lynne Goodstein and Doris
candidate for accreditation need not
Layton MacKenzie (Plenum Press, 1989), pp. 229-246.
comply with them in order to be
4L.H. Bukstel and P.R. Kilmann, "Psychological
awarded such accreditation by the
Effects of Imprisonmept on Confined Inmates,"
Z5
Commission.
Psychological BulletiWf,8 (1980), pp. 469-493.

Political Reality

These proposals, if approved, will
drastically undermine the efforts of
corrections commissioners who have
used the ACA standards as a lever to pry
additional resources for improvements in
conditions and services out of recalcitrant legislators and governors. Upon
passage of these proposals, legislators and
governors will seize the opportunity
provided to cut high construction and
operating expenses at the cost of prisoner
and staff health and safety. Indeed, this
process has already begun. The General
Accounting Office recently suggested to
Congress that substantial operating and
construction costs for federal prisons
could be substantially reduced if the
Bureau of Prisons would change its
policies to permit more double-bunking
in its new and existing facilities which
are not high security.z6
The proposal submitted to the ACA by
the Association of State Corrections
Administrators, if adopted, would
adversely affect the physical and mental
well being of the incarcerated. The
proposals do not reflect an attempt to
advance the system of corrections in
America. Rather, they represent an
abandonment of principle motivated by
political and financial considerations. As
Judge Bazelon noted before, this is
merely an "attempt to paper over the
crises in corrections."Z7 Clearly, the
dilution of spatial and social density
standards is fueled by a swelling sector
of our population more readily sentenced
to longer terms of incarceration in a time
when many states and localities are
saddled with serious financial problems.
The ACLU National Prison Project rejects
the notion that this is a necessary, much
less humane solution to a fundamental
problem in the American criminal justice
system.•

William C. Harren a National Prison
Project Fellow, was recently admitted to
the New York Bar.
16

SUMMER 1991

5P.B. Paulus, V. Coxf~ti. McCain and J. Chandler,
"Some Effects of CrQwding in a Prison Environment,"
journal ofApplied Social Psychology, 5(1975), pp. 8691.
6Wright and Goodstein supra. n.3.
7Id.
"U.C. Cox, P.B. Paulus, and G. McCain, "Prison
Crowding Research; The Relevance for Prison
Housing Standards and a General Approach
Regarding Crowding Phenomena," American
Psychologist, 39 (1984), pp.1148-1160.
9D.A. D'Atri, "Psychophysiological Responses to
Crowding," Environment andBehavior, 7 (1975), pp.
237-252. See also Edwin I. Megargee, "The Association
of Population Density, Reduced Space, and
Uncomfortable Temperatures with Misconduct in a
Prison Community," Americanjournal of Community Psychology, 5(1977), pp. 289-298.
lODerek Ellis, "Crowding and Prison Violence:
Integration of Research and Theory," Criminal
justice and Behavior, 11 (1984), pp. 277-308.
HId
12D.A. D'Atri and A.M. Ostfeld, "Crowding: Its Effects
on the Elevation of Blood Pressure in a Prison
Setting," Preventative Medicine (1975). See also D.A.
D'Atri and E.F. Fitzgerald, S.V. Kasi, and A.M. Ostfeld,
"Crowding in Prison: The Relationship Between
Changes in Housing Mode and Blood Pressure,"
Psychosomatic Medicine, 43 (1981), pp. 95-105.
13Bailus Walker, Jr. and Theodore Gordon, "Health
and High Density Confinement in Jails and Prisons,"
Federal Probation (March 1980).
14Richard L. Riley, "Airborne Infection," 57 The
Americanjournal ofMedicine 466-75 (1974).
ISAnnual Report, Commission on Acute Respiratory
Disease. Armed Forces Epidemiological Board (19511952).
16J.W. Millar and C.E. Alexander, "Epidemiology of
Meningococcal Disease," Proceedings ofthe First
Symposium on Aerobiology (1963).
17L. King and G. Geis, "Tuberculosis Transmission in
a Large Urban Jail," 237 journal Of the American
Medical Association (1977), pp. 790-93.
l"W.R. Gove, M. Hughes and O.R. Galle, "Overcrowding in the Home: An Empirical Investigation of its
Possible Pathological Consequences," 44 American
Sociological Review 59, 74 (1979).
19Id.
2°D'Atri and Ostfeld (1975), supra.
2lCox, et al (1979), supra.
"42 U.S.C.1997.
23 452 U.S. 337, 343 n.13 (1981).
24Rhodes, 452 U.S. at 347.
25See ACA Standardsfor Adult Correctional
Institutions, 3rd Edition at Foreword vii-xv.
26GAO Report, Federal Prisons: Revised Design
Standards Could Save Expansion Funds, GGD 91-54
(March 1991).
Z7Bazelon (1982), supra.

THE NATIONAL PRISON PROJECT JOURNAL

i

II

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M

Modification of Consent Decrees
Goes to High Court

~

I
I

I

I

I

I

I

i
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I

1

I

,I

"W

ho will make a binding
agreement with a party
that is free to walk away
from an agreement whenever it begins
to pinch?"! This question now faces the
Supreme Court in Rufo v. Inmates of the
Suffolk CountyJail,2 a case with
potentially enormous consequences for
prison conditions litigation.
Many large and complex cases-such as
school desegregation, employment
discrimination, and prison conditions
cases-are resolved by entry of a consent
decree, a settlement agreement between
the parties that is approved by the court.
The advantage of settlement by consent
decree is that all parties are spared the
expense and uncertainty of a trial, and
the remedy is chosen by the parties,
rather than imposed by the court. If one
side later violates the consent decree, the
court can enforce the agreement by the
imposition of fines or other sanctions.
The question now before the Court in
Suffolk County is when such decrees can
be modified at the request of prison
officials, over the objection of the
prisoners. The case involves the Suffolk
County Jail in Boston, Massachusetts. In
1971, prisoners at the Suffolk County Jail
sued the Sheriff in federal court, alleging
that conditions at the jail violated their
constitutional rights. After a trial, the
district judge held that conditions did
indeed violate the rights of pretrial
detainees under the Fourteenth Amendment.3 Because of the numerous dangerous and unhealthy conditions, the judge
ordered that the jail be closed by June 30,
1976. One of the worst conditions, the
judge found, was the regular practice of
housing two prisoners in cells designed
for one, creating severe crowding and
presenting a serious threat of violence.
The 1976 deadline came and went, and
the jail remained open. No progress was
made on producing a plan for a replacement facility. Finally, in 1979, the parties
reached agreement on a plan for a new
jail, which was embodied in a consent
decree approved by the court on May 7,
1979. Acritical feature of this consent
decree was the provision that prisoners
would not be double-celled.
The pretrial detainee population in
Suffolk County increased steadily. Thus,
THE NATIONAL PRISON PROJECT JOURNAL

in 1985, the district court modified th6'
consent decree to permit the Sherif(A1o '
increase the numbers of prisoners ,~p.o
could be held in the new jail by any'~
amount, as long as single-celling was
maintained. The total male capacity of
the new jail is 419, an increase of 77 over
the old facility.
On July 17, 1989, as the new jail neared
completion, the Sheriff requested that
the district court allow modification of
the consent decree to permit the housing
of two prisoners to a cell in the new jail.
The Sheriff argued that changes in the
law since entry of the consent decree
made this change permissible, and
increases in the pretrial detainee
population made it necessary.
In opposition, lawyers for the prisoners
introduced evidence that multiple
occupancy would increase the risk of
violence between detainees (the cells are
70 square feet in area, with approximately 40 square feet of available
floorspace). In addition, because the cells
were designed for single occupancy, the
layout of the cells, the design of the cell
door (solid with a small window, rather
than barred) and the location of the
guard station would make it extremely
difficult to hear or see an altercation
between two prisoners in a cell until it
was too late. The prisoners' lawyers also
proposed an alternative plan to increase
the capacity of the jail without double
celling.
The district court denied the Sheriff's
motion for modification of the consent
decree. The judge found that the relevant
law had not changed since entry of the
decree, and that the population increase
was neither new nor unforeseen. In
addition, he found that the proposed
modification "would violate one of the
primary purposes of the decree."4 The
United States Court of Appeals for the
First Circuit affirmed.s The Sheriff
petitioned for review in the Supreme
Court; the petition was granted on
February 19, 1991.
The issue before the Supreme Court is
the standard to be applied to motions to
modify consent decrees affecting prisons,
jails, and other public institutions. More
than half a century ago, the Supreme
Court laid down a strict standard for

modification of consent decrees: the
party seeking modification had to show a
"grievous wrong evoked by new and
unforeseen conditions."6 In recent years,
some courts have applied a less demanding standard when government officials
seek modification of a consent decree
affecting a public institution? However,
it is clear that the Sheriff seeks an even
more liberal standard-if a proposed
modification would not result in
conditions that are actually unconstitutional, it wodid be allowed.
There are ~veral problems with this
approach. A'consent decree, like any
agreement, is useful only if it is understood that both sides will be bound by it.
If prison officials can easily be released
from their responsibilities under a
consent decree, prisoners' lawyers will no
longer settle cases by consent decree,
insisting instead on a full trial followed
by relief ordered by the court. Moreover,
since the constitutionality of a prison or
jail must be evaluated by examining
conditions in their totality,S each
modification motion, even if it deals
with only a single issue, will essentially
require a retrial of the entire case.
The National Prison Project, along with
the National ACLU and the Massachusetts
CLU, has filed an amicus brief in support
of the Suffolk County inmates, urging
the Court to reject the liberal modification standard advocated by the Sheriff. A
number of other amicus briefs have
been filed on both sides of the issue. The
stakes for prison litigation are high. If
the Court significantly weakens the
enforceability of consent decrees,
prisoners and their lawyers can expect
an avalanche of modification motions in
all cases previously settled by consent
decree. Victories thought to be won long
ago will suddenly be jeopardized, as cases
are thrown back to courts that are more
hostile to prisoners' rights with every
passing day.•

David C. Fathi is a staffattorney with the
National Prison Project.
lAlliance to End Repression v. City ofChicago, 742
F.2d 1007, 1020 (7th Cir.1984) (en bane).
'Nos. 90-954, 90-1004.
3Inmates ofSuffolk CountyJail v. Eisenstad~ 360
F.supp. 676 (D.Mass.1973).
4Inmates ofSuffolk CountyJail v. Kearney, 734
F.Supp. 561, 565 (D.Mass.1990).
5915 F.2d 1557 (1st Cir.1990) (unpublished opinion).
6United States v. Swif~ 286 u.s. 106, 119 (1932).
7See, e.g, New York State Association for Retarded
Children, Inc. v. Carey, 706 F.2d 956 (2d Cir.1983),
cert denied, 464 U.s. 915 (1983).
8Rhodes v. Chapman, 452 U.s. 337, 347 (1981); Hutto
v. Finney, 437 u.s. 678, 687 (1978).
SUMMER 1991

17

"Are You Trying
to Tell Me IHave
AIDS?"
In March 1991, the National Commission on AIDS released its repor~ ''HIV
Disease in Correctional Facilities."
Essential readingfor everyone both in
and out Ofprison, this report stresses the
importance ofallowingpeer AIDS
education programs.
Establishment ofone of these programs Often requires that the prisoner
educators overcome the resistance of
administrators. One such prisonerpeer
educator is Gilbert Serrano. Mr. Serrano
spent10years behind bars in New York
State. While in prison, Mr. Serrano
discovered that he was HIVpositive. He
laterfounded a comprehensive HIV/
AIDS information library at theprison
and authored an excellent educational
pamphle~ inmate to Inmate. "
Recently released on parole, Serrano
was the guest speaker at a program
sponsored by the AIDSProject Of the
National Prison Project. Printed below
are excerptsfrom his speech. (Copies Of
the National Commission on AIDS report
and inmate to Inmate" are available
from the NPP.)
don't consider myself a radical-I
really don't-even consider myself an
advocate. Maybe my Christian
upbringing makes this my mission. Seven
months after I graduated from college,
my mother died and they told me my
wife had cancer. I just fell apart and
started using drugs. That led to crime and
consequently a 10-20 year sentence in
prison. In prison for 9-1/2 years, I had
never been sick. Six months prior to
seeing the parole board, I came down
with an infection in my mouth. I went
down to the infirmary and you could
imagine, the nurse took one look, reared
back and said, "Oh my god, what's that?" I
was ushered in to see a physician's
assistant and he started mumbling-I
caught the words, "immune system." So I

I

18 SUMMER 1991

asked him, "Are you trying
to tell me I have AIDS?" He
said yes.
We often feel that this
will not touch us. When it
does, we are in a fog. This
happened to me. It was a
horrific experience. Here I
had survived 10 years of
prison, I had six months to
the parole board and now I
get told that I have the
virus. I've read a lot of
material through the ACLU, Gilbert Serrano was a guest speaker at ~ recent
·
I A . t'
program sponsored by the NPP AIDS Prolect.
t he Correct IOna SSOCla IOn
of New York, and the Osborne Associainvolved in this-because I was so
respected in the prison as a no-nonsense
tion, and I've learned that things are
individual-inmates would come to me
really bad all over. I wouldn't want to
and ask to talk. Our so-called HIV
say that New York has the worst
scenario. But the attitude overall is one
counselors, who are really just correcthat says we [the prison administrators]
tional officers who have become
are not ready to deal with this because
counselors, don't have the time, and you
know all the reasons and excuses. I
(1) the economic ramifications are too
thought about approaching the adminisgreat (that's usually at the top of the
tration about our need to develop an HIV
list); and (2) we will be opening up a
support group-not a gripe group-to
tremendous can of worms which people
are not ready to deal with. This is one of
come together to support one another but
also to become educated in what is
the reasons why I am really glad that
happening with us and how to help
you all came. Maybe we'll create some
ourselves. It was very successful, so much
motivation to say this is not just going to
so that the administration began to put
go away. Individuals like yourselves
obstacles in the way. I wound up with so
have to hang in there tenaciously,
much material that I developed the
otherwise it [interest] will fade. We can't
get any further back on the burner. Right formal HIV/ AIDS resource library for
the Department of Correctional Services.
now we're in the oven.
This grew from a small seed and before
The strategies that we develop must be
long, I was giving talks on sex, drugs and
geared toward the population we are
AIDS to the pre-release center.
actually trying to help. It took the
Aprisoner who has been diagnosed or
governor of New York 10 years to give a
pardon to one individual with AIDS.
has some infection will have to wait
until the infection gets so bad that even
Every day inmates are dying. What we
a blind person can see that something's
need in prison is immediate outreach
wrong. Do you really think they're going
intervention. We need community
to invest money in intervention and
organizations to come in and provide the
prevention? There is no continuity of
services that the system won't. We need
comprehensive AIDS education programs
care and it's getting worse.
Without the people here in this room
in prison. But it takes a lot of guts to go
and others around the country, people on
before an administration and introduce
the inside would have no support. Next
something that will change the basic
fabric of that prison. You are not going to time you are ready to speak up, please
check with me first and I might be able
change one atom of this atmosphere
to provide you with some insights you
without outside support.
After the initial shock of being told
have overlooked. We have no voice in
that I was HIV positive, I said hey, I'm
prison. You are our voice. You people are
not giving up. I've always been a fighter.
so very important to us. •
My motto became: get busy. The first
thing was to find out what was trying to
Judy Greenspan is the AIDS information
kill me. Once the word got out that I was
coordinatorfor the NPP.
THE NATIONAL PRISON PROJECT JOURNAL

ublications
1990 AIDS in Prison

The National Prison
Project Status Report;1ists
by state those presentlY';!Jnder
court order, or those which
have pending litigati04~ither
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.
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
ProjectJOURNAL, $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.

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

Bibliography lists resources
on AIDS in prison that are
available from the National
Prison Project and other
¥>urces, including corrections
..Jolicies on AIDS, educational
'materials, medical and legal
articles, and recent AIDS
studies. $5 prepaid from NPP.
f.

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 ~panisb. Sample
copies free. Bulk orders: 100
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.
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.

(order
from
ACLU)

Fill out and send with check payable to:

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THE NATIONAL PRISON PROJECT JOURNAL

_

SUMMER 1991

19

_

~ighligh_ts_·

he following are major developments
in the Prison Project's litigation
program since March 1, 1991. Further
details of any of the listed cases may be
obtained by writing the Project.

T

Bates v. Lynn seeks to ensure adequate
legal access for death row prisoners in
Louisiana. In April the court approved 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.
Brown v. McKernan challenges
conditions in the special management units
of the Maine State Prison. In March, parties
reached an agreement ending doublecelling in segregation and protective
custody units and providing for enhanced
program opportunities in those units where
virtually none had existed before.
Duran v. King is a statewide New
Mexico prison conditions case. After more
than a year of intensive negotiations, the
parties agreed in June to modify the
consent decree entered into in 1980.
Because the state is near substantial
compliance with the decree, it has been
agreed that the decree will be vacated
after a finding by the Special Master of

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

20 SUMMER 1991

substantial compliance and a period of
.' This agreement is interim in nature though
further reporting. In exchange, the state':" parties expect some form of it will
has agreed to a permanent, non-modifiable. . eventually be reduced to a consent decree.
set of population controls including a;.,
Lecc1ier v. Bayh challenges conditions
prohibition against double-celling.'
and practices at th\ Indiana Reception and
Diagnostic Center",.;After conducting
Hamilton v. Morial challenges condidiscovery, parties-reached an agreement in
tions at the Orleans Parish Prison, the
May to correct the conditions under
municipal jail for the City of New Orleans.
challenge, including crowding, inadequate
In lieu of a trial scheduled for the week of
services and programs, and environmental
May 1, defendants entered a stipulation in
hazards. The agreement is now awaiting
effect confessing their liability on the
court approval.
mental health care issues. The court has
established a timetable for defendants to
Sheriff Robert C. Rufo v. Inmates of
develop a remedial plan to cure the
Suffolk CountyJail-See page 17.
problems we identified.
Hudson v. McMillian On April 29, 1991,
the United States Supreme Court appointed
the National Prison Project to serve as
counsel in this case filed pro se by Louisiana
prisoner Keith Hudson. Hudson, while in
shackles, was beaten by two prison guards
while a supervisor looked on. The district
court awarded Hudson damages. The Fifth
Circuit overturned the decision because the
case did not satisfy an element of a fourprong test for Eighth Amendment claims
which requires there be significant injury.
For further details, see story on page 1.
John A. v. Castle challenges conditions
at two Delaware juvenile facilities. Parties
reached agreement on new policies for
control, grievance and disciplinary
procedures as well as a plan for monitoring
the implementation of these procedures.

U.S. v. Michigan/Knop v.Johnson is a
statewide Michigan prison conditions case.
On May 29, following intensive negotiations, the parties agreed on a series of
stipulations to address long-standing
deficiencies in mental health services.
Following the entry of the stipulation, the
court returned $100,000 in accumulated
contempt fines to the defendants to be
used to address prisoners' mental health
needs. The court also indicated that it will
consider the disposition of the remaining
apprOXimately $750,000 in contempt fines
in July when it has more information on
Michigan's progress in carrying out the
stipulation.
Wilson v. Seiter-See page 6 for
discussion.

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