,.,~/

A PROJEG OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 7, NO.2, SPRING 1992 • ISSN 0748-2655
y~~

,

High Court Hands Down Prisoners'Rights fittory
in Beating Case
held that the rights of Keith Hudson, a
prisoner at the Louisiana State Penitentiary (Angola), had been violated by
two correctional sergeants and a
lieutenant.
The ruling in Hudson v. McMillian, a
case argued by lawyers from the
National Prison Project, is an important
development in Eighth Amendment law
and the first clear-cut prisoners' rights
victory in the Supreme Court in some
time. In addition, the decision gives an
early indication of the extremely

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II
I

conservative views of Justice Clarence
Thomas on the role of the federal
courts. In a dissenting opinion, joined
only by Justice Antonin Scalia, Justice
Thomas argued that the Eighth Amendment was being extended "beyond all
reasonable limits" and complained
bitterly about what he characterized as
"the pervasive view that the federal
Constitution must address all ills in 0!1r
society." In essence, Justice Thomas
argued for a return to the 19th century
"hands off doctrine" under which
prisoners were regarded as "having no
more rights than slaves."l
The case originated at Angola in 1983.
The prisoner, Keith Hudson, was housed
in Camp J, a maximum security unit
notorious for problems of prisoner
abuse by staff. He had an exchange of
words with an officer in the middle of
the night. He was then issued two
disciplinary reports and told he was
going to solitary confinement. Two
officers, Marvin Woods and Jack
McMillian, then put him in leg irons,
waist chains and handcuffs and led
him out of his cell. They took him
around a corner, out of sight of other
prisoners, and while Sgt. Woods held

him. from behind, Sgt. McMillian
repeatedly punched him in the face.
Woods also kicked him. Woods and
McMillian are both over six feet tall
and each weighs more than 200
pounds, while Hudson is slightly built.
Asupervisor, Lt. Arthur Mezo stood by,
watched the beating and said, "Don't be
having too much fun, boys."
Hudson suffered bruises and swelling
of his face, mouth and lip. The blows
also loosened his teeth and cracked his
partial dental plate.
Without a lawyer, Hudson brought a
suit for damages against the three
officers under the federal civil rights
act, 42 U.S.C. §1983, and conducted the
trial himself in federal district court in
Louisiana. He testified, called witnesses, and cross-examined the defense
witnesses. The district court found
that the officers had violated his
Eighth Amendment right to be free
from cruel and unusual punishment
and awarded him $800 in damages.
The prison officials appealed and the
federal court of appeals agreed that the
officers' conduct was clearly excessive
and occasioned unnecessary and
wanton infliction of pain. However,
they reversed the trial court because
they concluded that Hudson did not
sustain "significant injury."2
Under the reasoning of the court of
appeals, and the argument of the state
of Louisiana, there must be serious,
measurable and lasting physical
injuries to constitute a violation of the
Constitution. The infliction of pain
and suffering and, by implication,
torture that left no marks, were not
enough.
Still proceeding without a lawyer,
Hudson drafted and filed a petition in
the Supreme Court, asking the Court to
review the court of appeals decision.
The Court directed prison officials to
file a response-and, on April 15, 1991,
the Supreme Court granted certiorari
to determine whether the "significant
injury" requirement applied by the
court of appeals accords with the
Constitution's dictate that cruel and
unusual punishment shall not be
inflicted. Two weeks later, the Court
appointed this author to serve as
counsel for Hudson in the Supreme
Court.
Amici

NPP staff were able to interest an
important group of organizations in
filing amicus briefs supporting the
prisoner's claim. After a series of
2 SPRING 1992

meetings with Department of Justice
officials, the Solicitor General of the
United States, joined by the Assistant
Attorneys General in charge of the
Criminal and Civil Rights Divisions,
filed a brief on behalf of the United
States which argued for a reversal of
the court of appeals decision. They

pointed out that the court of appeals'
standard might interfere with their
authority to criminally prosecute
prison guards for this kind of conduct.
They also stated that the "United States
has a general interest in ensuring that
the law regarding violent conduct by
law enforcement officials adequately
protects the rights of citizens...."
Americans for Effective Law Enforcement filed a brief in support of the
prisoner's position. They argued that
the court of appeals decision, if
affirmed, would encourage unprofessional conduct on the part of police
and correctional officers. The conduct
of the officers in this case was in
violation of the use of force standards
of the American Correctional Association. Two regional organizations,
Prisoners' Legal Services of New York
and D.C. Prisoners' Legal Services
Project, filed briefs arguing for reversal
of the court of appeals' "significant
injury" standard. Both briefs provided
specific details of cases in their
jurisdictions in which prisoners were
brutally abused and beaten by prison
officers but suffered only minor
physical injuries.
Finally, Human Rights Watch, the
respected international organization,
submitted a brief which discussed the
application of various international
human rights treaties and standards.
They informed the court, for example,
that the treatment of Hudson by the
correctional officers was a violation of
the United Nations Convention Against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. 3
Only one amicus brief was filed in
support of the position of the officers.
The States of Texas, Hawaii, Nevada,
Wyoming and Florida made the usual
litany of "states' rights" arguments.
Mischaracterizing the facts and
ignoring precedent and the fundamen-

tal role of the federal court in preserving the constitutional rights of individuals, the five states argued that
they could themselves adequately
protect the rights of prisoners.
" The Court's holding

'-1

Speaking for a majority of the Court,
, Justice Sandra Day O'Connor said:
[Wje hold that whenever prison
officials stand accused of using
excessive physical force in
violation of the Cruel and
Unusual Pun"thments Clause, the
core jUdiciap,;fnquiry is...whether
force was applied in a good-faith
effort to maintain or restore
discipline, or maliciously and
sadistically to cause harm.

When prison officials maliciously and sadistically use force
to cause harm, contemporary
standards of decency always are
violated. This is true whether or
not significant injury is evident.
Otherwise, the Eighth Amendment would permit any physical
punishment no matter how

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 Natianal Prison Project is a tox-exempt foundotionfunded project of the ACLU Foundotion which seeks to
strengthen and protect the rights of odult and juvenile
offenders; to improve overall conditions in correctional

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

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

The NPPJOURNAL is 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

diabolic or inhuman, inflicting
less than some arbitrary quantity
of injury. Such a result would
have been as unacceptable to the
drafters of the Eighth Amendment as it is today.
The dissenting opinion by Justice
Thomas suggests that the Eighth Amendment should apply only to measure
whether a judge's sentence is unduly
severe. This sort of argument is a
favorite of conservatives, contending
that the Constitution is not a living
document, and that it means no more
than it meant when the Bill of Rights
was enacted two centuries ago. That
argument in this case is historically
inaccurate. The Eighth Amendment
language barring cruel and unusual
punishment comes directly from the
English Declaration of Rights, and it is
clear that the central meaning of that
clause was to bar punishment unauthorized by law, a category that surely
includes this beating of a prisoner.
More important, given that history does
not compel a more limited reading of the
Eighth Amendment, the real issue is how
to interpret the Constitution today. Is

the unauthorized and malicious beating
of a prisoner "cruel and unusual"? It is
certainly cruel, and we have a right to
demand that it be unusual. If one
believes that the central purpose of the
Bill of Rights is to prevent the abuse of
our people through the misuse of
;~,
governmental authority, the Constitu.;~;

tion must protect us all, even those
individuals some consider undeserving.
It is the Bill of Rights, after all, that
ultimately protects each of us from the
government. How can we protest torture
and other human rights abuses abroad,
yet argue that the Constitution does not
protect our own citizens?
The majority decision sends a clear and
important message to prison officials. It
tells them that they can be held liable
for money damages if they abuse their
power by using unnecessary force and

Attorney General Barr Holds
"Corrections Summit" to Promote
Imprisonment

"T

he choice is clear," said
Attorney General of the
United States William P. Barr
last January. "More prison space or
more crime."
In his speech in January to the
California District Attorneys' Association, Barr made some calculations and
came to the surprising conclusion that,
with the federal government's help,
states can allow their prisons to
become as overcrowded as the federal
system (165% over design capacity)
without violating the Constitution.
To promote this theory, he held a
"corrections summit" conference in
Washington, D.C. on April 26-28, and
invited state and local corrections
officials. The purpose of the meeting
was clear: how to help states find
ways to pack more offenders into jails
and prisons.
After National Prison Project
staffmembers were told by DepartTHE NATIONAL PRISON PROJECT JOURNAL

ment of Justice officials that we
would not be allowed to attend the
summit, we decided to help sponsor an
"alternative press conference," to be
held on the site of the summit. The
purpose of our press briefing was to
challenge Barr's basic premise that
more incarceration equals less crime,
his failure to see the health and safety
consequences of overcrowded facilities
for both staff and prisoners, and
finally, to challenge his failure to
recognize racial and class disparities in
sentencing practices.
The "alternative press conference"
was sponsored jointly by the National
Black Police Association, the National
Prison Project, the National Conference
of Black Lawyers, the Sentencing
Project, the Southern Center for
Human Rights, the Florida Justice
Institute, and the National Center on
Institutions and Alternatives. Representatives from several of those

administer beatings to prisoners. The
wanton brutalization of prisoners by
guards will not be tolerated by the
courts.
It took courage for Keith Hudson to
seek a remedy in the courts. In 1987, the
National Prison Project published a
special issue of theJOURNAL4 in celebration of the 15th anniversary of the
Project's founding. At that time I wrote
that lawsuits would not have been
possible without the prisoners who had
been willing \0 step out into the light of
public exposl,lre in order to improve the
lives of thelrWfellow prisoners. I named
about 40 ni~n and women whom we
wished to recognize for the courage that
those actions took. I add Keith Hudson's
name to that list. •
Alvin j. Bronstein is the executive
director of the National Prison Project
He argued the Hudson case before the u.s.
Supreme Court
'Ruffin v. Commonwealth, 62 VA. 790, 796 (1871).
'McMillian v. Hudson, 929 F.2d 1014 (5th Cir.1990).
3The United States signed the Convention in 1988
and it was ratified by the Senate in October 1990.
4No. 13, Fall, 1987.
•

groups spoke, as well as two corrections commissioners: Chase Riveland of
Washington State and Robert Watson
of Delaware. Corrections director
Orville Pung of Minnesota had also
been scheduled to speak but was
unable to. Just before the press
conference New York State Legislator
Dan Feldman approached and asked if
he could also speak in support of our
message.
The press conference was well
attended by summit conference
attendees, several of whom expressed
their frustration over the lack of
debate and open discussion at the
summit.
The lack of debate did not come as a
surprise to NPPJOURNAL editor Jan
Elvin, who had been told by DOJ public
affairs spokesperson Paul McNulty that
"the corrections summit is not a debate.
It is not a conference on 'whether.' It is:
'how to.'''
We need national and local leaders to
speak out against this self-destructive
course of action. At our press conference, we saw and heard from some
corrections officials who obviously did
not agree with Attorney General Barr.
How many more do not agree? •
SPRING 1992 3

Reactivated New
OrleansJail Case
Uncovers Same
Old Problems,
Divisions
he Orleans Parish Prison (OPP)
was built in 1929 and designed to
house 400 to 450 inmates. By 1969
the population had approximately
doubled; this was the catalyst for a
successful lawsuit challenging the
overcrowded and deplorable conditions
as violative of the Eighth Amendment.
(Hamilton v. Schiro, 338 F.Supp. 1016
(E.D.La.1970)). Today OPP refers to a
sprawling complex of buildings and
make-shift housing areas-including "tent
city" and several converted warehouseswhere between 4,500 and 5,000 prisoners
are confined under dangerously crowded
conditions. The gains achieved by the
original lawsuit have been completely
offset by the unprecedented expansion
that occurred in later years. In 1989,
new counsel for plaintiffs reactivated
the case, and, despite a string of partial
victories, it remains to be seen whether
the new litigation will result in any
meaningful changes in the way business
is done at the prison.

T

Background and Procedural History!
In October of 1969 prison inmates filed
a class action lawsuit in an effort to
improve conditions in the Orleans Parish
Prison. Hamilton v. Schiro, was filed in
the United States District Court for the
Eastern District of Louisiana. Trial on
the merits of tIte lawsuit was held in
April 1970, pursuant to the plaintiffs'
motion for preliminary and permanent
injunctions. In June 1970, United States
District Judge Herbert W. Christenberry
recognized the validity of the inmate
claims when he found that "the conditions oLconfinement in Orleans Parish
Prison so shock the conscience as a
matter of elemental decency and are so
much more cruel than is necessary to
achieve a legitimate penal aim that such
confinement constitutes cruel and
unusual punishment in violation of the
Eighth and Fourteenth Amendments of
the United States Constitution...."
Hamilton v. Schiro, 338 F.Supp. 1016, 1019
4

SPRING 1992

(E.D.La.1970). He ordered the mayor and
remained essentially the same as they
city council to correct the unconstituhad been when the court order was filed.
tional conditions without delay.
After almost a year of inaction by the
The litigation related principally to the
court, the plaintiffs filed three motions,
physical plant and prison personnel.
beginning in late 1971, which docuPhysical deterioration, severe overcrowdmented their dissatisfaction with
ing in the jail, and lack of qualified,
;1' compliance progress.
trained supervisory personnel
were identified as the key
causes of the problems. The
prison, built and designed in
1929 to hold between 400 and
450 inmates, contained an
average daily population
estimated at the time of the
trial to be between 800 and
900 inmates. Conditions were
abominable. Plumbing was
badly corroded and unsanitary. living areas were dark
and dingy. Mattresses,
although filthy, were rarely
cleaned. Overcrowding
meant many inmates sleeping
on mattresses on cell floors
and in corridors. Cells were
often damp and inmates were
subjected to extremes of
seasonal temperatures.
Rodents, roaches, and other
vermin infested the prison.
Facilities for bathing were
inadequate. Prisoners were
allowed outdoors to exercise
only once every 20 or 30
days. Conditions violated
state and local fire and
health codes, posing a serious
danger to the health and
safety of inmates and staff.
Overcrowding, the lack of a
Large army tents house over 300 municipal detainees in
the "tent city" section of the New Orleans Parish Prison.
classification system, inadequate supervision and easy
inmate access to materials for fashioning
The first motion claimed that the
weapons created a situation in which
defendants had failed to make a reasonphysical and sexual assaults were
able effort to correct the conditions in
frequent and the threat of attack was
the prison, had failed to meet promises
constant. Medical care for inmates was
contained in progress reports, and that
inadequate and mental health care did
the conditions had worsened since the
not exist. (Hamilton v. Schiro at 1016litigation began. The second motion
1018).
alleged that conditions in the prison had
Although the court ordered the
deteriorated to the point that it was
defendants to correct the unconstituuninhabitable and that the original 1970
tional conditions that it found, it did not
order was inadequate. That motion
provide a detailed remedial plan.
requested a hearing to consider alternaInstead, the court ordered the defendant
tives, including permanently closing the
mayor and city council to file a progress
jail. The third motion requested appointreport within 30 days. The city filed a
ment of a special master with expertise
progress report, describing its compliance
in prison reform and rehabilitation to
efforts and a strategy for funding
provide a comprehensive plan for relief
construction of a new prison. Lawyers
from emergency conditions existing at
for the prisoners disputed the allegations
the OPP.
in the report and filed a response
The court acted only on the motion to
claiming that conditions in the prison
appoint a special master. Among other
THE NATIONAL PRISON PROJEG JOURNAL

responsibilities, the court required the
special master to "...devise and submit
to...[the]...court a detailed workable plan
for the correction of the conditions
found by him to exist at Orleans Parish
Prison." (Order, October 14, 1971).
The special master filed three separate

(Hamilton v. Landrieu, supra, at 550).
Failure to implement the order frustrated
all serious attempts to improve conditions at the prison. This was particularly
true regarding the need for an independent department of detention and
corrections.
1\,
The division of author~
ity and responsibility fqr
the prison was and_
continues to be the la,:rgest
single factor in perR~iuat­
ing the unconstitutional
conditions in the prison.
Acorrections expert, who
studied the prison at the
request of the special
master, filed a report
analyzing the local
governmental structure
and its effect upon the
prison conditions. The
report, referred to
hereafter as the "Mattick
Report," found:
...[Tjhe basic problem of
Orleans Parish Prison
is one ofpolitics and
money; the fragmentation ofpower over the
prison and the division
~ of control between the
8 Criminal Sheriff and
a::
~ the City of New
~ Orleans....The Criminal
~ Sheriff is elected by the
c' Parish and has
ju administrative control
..g of the prison; he
] operates it with his
employees....The
municipal administration is elected by the City ofNew
Orleans and has effective financial
control of the prison; they supply
the money....The result· the
Criminal Sheriff blames the City
for not giving him enough money
to operate and maintain a decent
prison; the City refuses to invest
public funds in a prison administered so poorly by the Criminal
Sheriff; and both are right...The
inmates and the employees of the
prison suffer the direct effects of
this political infighting over
money and contr04' and the entire
jurisdiction and electorate suffers
the indirect effects of a malfunctioning, maladjusting, and
maladministeredpenalfacility.
(Mattick Report, pp. 4-5)2
Consistent with the findings of the
Mattick Report, the special master
,<

(])

reports within the following year, the
last of which was adopted by the court
as its final remedial decree. (Hamilton v.
Landrieu, 351 F.Supp. 549 (E.D.La. 1972)).
The court's remedial order covered all
phases of prison operations including
medical services, limitations on inmate
population size, security, inmate discipline, recreation, administrative and
personnel matters, admission and
orientation procedures, rehabilitation
systems, and environmental health
conditions. In addition, the court called
for two extraordinary measures that
went to the very core of maintaining and
managing the Orleans Parish Prison.
The first extraordinary measure called
for the creation of a city department of
detention and corrections. The second
called for the closure of the main prison
for all purposes except as an admittance
and orientation unit by March 1, 1975.
THE NATIONAL PRISON PROJECT JOURNAL

recommended creation of a separate
department of detention and correction
within the city government. (Report of
Special Master, 7/26/72). Today, the
mayor and sheriff are still waging a war
of words over who is responsible for the
sordid conditions at the prison. The State
of Louisiana has joined in the finger
pointing by virtue of the over 2,000
convicted "state-ready" prisoners who
remain confined at OPP rather than
being transferred to the state prison
system.
'\i
Following ,the entry of the final decree,
formallitig~non related principally to
monitoringimd enforcing compliance.
The court assigned the special master
additional duties as a compliance
monitor, responsible for reporting the
defendants' progress in implementing the
ordered relief. Pursuant to his additional
duties, the master filed a number of
compliance reports, the last of which was
in 1980. The reports tracked the sheriff's
progress or lack of progress in implementing the requirements of the
decree. The most significant gains
were made in the areas of medical care
and prison security. While progress ,
was made in other areas, such as
physical plant renovations and opportunities for recreation and rehabilitation, the prison's failure to meet the
court-imposed population limitations
made compliance impossible. Indeed,
by 1976, the focus of the entire
litigation shifted to population control.
For reasons that are not clear from the
record, the special master filed his
final report in 1980.
The plaintiffs' efforts to monitor and
enforce compliance with the final
decree continued through a series of
largely unsuccessful motions for
contempt or supplemental relief
between 1974 and 1982. Despite the
noncompliance, the court never held
the defendants in contempt. But it did
reduce or provide alternative housing
for the rising population by ordering
the City to make more buildings
available to the sheriff and by ordering
the transfer of "state-ready" prisoners.
At the close of 1976, the growing
backlog of state-ready prisoners at OPP
forced the court to order state officials
to accept convicted state prisoners.
(Order, 10/8/76). Since most state
prisons were under court-imposed
population limits themselves (most
notably Louisiana State Penitentiary at
Angola),3 this created tension between
the United States District Court in
(cont'd on page 14)
SPRING 1992 5

Wi

A PROJECT OF THE AMERICAN CIVIL LIBERTIES ~NION FOUNDATION, INC.
VOL. 7, NO.2, SPRING 1992· ISSN 0748-265&

Highlights of Most
Important Cases
USE OF FORCE
Prisoner advocates breathed a sigh of relief
at the Supreme Court's use of force decision,
Hudson v. McMillian, 60 U.S.Law Week 4151
(Feb. 25, 1992). The Court rejected the
argument that misuse of force only violates
the Eighth Amendment if prison staff
inflict "significant injury" on the prisoner.
Justice O'Connor declared for the majority,
"When prison officials maliciously and
sadistically use force to cause harm,
contemporary standards of decency are
always violated." Only if injuries are "de
minimis' will they escape Eighth Amendment scrutiny.
Hudson is an unusual decision for the
present Supreme Court, not only because the
prisoner won, but also because its central
holding represents an uncharacteristically
bold and unqualified statement of principle
for this Court. But it should not be
forgotten that the virtues of Hudson are
only relative virtues-Le., relative to the
diminished expectations of prisoner
advocates and civil libertarians regarding
the Supreme Court. Hudson's holding
concerning injUl;.y merely ratifies the status
quo in most of the lower federal courts, and
the Court begins its analysis by cursorily
resolving against prisoners another central
question concerning the Eighth Amendment
use of force standard.

The Injury Question in the Lower
Courts
Hudsotis holding that the injury inflicted
is "one factor" in determining whether force
was used unconstitutionally adopts the
settled approach of most lower courts. As
one appeals court put it, "the extent of
injury is but one of the factors to be
considered. Even if the injuries suffered
'were not permanent or severe,' a plaintiff
may still recover if 'the force used was
6 SPRING 1992

unreasonable and excessive.''' Corselli v.
Coughlin, 842 F.2d 23, 26 (2d Cir. 1988) .
(citation omitted) (jury question was
presented where inmate was allegedly
knocked unconscious and sustained cuts,
swelling, dizziness and blurred vision);
accord, Felix v. McCarthy, 939 F.2d 699, 702
(9th Cir. 1991) (minor injuries are actionable when force is completely unjustified);
Campbell v. Grammer, 889 F.2d 797, 802
(8th Cir. 1989) (completely unjustified
spraying with a fire hose was actionable
even though injuries were minor); see also
Williams v. Boles, 841 F.2d 181, 183 (7th Cir.
1988) (rejecting "severe injury" requirement
under the Eighth Amendment). A number
of courts have found constitutional claims
or violations in the absence of any injury at
all, usually in cases involving credible
threats with a deadly weapon or other
elements of psychological torture. See, e.g.,
Parrish v.Johnson, 800 F.2d 600, 605 (6th
Cir. 1986) (verbal threats and waving of
knife violated the Eighth Amendment;
damages awarded); Burton v. Livingston, 791
F.2d 97, 100 (8th Cir. 1986) (death threat
made at gunpoint by a prison guard was "a
wanton act of cruelty which ... was brutal
despite the fact that it resulted in no
measurable physical injury"; Due Process
Clause cited); Oses v. Fair, 739 F.Supp. 707,
709 (D.Mass. 1990) (Eighth Amendment was
violated when an officer struck inmate
with a gun, stuck gun barrel into his
mouth, and made him kiss the officer's
wife's shoes); Parker v. Asher, 701 F.Supp.
192,194-95 (D.Nev. 1988) (threatening a
prisoner with a taser gun solely to inflict
fear stated an Eighth Amendment claim);
Douglas v. Marino, 684 F.Supp. 395, 398
(D.N.]. 1988) (similar to Parrish). As one
court sardonically observed, "Many thingsbeating with a rubber truncheon, water
torture, electric shock, incessant noise,
reruns of 'Space 1999'-may cause agony as
they occur yet leave no enduring injury."
Williams v. Boles, 841 F.2d at 183. Hudson
should be viewed as ratifying this body of
lower court law rather than breaking new
ground.

The "Malicious ilnd Sadistic" Standard
Hudsotis othert,Significant holding was its
extension of a "~ubjective component" of
malicious and sadistic intent to all Eighth
Amendment use of force cases. This
standard was first asserted in the context
of a damage claim arising from prison
officials' actions during a riot. Whitley v.
Albers, 475 U.S. 312, 320-21 (1986).
This holding resolves against prisoners a
question that had divided the lower federal
courts several ways. Some courts had
applied Whitley to all prison use of force
cases. Miller v. Leathers, 913 F.2d 1085, 1087
(4th Cir. 1990) (en bane), cert. denied, 111
S.Ct. 1018 (1991); Haynes v. Marshall, 887
F.2d 700, 703 (6th Cir. 1989); Brown v.
Smith, 813 F.2d 1187, 1188 (11th Cir.),
rehearing denied, 818 F.2d 871 (11th Cir.
1987). Others had limited it to cases
involVing the actual existence of a
substantial "prison disturbance" at the time
force was used. Al-jundi v. Mancusi, 926
F.2d 235, 240 (2d Cir.) ("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"), cert. denied,
112 S.Ct. 182 (1991); Unwin v. Campbell, 863
F.2d 124, 130 (1st Cir. 1988). Others had
defined "prison disturbance" broadly to
include almost any defiance of authority,
but had still insisted that there be some
actual security threat at the time force was
used. Compare Stenzel v. Ellis, 916 F.2d 423,
427 (8th Cir. 1990) (refusal to "show skin"
while sleeping and to uncover a surveillance camera constituted a disturbance
invoking Whitley); Cowans v. Wyrick, 862
F.2d 697, 699 (8th Cir. 1988) (inmate's
refusal to close the food slot in his cell door
was a disturbance) with Bolin v. Black, 875
F.2d 1343, 1350 (8th Cir. 1989) (malice need
not be shown in case involVing retaliatory
beatings after a disturbance had been
suppressed), cert. denied, 110 S.Ct. 542 (1990);
Wyatt v. Delaney, 818 F.2d 21, 23 (8th Cir.
1987) (malice need not be alleged if there
was no security need for force).
The Hudson Court's application of the
Whitley malice standard to all force cases
THE NATIONAL PRISON PROJECT JOURNAL

represents a serious lapse of logic. The
Court stated:
Many of the concerns underlying our
holding in Whitley arise whenever
guards use force to keep order.
Whether the prison disturbance is a
riot or a lesser disruption, corrections
officers must balance the need 'to
maintain or restore discipline' through
force against the risk of injury to
inmates. Both situations may require
prison officials to act quickly and
decisively.... In recognition of these
similarities, we hold that whenever
prison officials stand accused of using
excessive force, the core judicial
inquiry is...whetherforce was applied
in a goodjaith effort to maintain or
restore discipline, or maliciously and
sadistically to cause harm.

60 U.S.Law Week at 4153 (emphasis
supplied).
The lapse, of course, is the fact that in
some force cases, there is no need to
maintain or restore discipline and no other
penological interest to be weighed. Hudson
itself is such a case. Mr. Hudson, after an
argument with an officer, was handcuffed
and shackled and taken to the "lockdown"
area; on the way, officers beat him while
he was still restrained. The trial court
found "no need to use any force at all."
Plainly, the officers were not "us[ing] force
to keep order"; the shackled and unresisting
prisoner presented no risk to prison order.
On these facts, there was no need to
balance the risk of injury against any
penological interest, and the extension of
Whitley v. Albers reasoning to this case
makes little sense, however it might be
justified in a different case. The need to
give prison officials wide latitude in
security-related decisions simply has no
logical bearing on cases like Hudson that
involve completely gratuitous beatings.
The Court's glossing over of this essential
point is particularly surprisirig beca~se it
was done by Justice O'Connor, who also
authored the Whitley majority opinion, and
who has previously insisted on a factspecific approach to the application of the
Whitley standard. In Stubbs v. Dudley, 849
F.2d 82, 86 (2d Cir. 1988), cert. denied, 489
u.s. 1034 (1989), damages were awarded to a
prisoner who was assaulted by an angry
mob of other inmates after prison officials
closed a door in his face rather than let
him into an administrative office where he
might have been safe. The jury was
instructed on the "deliberate indifference"
standard generally used in inmate assault
cases. Justice O'Connor, dissenting from the
denial of certiorari, argued that the
THE NATIONAL PRISON PROJEG JOURNAL

Whitley malice standard should have been
applied because the record revealed competing security considerations underlying the
defendants' actions, even though the case was
not about use of force. In view of Justice
O'Connor's close attention to the facts of
Stubbs, Hudsorts broad sweep of all use of
force cases-including those involving
gratuitous abuse-seems anomalous at best+

~g:~:~~~~Ig~~:J~~GMENTS/

J;;;

The Supreme Court gave cause for another
sigh of relief, relatively speaking, in Rufo v.
Inmates of the Suffolk CountyJail, 60 U.S.
Law Week 4100 Oanuary 15, 1992). In Rufo,
the Court addressed the legal standard
governing modification of injunctive decrees
in "institutional reform litigation," and left
things pretty much as they were.
Rufo involved one of the longest-running
jail conditions cases, filed in 1971, decided on
the merits in 1973 and nominally settled as to
remedy in 1979 and again in 1985. The
question before the Court was whether the
federal district court had applied the proper
standard in denying prison officials' request
to modify the 1985 consent decree to permit
double ceiling in a jail designed for single
occupancy. The district court had held that
jail officials must show a "grievous wrong
evoked by new and unforeseen conditions" in
order to justify modification, citing United
States v. Swift & Co., 286 U.S. 106 (1932).
The Supreme Court held that the Swift
"grievous wrong" standard is simply inapplicable to institutional reform litigation. "The
experience of the district and circuit courts in
implementing and modifying such decrees has
demonstrated that a flexible approach is
often essential to achieving the goals of
reform litigation." 60 U.S. Law Week at 4103.
Therefore, the Court held, "a party seeking
modification of a consent decree must
establish that a significant change in facts or
law warrants revision of the decree and that
the proposed modification is suitably tailored
to the changed circumstances." Id. at 4107.
The Court's decision is consistent with those
of the majority of federal appeals courts; the
"grievous loss" standard had largely been
abandoned in federal court institutional
reform litigation. Rufds major significance is
its conclusive rejection of the view advanced
by jail officials, that the district court must in
effect redetermine the underlying constitutional questions whenever it is presented
with a motion to modify. "To hold that a
clarification in the law automatically opens
the door for relitigation of the merits of
every affected consent decree would
undermine the finality of such agreements
and could serve as a disincentive to the
negotiation of settlements in institutional

reform litigation." Whether modification is
sought based on changed facts or changed
law, "[a] proposed modification should not
strive to rewrite a consent decree so that it
conforms to the constitutional floor." The
Court reaffirmed that parties may settle a
case not only for "more than the Constitution
itself requires...but also [for] more than what a
court would have ordered absent the
settlement." Even if modification is warranted, "the focus should be on whether the
proposed modification is tailored to resolve
the problems c¥ated by the change in
circumstancest' The rules are the same
whether theid'dgment is arrived at by
consent or after litigation. Rufo reaffirmed
that consent judgments, while "in some
respects contractual in nature," are also
"subject to the rules generally applicable to
other judgments and decrees."
Rufds significance was enhanced by its
timing. Only two days before the decision
was issued, Attorney General William Barr,
addressing the California District Attorneys'
Association, denounced consent decrees that
"were negotiated at a time when some lower
courts thought the Eighth Amendment
required more ambitious improvements by the
states," and announced a Department of
Justice policy of considering support for
modification of prison consent decrees "to the
extent necessary to remove restraints on the
state not required by the Constitution." But
Rufds holdings that "a clarification in the
law [does not] automatically open[] the door
for relitigation of the merits of every affected
consent decree" and that "[a] proposed
modification should not strive to rewrite a
consent decree so that it conforms to the
constitutional floor" seem squarely to reject
the Attorney General's view of these issues.
The Court offered further gUidance in the
application of the flexible modification
standard.
With respect to changes in facts, it rejected
the view urged by the plaintiffs that only
"unforeseen and unforeseeable" changes can
justify modification. However, "events that
were actually anticipated" at the time of the
decree should ordinarily not support
modification. The Court distingUished
between consent decree terms "that arguably
relate[] to the vindication of a constitutional
right" and those amounting to "extraneous
details ...unrelated to remedying the underlying constitutional violation"; modification of
the latter kind of term requires only a
"reasonable basis." The moving party bears
the burden of showing that modification is
justified, and no deference is owed to local
government administrators in making that
determination. However, if modification is
warranted, the court should "give significant
weight" to the views of local government
SPRING 1992 7

,

officials. The court should also consider the
public interest, including the financial
constraints of government and the
undesirability of releasing potentially violent
prisoners.

Litigating under Rufo
The Rufo decision makes clearer what most
institutionallitigators have already begun to
realize: the outcome of a motion to modify
may have more to do with what happens
during the formulation and entry of the
judgment than with the modification
proceedings themselves. Whether a changed
circumstance was foreseen, whether a decree
provision "relates to the vindication of a
constitutional right" or is an "extraneous
detail," and whether the parties proceeded on
a "misunderstanding of the governing law"
are all questions that refer back to the parties'
intentions and state of knowledge when the
decree was agreed to.
Plaintiffs' counsel should therefore proceed
with the dangers of modification in mind and
make the record necessary to defend future
motions to modify. This should be done both
with consent decrees and with injunctions
entered after trial and decision.
Ideally, a consent judgment should itself
address some of these issues, stating the
relationship of the remedial provisions to
claimed constitutional violations insofar as
practicable, and identifying those compliance
problems that are foreseeable. For example,
some consent judgments specifically identify
population increases as foreseen contingencies
that do not justify modification; others
address the possibility that affected populations will be transferred to different or newly
constructed facilities.
In most cases it will be difficult to
negotiate, or even draft, a judgment that
adequately addresses all these issues, so
counsel will need another forum in which to
do so.
Most institutional reform cases are class
actions. An app~priate forum for making a
record sufficient to oppose modification is
created by Rule 23(e), Fed.R.Civ.P., which
provides that class actions "shall not be
dismissed or compromised without the
approval of the court." The Rule is silent
concerning the requirements for such
approval, but case law indicates that the
district court must determine whether the
proposed settlement is "fair, adequate, and
reasonable" to class members, and the trend
appears to be towards more formal proceedings and more thorough explorations of those
questions. See, e.g., Harris v. Pernsley, 654
F.Supp. 1042, 1049-52 (E.D.Pa.), afl'd on other
grounds, 820 F.2d 592 (3d Cir.), cert. denied,
484 U.S. 947 (1987); see also Harris v. Reeves,
761 F.Supp. 382, 394 (E.D.Pa. 1991), aff'd on
8 SPRING 1992

other grounds, 946 F.2d 214 (3d Cir. 1991).
The Rule 23(e) proceeding and the "fair,
adequate and reasonable" inquiry neatly fit
the need of plaintiffs' counsel to create a sort
of "legislative history" of the consent
judgment to inform future modification
proceedings. The word "inform" is used
advisedly, since such proceedings will often
take place before a different judge from the
one who approved the settlement and may be'
conducted by different counsel on both side'~
as well. Plaintiffs' counsel should present t~e
court with an explanation of the judgment's
terms, in writing or orally on the record,
combining argument and evidence as reqUired
to make the point. An affidavit or declaration by counsel, supported by excerpts of
depositions, documents obtained during
discovery, and an expert's report, prepared
either for trial or specifically in support of
the consent judgment, is probably the most
appropriate vehicle. A rationale should be
presented for each provision of the consent
judgment, explaining its relationship to the
protection of constitutional rights. In
particular, provisions that might seem
"extraneous detail" to someone with less
familiarity with the institution and its
problems than plaintiffs' counsel should be
explained. Counsel should also state their
understanding of the relevant law, but do so
in the most general terms with which they
are comfortable, to avoid future claims that
the parties proceeded under a "misunderstanding" of the applicable law or that
subsequent decisions represent more than a
"clarification" of that law. Counsel should
also "foresee" everything they can, discussing
the possibility of population increases and
disavowing any reliance on the defendants'
Pollyannish predictions, and identifying the
possibility or likelihood of cost overruns,
construction delays, and the other predictable
disasters that prison officials like to pretend
that they never thought about. One would
think that such a pose by defendants would
seem untenable on a subsequent motion to
modify if there is a contemporaneous
document in the case file predicting the kind
of scenario from which the defendants seek
relief.
The same principle applies to cases that are
tried on the merits, though the existence of a
trial record makes the job easier. In some
cases, the court's findings of fact and
conclusions of law may be sufficient support
for an adequate remedy. But that is rarely
true in cases involving technical issues or
large institutions. For example, most
institutionallitigators understand that
reforming a medical care system generally
requires some form of quality assurance or
other self-auditing procedure. Similarly, the
control of misuse of force or the maintenance

of sanitary conditions may require changes in
staffing patterns, administrative reporting
requirements, or other devices that may seem
unnecessarily intrusive if unexplained.
Some courts may reqUire an evidentiary
hearing on remedy, resulting in the creation
of the necessary remedial record. Even if a
hearing is not required, plaintiffs' counsel
should consider asking for one if the evidence
to support plaintiffs' remedial proposals is not
already in the trial record. (In some cases
this purpose may be accomplished by
submitting additiO\lal documentation or
affidavits.) If t1).1,\ irial record is sufficient,
counsel should rty.¥rshall it appropriately to
support the remedial terms sought. Ahandy
device for this purpose is the annotated
proposed order, in which every remedial
paragraph is followed by an explanation of
its necessity, supported by citations to
relevant parts of the record.
All this makes for more work for the
plaintiffs' attorney, especially in cases that
are settled. In reality, though, the work will
probably have to be done sometime, and it's
easier to do it when the case is fresh than to
engage in reconstruction years later.

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Damages-Conditions of Confinement/
Ventilation and Heating/Qualified
Immunity
Henderson v. DeRobertis, 940 F.2d 1055 (7th
Cir. 1991). The heat failed for four days in
subzero weather and the plaintiffs, segregation prisoners without any extra clothing,
were not given additional clothing or
blankets. A jury awarded each plaintiff
$3,000 in compensatory damages and $2,000 in
punitive damages against the warden and
assistant warden.
The right to "adequate heat and shelter"
was clearly established by 1982. The court
rejects the view that there was no clear right
to adequate heat and shelter during these
abnormal conditions. At 1059: "Contrary to
defendants' assertion, constitutional rights
don't come and go with the weather."
Defendants acted with deliberate indifference "if they possessed actual knowledge of
impending harm, easily preventable, so that a
conscious, culpable refusal to prevent the
harm could be inferred from their failure to
prevent it." The jury could have found that
the failure to provide any protection from
the cold constituted deliberate indifference.

THE NATIONAL PRISON PROJECT JOURNAL

1

Medical Care/Denial of Ordered Care
Johnson v. Lockhart, 941 F.2d 705 (8th Cir.
1991). A prison doctor recommended surgery
for the plaintiff's hernia within days; it took
ten months. Such delays were commonplace.
This request was not considered for three
months, and the Elective Surgery Review
Committee downgraded the priority of the
surgery for no apparent reason.
At 707: "Abdication of policy-making and
oversight responsibilities can reach the level
of deliberate indifference and result in the
unnecessary and wanton infliction of pain to
prisoners when tacit authorization of
subordinates' misconduct causes constitutional
injury."

AIDS/Financial Resources/Mental
Health Care/Handicapped/Law
Libraries and Law Books
Harris v. Thigpen, 941 F.2d 1495 (11th Cir.
1991). HIV postive prisoners must be provided
with "minimally adequate medical care."
(1504) At 1505:
In institutional level challenges to
prison health care such as this one,
systemic deficiencies can provide the
basis for a finding of deliberate
indifference.... Deliberate indifference
to inmates' health needs may be shown,
for example, by proving that there are
"such systemic and gross deficiencies in
staffing facilities, equipment, or
procedures that the inmate population
is effectively denied access to adequate
medical care. ': ..Moreover, although
incidents Of malpractice standing
alone will not support a claim of
eighth amendment violation, fa] series
of incidents closely related in time
may disclose a pattern of conduct
amounting to deliberate indifference. ':.. "Repeated examples of delayed
or denied medical care may indicate a
deliberate indifference byprison
authorities to the suffering that
results. ':..[Citations omitted]
The plaintit1's' evidence in this case shows
at most "isolated incidences [sic] of medical
malpractice." The staffing is adequate and
while the lack of knowledge of some primary
care physicians is "disturbing," deliberate
indifference is not shown.
In dictum (1509), the court
reject[s]any suggestion".thata state's
comparative wealth mightaffect an HIVinfectedprisoner'S right to constitutionally adequate medical care. We do not
agree that 1inancial considerations must
be considered in determining the
reasonableness"of inmates' medical care
to the extent that such a rationale could
ever be used by so-called "Poor states" to
deny aprisoner the minimally adequate
THE NATIONAL PRISON PROJECT JOURNAL

care to which he or she is entitled.
The mental health care offered to HIVpositive inmates was constitutionally
adequate even though at least one prison "is
not ideally staffed and the quality of its
mental health care perhaps is substandard."
(1510) The court suggests that the plaintiffs;.1'
claims regarding deficiencies in education aU9
counseling-Le., help in "'cop[ing]' psychologj,..
cally with the various aspects of a dread .. ;' .
physical illness, while therapeutic, may Jj~ a
more expansive view of mental health s~re
than that contemplated by the eighth ..
amendment." (1511)
Prison inmates retain some degree of
constitutional protection of privacy. The
court "believe[s] and assume[s] arguendo that
seropositive prisoners enjoy some significant
constitutionally-protected privacy interest in
preventing the non-consensual disclosure of
their HIV-positive diagnoses to other inmates,
as well as to their families and other outside
visitors to the facilities in question." (1513)
However, segregation of HIV-positive inmates,
which results in disclosure of their status, is
upheld under the Turner standard.
The Rehabilitation Act applies to prisoners.
Seropositive prisoners are handicapped within
the meaning of the Act. The district court's
generalized conclusion that such prisoners
were not "otherwise qualified" for the
programs from which they were excluded,
based on the danger that infection would be
transmitted, is insufficiently supported,
because each program must be analyzed
separately. The court "do[es] not believe...that
the prison's choice of blanket segregation
should alone insulate the DOC from its
affirmative obligation under the Act to
pursue and implement such alternative,
reasonable accommodations as are possible for
HIV-positive prisoners with respect to various
programs and activities that are available to
the prison populations at large." (1527)
The district court's conclusions regarding
the inadequacy of seropositive prisoners to
the law library are inconsistent with its
denial of relief; the claim is therefore
remanded.

Protection from Inmate Assault
Hendricks v. Coughlin, 942 F.2d 109 (2d Cir.
1991). The plaintiff implicated another
prisoner in a crime and was threatened. He
complained and prison officials decided he
should be transferred, but the transfer
application was rejected by the Central Office.
Another inmate then threw hot water at him
and burned him. His claim against prison
officials was properly submitted to the jury.
Inmate assault cases are governed by the
deliberate indifference standard, not the
Whitley malice standard, because there are
generally no competing penological interests.

"In fact, taking measures to ensure inmates'
safety aids in the maintenance of order in
prison." (113) Jury instructions that failed to
state that a finding of liability could be based
on a finding of reckless disregard for the
plaintiff's rights were inadequate.

Municipalities/Use of Force
KoPf v. Wing 942 F.2d 265 (4th Cir. 1991).
Evidence of numerous prior incidents of
excessive police force, a low percentage of
excessive force complaints sustained through
internal investi~ations, and policies of
destroying in.Y~~tigative reports after six
months and n,oY photographing dog bites were
sufficient to 'withstand a motion for summary
judgment as to municipal liability. At 269:
...(Iff[appellant] can prove the numerous instances Of excessive force she
alleges, in conjunction with circumstantial evidence Of a "circle the tents"
approach to police brutality complaints, we think a fair-minded jury
couldfind that the county has a
custom orpractice of letting incidents
Of excessive force go unpunished.

Protection from Inmate Assault
Redman v. County Of San Diego, 942 F.2d _
1435 (9th Cir. 1991) (en banc). The 18-year-old
slightly built plaintiff was placed in a "young
and tender" unit on admission to jail. Aweek
later he was transferred to general population
and double celled with an "aggressive
homosexual" who had been transferred out of
homosexual housing because of his sexually
aggreSSive behavior. The plaintiff was
repeatedly raped. His girlfriend's mother
called the jail and told personnel he had been
threatened; she was told that the jail did not
operate a "baby-sitting service." The plaintiff
was called down and interviewed within
view of his assailant and other inmates and
denied having any problems. Apanel of the
Ninth Circuit affirmed a directed verdict for
jail officials, which the en banc court here
reverses.
The deliberate indifference standard
applies to inmate assault cases whether the
plaintiff is a detainee or a convict. Conduct
that is "so wanton or reckless with respect to
the 'unjustified infliction of harm as is
tantamount to a knowing willingness that it
occur'" (1443, citing Whitley) is actionable
because it is eqUivalent to a deliberate choice.
"[I]f...officials know or should know of the
particular vulnerability, then the Fourteenth
Amendment imposes on them an obligation
not to act with reckless indifference to that
vulnerability." (1443, citation omitted.) The
jail's policy or custom of placing "aggreSSive
homosexuals" in general population and the
county's policy of overcrowding the jail so
that other inmates were double celled with
SPRING 1992 9

l
aggressive homosexuals, as opposed to
segregating these prisoners, supported a
Monell claim.
The Sheriff could be held liable, even
though there was no evidence that he knew
of the specific threat to the plaintiff, based
on evidence that he "knew or reasonably
should have known of the overcrowding at a
facility under his administration and that he
acquiesced in a deficient policy that was a
moving force behind Redman's rape and that
repudiated Redman's constitutional right to
personal security," (1447) and that he
personally approved the jail's classification
policies.

Searches-Living Quarters/Qualified
Immunity/Cruel and Unusual Punishment-Proof of Harm
Scher v. Engelke, 943 F.2d 921 (8th Cir. 1991).
The plaintiff reported a guard's misconduct
and the guard eventually resigned. Afterward, the plaintiff's cell was searched
repeatedly by the defendant (ten times in 19
days) and was left in disarray three times. A
jury awarded $1000 in punitive damages and
no compensatory damages; the court sua
sponte awarded $1.00 in nominal damages.
The district court correctly denied JNOV,
since the evidence supported a finding of
Eighth Amendment violation. Hudson v.
Palmer, while finding no Fourth Amendment
rights with respect to cell searches, acknowledged that the Eighth Amendment prohibits
"calculated harassment unrelated to prison
needs." To my knowledge, this is the first
reported case ruling in a prisoner's favor on
an Eighth Amendment cell search claim.
At 924: "...[T]he scope of eighth amendment
protection is broader than the mere infliction
of physical pain..., and evidence of fear,
mental anguish, and misery inflicted through
frequent retaliatory cell searches, some of
which resulted in the violent dishevelment of
Scher's cell, could suffice as the requisite
injury for an eighth amendment claim."
The defendant is not entitled to qualified
immunity despit~ the lack of a case in point.
At 925: "The law making retaliation for the
exercise of a constitutional right actionable
under §1983 has been established for some
time and an objectively reasonable official
could not fail to know of it."

Pro Se Litigation/Hygiene
Carver v. Bunch, 946 F.2d 451 (6th Cir. 1991).
An allegation of a two-week denial of
personal hygiene items stated an Eighth
Amendment claim if the defendants denied
the plaintiff "basic elements of hygiene"
through deliberate indifference and not
inadvertence or good faith error.
The plaintiff's complaint should not have
been dismissed for failure to comply with a
10 SPRING 1992

local rule requiring litigants to file memoranda of law in connection with all motions.
That interpretation of the local rule would
exceed the court's authority under Rule 41(b),
Fed.R.Civ.P., which deals with failure to
prosecute. Since the plaintiff generally tried
to comply with the rules, he did not really
fail to prosecute the case.

Correspondence-Non-Legal/Qualifie~

Immunity

:;'

'.

Griffin v. Lombardi, 946 F.2d 604 (8th c;tf
1991). Prison officials refused to deliver to .
the plaintiff his original diploma and grade
transcript from a correspondence paralegal
course. They argued that their rule was
rationally related to preventing forgery of
documents, but the plaintiff submitted
evidence that many other inmates had been
permitted to receive their original diplomas
and transcripts. This evidence raised a
genuine issue of fact as to whether the
officials could have reasonably believed that
they were not violating the plaintiff's rights'
under the Turner standard, and defendants
were not entitled to summary judgment based
on qualified immunity.

Suicide Prevention/Municipalities/
Negligence, Deliberate Indifference
and Intent/Financial Resources/
Damages/Pendent Claims; State Law in
Federal Courts/State Law Immunities/
Training
Simmons v. City ofPhiladelphia, 947 F.2d
1042 (3d Cir. 1991). The decedent was arrested
for public intoxication, was placed in a cell
alone and with only intermittent surveillance, and hanged himself with his trousers.
The jury found the city to have had a
policy of deliberate indifference but the
defendant officer merely to have been
negligent. The verdicts are upheld. The
liability of line staff need not be established
to support municipal liability. However, the
plaintiff must have adduced "scienter-type
evidence" as to some identifiable person
determined by the district court to have final
policy-making authority. At 1063: "[A]bsent
the conscious decision or deliberate indifference of some natural person, a municipality,
as an abstract entity, cannot be deemed to
have engaged in a constitutional violation by
virtue of a policy, a custom, or a failure to
train."
In assessing the degree of risk with which
municipal policymakers are confronted, it is a
mistake to emphasize the probability of harm
to an individual detainee. The small number
of suicides relative to the entire jail population is not determinative. The question is
whether "the City showed deliberate
indifference toward the class of intoxicated
and potentially suicidal pretrial detainees...."

(1070) Thus, the fact that the same small
number of detainees had been committing
suicide for several years supported the
plaintiffS case. The fact that the City had
considered additional suicide measures used
in other cities but had not implemented them
also supported the plaintiffs' case, especially
since some of these measures were relatively
inexpensive, and the City presented no
actual evidence of how expenSive the
others would be.
The record supported the view that the
City's deliberate ir;ifference caused the
decedent's suici4eiJiince he was left alone in a
cell block with rJif audio-visual monitoring.
At 1071, n. 28: The fact that the City took
some measures against suicide does not negate
a deliberate indifference claim. "...[I]n some
cases deliberate indifference may indeed
coexist with deliberate, but insufficient,
caution." For example, policymakers may
take steps that they later find to be insufficient, and then do nothing about it.

DISTRICT COURTS
Medical Records/Federal Prisons and
Officials
Benavides v. Bureau ofPrisons, 771 F.Supp.
426 (D.D.C. 1991). Federal regulations
implementing the Privacy Act that permitted
the Bureau of Prisons to release prisoners'
medical records only to physicians and not to
the prisoner are inconsistent with the Privacy
Act, which is intended to protect individuals
from invasions of privacy by others.

Visiting-Conjugal Visits
Cromwell v. Coughlin, 773 F.Supp. 606
(S.D.N.Y. 1991). The state prisons' Family
Reunion Program regulations do not create a
liberty interest; it does not deny due process
to establish the program at some prisons and
not others. But the failure to provide the
program at Sing Sing may violate the
plaintiff's "fundamental right to marital
privacy." Defendants asserted only that
"current program priorities and fiscal
considerations continue to militate against
the establishment of a Family Reunion
Program at Sing Sing." Without more, the
court cannot determine whether the absence
of the program meets the Turner reasonable
relationship standard. It notes that the
plaintiff has alleged that a Quaker organization is prepared to donate the necessary
facilities.

Law Libraries and Law Books
Gluth v. Kangas, 773 F.Supp. 1309 (D.Ariz.
1988). Defendants' changes in law library
policy did not moot the plaintiff's injunctive
claims in view of the allegations of continuing constitutional violations.
THE NATIONAL PRISON PROJECT JOURNAL

I

Inmates denied physical access to the law
library are entitled to the assistance of
"persons trained in the law' (citing Bounds,
emphasis added by court), and the plaintiff is
entitled to summary judgment based on
evidence that inmate legal assistants receive
no training.
Defendants' paper policy provided adequate
law library access, but undisputed evidence
showed that the defendants have "a history
of arbitrarily denying prisoners library
access." Summary judgment is granted to the
plaintiff. At 1311: "In light of this history, the
vagueness of the Defendants' new policy fails
to provide detailed guidelines to thwart
arbitrariness and insure that inmates will
enjoy adequate law library access."
Plaintiff is granted summary judgment as
to defendants' indigency policy, which "forces
inmates to choose between purchasing
essential hygienic supplies and essential legal
supplies. This 'choice' is unacceptable." (1312)
The supplies mentioned by the court include
stamps and paper.

AIDS/Handicapped/Attorney
Consultation
Casey v. Lewis, 773 F.Supp. 1365 (D.Ariz.
1991). At 1367: "A prisoner's right to access to
the courts encompasses a right to contact
attorney visits." Under the Turner standard,
plaintiffs were entitled to summary judgment
on the denial of contact counsel visits in
high-security units, since the defendants came
forward with no evidence of escapes, assaults,
etc., during the period when such visits were
permitted. The court rejects the cost defense.
The exclusion of HIV positive prisoners
from food service jobs violates §504 of the
Rehabilitation Act. The rational relationship
test is not applicable, since the statute "flatly
prohibits" discrimination against the
handicapped. The "unfounded fears and
mythologies" of other prisoners do not justify
such discrimination. Each HIV positive
individual must be assessed individually as
"otherwise qualified" or not. The court also
notes that thellefendants' affidavits "appear
to be based on speculation, conclusory
statements, and allegations not based on
personal knowledge." (1372) It cites as an
example the claim, "It is well known that one
of the major causes of riots at correctional
institutions...is inmate dissatisfaction with
food services."

Communication with Media
Kimberlin v. QUinlan, 774 F.Supp.l (D.D.C.
1991). The plaintiff told the press that he had
sold drugs to Dan Quayle and had another
press interview scheduled; the director of the
Bureau of Prisons cancelled the interview and
had him put in administrative detention.
Two days later, he was again placed in
THE NATIONAL PRISON PROJEG JOURNAL

detention before a scheduled phone call to
the press. Plaintiff brought Bivens claims
against the defendant federal officials. The
district court rejected the government's
motion to dismiss.
At 3: "It was clearly established in
November 1988 that, absent special circum-::\"
stances, federal prison inmates have a First':~;
Amendment right to be free from governml.jIltal interference with their contacts with the.
press if that interference is based on the';
content of their speech or proposed spe«tp."
Supreme Court decisions upholding restriCtions on prisoners' First Amendment rights
have stressed the restrictions' contentneutrality. At 4 n. 6: "An inmate also has a
well-established right to be free from
retaliation based on the content of his
previous interviews with the press." Whether
a prisoner had a constitutional right to visits
or phone calls to the press is not the issue
even for qualified immunity purposes.

Classification-Race/Personal Involvement and Supervisory Liability
Santiago v. Miles, 774 F.Supp, 775 (W.D.N.Y.
1991). At 777:
Ifind thatplaintiffs have proven the
existence Of a pattern of racism at the
Elmira Correctional Facility. This
racism goes beyond verbal taunts and
racial slurs uttered by guards to
minority inmates. The racism affects
job placemen~ housing assignments
and discipline at Elmira to a degree
that is unacceptable under the
principles of equality that form the
basis of our government.
The plaintiffs' unrefuted statistical
evidence alone established a prima facie case
of intentional discrimination. The court is
unimpressed by the defendants' failure to
submit an explanation of the racial disparities
in addition to their criticisms of the plaintiffs' evidence. The statistical analysis is
buttressed by testimony about (800)
scores of incidents from which a clear
pattern of racial animus emerges. The
evidence is overwhelming that an
entrenched attitude Of discrimination
and racism exists at Elmira. This
historical background evidence of
animus strongly supports the inference
that housing and programming
disparities resulted from intentional
discrimination.

Contempt
Morales Feliciano v. Hernandez Colon, 775
F.Supp. 487 (D.P.R. 1991). The court directs
that the $68 million in fines for overcrowding
that have accumulated under its prior
contempt orders be transferred to the United
States Treasury at a rate of $1 million a week.

At 489: "Despite the continuing horrors
within the walls of the institutions, defendants produce more excuses than results....
This pattern of broken promises and
abandoned plans must be stopped, and the
business of making lasting changes in the
administration of this system must be
started."

Access to Courts/Legal Assistance
Programs
Abdul-Akbar v. Watson, 775 F.Supp. 735
(D.Del. 1991). PlIfsoners in a "Maximum
Security Unit'~ .~ere not permitted physical
access to the IjIain law library. They were
permitted access to a satellite library, a paging
system for the provision of photocopies, and
varying degrees of legal assistance by
paralegals and an attorney. The satellite
library was in an area that flooded every
time inmates' sinks or toilets overflowed (in
.Jact, there were high-water marks painted on
the walls).
If prison officials choose to satisfy their
Bounds obligations with a law library,
"inmates must be afforded a reasonable
amount of time to use the library." (748) If
they provide an alternative to direct law
library access, the alternative "'must be of at.
least equal caliber,'...even for inmates in
segregated security areas." (748) Restrictions
on direct access must be justified by "specific
security considerations that the access
limitations address," and not by "'automatic
and conclusory assertions of discipline and
security in the support of restrictive policies.'''
Paging systems are probably not constitutionally adequate by themselves. Asystem
intended to provide assistance from persons
trained in the law, rather than law libraries,
must provide access as good as that provided
by a law library. An untrained staff is not
enough. If prison authorities rely exclusively
on attorney assistance, lawyers must be
available "for all relevant legal proceedings."
Prisoners need not prove injury in court
access cases implicating the "core Bounds
issue" of adequate access to a law library or
persons trained in the law.
The satellite library is not adequate because
it lacks sufficient materials. At one point it
had only "a 1974 set of the Delaware Code
Annotated, several volumes each of the
Atlantic 2d Reporter and the Atlantic Digest,
and treatises on torts and criminal law."
(749) Later, it had more state reporters but
they were two years behind. The only
federal materials were several volumes of the
U.S.C.A. and a 1969 habeas corpus treatise.
Access to federal law is necessary for habeas
petitions and civil rights cases.
The paging system is inadequate because
it only provides for five photocopied cases
a week and digests are not available. At
SPRING 1992 11

751: "[I]mplementing an exact-cite paging
system without providing inmates sufficient resources from which to locate
citations does little to assist them with
their research." The fact that a lot of
copies were made does not show the system
is adequate. The five-case limit is not
justified by the fact that there is only one
copying machine; "it may be necessary to .
purchase one or more additional photocopiers." (752)
The system of trained legal assistance is
also inadequate. The prison has a staff
attorney, but he has not assisted any
inmate, and the inmate paralegals do not
offer advice or even perform legal research
under his supervision.

FEDERAL RULES

Discovery
Fagan v. District of Columbia, 136 F.R.D. 5
(D.D.C. 1991). At 7:
Defendants also claim that these
interrogatories are unduly burdensome because they require endless
culling offiles to tabulate the
information. The mere fact that
discovery requires work and may be
time consuming is not sufficient to
establish undue burden.... It is
reasonable to expect defendants to
have the information plaintiffs seek
and for the information to be
accessible in defendants'files.
Plaintiffs should not suffer if the
information is not easily accessible
because defendants have an inefficient filing system....

NPP Goes Beyond Litigation
in Pennsylvania
ower concedes nothing without a
demand; it never has and it never

P

will

-Frederick Douglass

Since the early 1980s, prisoner rights
advocates have seen hard-won rights of
prisoners eroded by the Supreme Court.
We have fought an uphill battle to avoid
the total destruction of those rights.
At a meeting held at the National
Prison Project office in Washington in
late 1989, we put words to our long-held
thoughts: we must go beyond litigation
to community activism in order to
change crimina'!' justice policies.
At that meeting Scott Burris and Stefan
Presser of the American Civil Liberties
Union of Pennsylvania came to the
offices of the NPP to sit around the table
and discuss our helping with a statewide
class action lawsuit challenging the
constitutionality of Pennsylvania's
prisons. The meeting was held on the
heels of the Camp Hill prison disturbance
which focused public attention on the
brutality of prison conditions in Pennsylvania.
We shared with Stefan and Scott our
desire to combine litigation with
community activism wherever possible.
They told us about several groups in
12 SPRING 1992

Pennsylvania who were doing some
community education and legislative
lobbying, including CURE, the Pennsylvania Prison Society, and the Pennsylvania
Institutional Law Project. We decided to
become involved in the case and to join
the litigation component with community education and mobilization.
We invited the community groups to a
first meeting in April 1990. Representatives from the ACLU, CURE, Pennsylvania
Prison Society, Pennsylvania Coalition to
Abolish the Death Penalty and the
Pennsylvania Institutional Law Project
talked about the need for a coalition to
advocate for necessary changes in
criminal justice policies that were
resulting in overcrowded prisons and
wasted lives. We discussed the importance of involving people of color-the
most affected by inhumane criminal
justice policies-religious groups, and
other organizations known for their
interest in social justice. We developed
goals including public education and
support for alternatives to imprisonment.
We named ourselves the "Coalition for
Fair and Effective Criminal Justice."
The Coalition has grown over the last
year and a half and now represents the
Lewisburg Prison Project, International
Coalition of Jewish Prisoners, National

Sanctions/Monitoring and Reporting
Lelsz v. Kavanagh, 137 F.R.D. 646 (N.D.Tex.
1991). In a case involving institutions for
the mentally retarded, the court directs the
removal of an Assistant Attorney General
from the case based on her obstructionist
conduct, particularly with regard to the
activities of a court-appointed "Expert
Consultant." II

john Boston is the director of the
Prisoners' Rights Project, Legal Aid
Society of New ~rk. He regularly
contributes this,./column to the NPP
JOURNAL.
•

Conference of Black Lawyers, American
Friends Service Committee, Western
Pennsylvania Coalition Against the Death
Penalty, Pennsylvania Defenders Association, the NAACP, Community Assistance for
Prisoners, Offender Aid and Restoration
(OAR), Pennsylvania Council of Churches,
the Latino community, ex-prisoners, and
family members of prisoners.
The Community Speaks
When I got off the elevator on the
fifth floor at 924 Cherry Street in
Philadelphia for a meeting on November
1, 1990, running late, I stopped dead in
my tracks: the conference room was
bulging with people. I could hardly get
in. People, lined up against the walls,
spoke passionately about the need for
change. Wives and loved ones of
prisoners spoke of their frustration at
going to the prison only to learn of a
new visitation policy that would mean
they had to return home without a visit.
They talked about the waiting lists for
educational and vocational programs
that meant that their loved ones would
have less chance for employment upon
release and, in addition, more difficulty
obtaining parole. They told about the
"life without parole" sentence that
relegated their loved ones to highersecurity prisons which were less accessible and less programmatically challenging. These facilities often denied them
participation in certain programs,
although their in-prison record indicated
they were good candidates. Any time it
Wished, the (Pennsylvania) Department
of Corrections could transfer a loved one
THE NATIONAL PRISON PROJEG JOURNAL

1\
~I

~~~J..l..:.'

5

g>
.~

~

At that meeting we again combined a
discussion of in-prison programming
with the need for community and
legislative action. We spoke about the
role of religious groups both within the
prison and in the community to advocate
for humane criminal justice policies; the
role of families and their concerns; and
the need for creative legislative strategies. Our keynote speaker, state representative David Richardson, brought the
issues together:
We need cl1fmges in the country.
We needtf/.develop proactive
legislatiC!rf, to develop a grassroots
lobby. There have been some
victories over the years, but we
need one now.

'iii
....c::
l./)

The meeting brought all the different groups together.

to another state, far from home. Many
were too poor to financially assist or
even to regularly visit their loved ones.
The discussion of poverty was interwoven in, and was often underlying, other
discussions.
At the meeting I was, in many ways, a
participant-observer as well as a group
leader. I had felt the struggle of working
to change the system. Family members
wanted solutions to the very personal
problems they faced in confronting the
prison system on a daily basis. I realized
that for many of us "organizational"
people the concern was at least one step
removed from the personal: we had seen
the problems of prisons as more global
and systemic than personal. All of us,
during the course of our work, had been
touched by some human experience-the
fine artist who may never see the city
streets except from the window of a cell;
the 18-year-old victim of abuse and an
inhumane foster care system who was
now facing 25 years in prison; or, the
community activist who stopped to help
a victim of police violence and now was
on death row. The impact the criminal
justice system's prison bureaucracy had
on the lives of its most immediate
victims gave us reason to pause and
reconsider our strategies.
We realized we could not build a
movement to make fundamental changes
in criminal justice policy without
addressing the more immediate needs of
the prisoners and their families and
friends. Although the litigation, if
successful, would remedy problems of
access to health care, sanitation, some
programming and other "in prison" issues,
it could not meet other concerns of the
prisoners and families, much less change
THE NATIONAL PRISON PROJECT JOURNAL

the shortsighted and cruel policies of the
"lock 'em up and throwaway the key"
mentality.
Over the next months we deliberated
and, through the continued involvement
of ex-prisoners and prisoners' families,
developed a strategy for change through
legislation coordinated with the need to
focus on prison administrative decisions.
Susan Beard, a CURE member and wife
of a life-sentenced prisoner, developed a
visitation survey. She and other family
members had experienced the arbitrary
differences in visitation policy among
Pennsylvania prisons, Often, she or
another family member would travel to
a facility only to be told they could not
visit, bringing disappointment as well as
wasting time and money. We wanted to
compile data on the visitation problems
and present some recommendations to
the Pennsylvania Department of Corrections. We also wanted prisoners and
their families to know they were
included in the coalition.
The Coalition for Fair and Effective
Criminal Justice, although technically
created in the spring and summer of
1990, was not really born until after
November 1990, when we combined our
community education and legislative
lobbying efforts with the realities faced
daily by prisoners and their families. We
developed the survey and talked about
visitation. At the same time we discussed
strategies for increasing the availability
and use of alternatives to incarceration.
We debated the need for earned time
legislation while discussing how to
increase volunteerism and programs
within the prisons. Our second major
forum, held in September 1991, symbolized our growth as a coalition.

The conference brought together a lot
of what I call "just plain folks." Community people wanted to know more about
what could be done. Some said they
knew the current policies wasted tax
dollars, encouraged prison crowding, and
failed to really protect the community.
They wanted to hear about another way.
They didn't buy the idea that the ACLU,
NCBL, Pennsylvania Prison Society and.
other groups were soft on crime. Some
of these people are working with the
Coalition as we continue to discuss and
activate strategies to end prison crowding
and start salvaging the lives of thoselargely poor and people of color-who
end up receiving the harsh punishment
of incarceration.
Our meetings and public education
have resulted in small victories. Legislation was passed allowing prison visits for
Pennsylvania Prison Society volunteers
and legislators in December 1990. In
December 1991, both houses of the
legislature passed a bill exempting the
mentally retarded and persons 18 or
under at the time of the crime from the
death penalty. Also in December 1991,
public hearings were held on lifers'
parole eligibility in two state prisons.
We have a lot more work to do in
Pennsylvania to turn things around.
There is no full-time staff to coordinate
our work; community education and
legislative lobbying take time and energy.
We now have a coalition, however, that
represents not only traditional prisoner
rights advocates, but also newly formed
organizations of ex-prisoners, families of
prisoners, and "just plain folk." •

Adjoa A. Aiyetoro is associate director
for administration and a senior staff
attorney with the National Prison
Project
SPRING 1992

13

(cont'd from page 5)

Baton Rouge, which was handling the
Angola litigation, and the District Court
in New Orleans. This conflict lasted for
four years and was finally resolved by
the Fifth Circuit Court of Appeals in
1981. (Hamilton v. Morial, 644 F.2d 351
(5th Cir. 1981)). The court of appeals
decided that all future questions of
inmate population were to be assigned
to Judge Frank]. Polozola of the Middle
District of Louisiana. Those parts of
the 1972 original Hamilton order not
dealing with population limits remained intact.
To this day, Judge Polozola sets
population levels at all of Louisiana's
prisons and jails. Under this current
mechanism, OPP accepts and holds
convicted state prisoners until they are
transferred according to the weekly
quota allowed the sheriff. The length
of post-conviction confinement at OPP
ranges from two to five years, although
it is not unusual for sentenced prisoners to remain even longer.
Litigation after the decision transferring jurisdiction of the population issue
to Judge Polozola was limited to
resolving the dispute between the
defendants over responsibility for
medical care at the prison. The local
state hospital refused to accept prisoners without payment. The City and
sheriff refused to pay, arguing that the
State had an obligation to provide
medical care to the destitute. In
general they do have some obligation, a
legacy of Huey Long, but the State
argued that its duty did not extend to
prisoners. In 1982, plaintiffs' counsel
sought to force the state hospital to
accept prisoners.
After 1982, there is no indication in
the record that plaintiffs were represented by counseJ.4 Eventually,
defendants reaChed agreement among
themselves, the terms of which were
renegotiated annually through 1985not without motions and cross-motions
for contempt. This was the only
activity reported on the case during
the period. It was not until 1988 that
plaintiffs indicated renewed interest in
the case.
The Current Litigation
There are 4,500-5,000 prisoners
confined at various OPP facilities. The
great majority are confined in four
buildings: the Old Parish Prison, the
House of Detention, the Community
[Corrections] Center and the
14 SPRING 1992

Templeman facility. Additionally,
large army tents house between 300
and 400 municipal detainees, and a
number of warehouse-type facilities
have been constructed or renovated to
accommodate several hundred other
low-risk detainees, including some 200
juveniles. Even with this capacity,
most municipal detainees (and some
minor felons) are released or not
admitted because of the crowding. 5
J:~
The crowding at OPP is almost
'lo'
without parallel in any big city jail in
the United States. While most jails and
many prisons struggle under the strain
of double-bunking, triple-bunking and
quadruple-bunking is used throughout
most of the OPP. One routinely sees
prisoners sleeping on the floor waiting

for a bunk to open. To compound
matters, the prison operates on a
virtual lock-down status with only
periodic opportunities for recreation or
out-of-cell activities. The list of
deplorable conditions that resulted
from the crowding generally track the
findings made by Judge Christenberry
20 years ago. By the time plaintiffs'
counsel reappeared in the case, the
accumulated problems of the OPP
appeared both enormous and intractable.
In 1988, the National Prison Project
was approached by local attorneys and
the local American Civil Liberties
Union affiliate for assistance in
challenging the conditions at OPP.
Shortly after the National Prison
Project filed an appearance on behalf
of plaintiffs in 1989, the plaintiffs'
lawyers recognized that the need for
immediate relief was most acute in the
prison's medical department. 6 Fragmented, grossly underfunded and
understaffed, the medical department
failed to meet the needs of OPP
prisoners, resulting in unnecessary
suffering and loss of life. ·At this
juncture, the court separated the claims
into phases and ordered that activities

,i-

in the case be directed toward an
expeditious resolution of Phase I, the
medical claim. Unfortunately, this did
not happen.
Throughout 1989 the plaintiffs and
the sheriff waged a pitched battle over
access to the prison and the information in the sheriff's possession. At
every turn, we met with intense
opposition. By the end of the year,
because of defendants' tactics, we knew
little more about the workings at OPP
than when the "?far started. Most of
the informatioIl;,We obtained was
provided by a.Uindful of prisoners or
gleaned by plaintiffs' consultant, Dr.
Robert Cohen (former director of the
Health Care Services at Rikers Island,
New York), during his restricted on-site
visits. We were largely unsuccessful in
prying from the sheriff the other
discovery necessary to proceed to trial.
For example, our interrogatories and
document requests were largely
ignored. Similarly, after intensely
opposing our request for an on-site
visit by Dr. Cohen, so many restrictions
were placed on his eventual visit that
he left without resolving most of his
questions. Frustrated by the lack of
progress, Dr. Cohen resigned as plaintiffs' expert. In contrast, if the sheriff
had allowed Dr. Cohen the access later
granted Dr. Steven Safyer, plaintiffs'
new expert and current director of
Health Care Services at Rikers Island,
New York, a whole year of litigation
and expense could have been avoided.
By the close of the year we had
serious questions about our ability to
develop and present a successful case.
Although we knew that serious
problems existed in the prison, the
sheriff had successfully kept us at bay.
Clearly, a new strategy was reqUired
and, beginning in 1990, we took a new
tack by circumventing the sheriff's
refusal to cooperate in discovery.
Plaintiffs sought to learn from the
State and the parish coroner how many
prisoners died in recent years or were
admitted to Charity Hospital (CHNO) in
critical or serious condition. To do
this, we reviewed coroner autopsy
reports, CHNO death logs, and emergency room logs for a five-year period.
This massive effort produced the
names of 50 deceased OPP prisoners, as
well as names of hundreds of prisoners
requiring emergency room treatment.
The records thus acqUired showed a
shocking pattern of serious failure to
prOVide medical care. When the
defendants were confronted with this
THE NATIONAL PRISON PROJECT JOURNAL

evidence, the case took a decisive turn
in our favor. Shortly thereafter the
parties entered into a joint discovery
order that put liability aside and
focused on developing a remedy.
To the sheriff's credit, this mechanism worked very well. In several
short months, Dr. Charles Mary, the
sheriff's expert, and Dr. Safyer completed their evaluation, and jointly
developed a comprehensive medical
program for the prison. The remaining
question was the funding for the
program. The sheriff maintained that
the responsibility rested with the City
and State defendants, in proportion to
the number of prisoners each had at
the prison. The City and State (particularly the State) contested that
. position, arguing that the established
per diem paid to the sheriff satisfied
any duty they had. Additionally, the
State and City defendants both disputed whether a constitutional
violation existed at the prison and
attempted to prove otherwise.
The impasse lasted nearly six months
and all parties expended large amounts
of time and money preparing for trial.
Until the eve of trial, the defendants
contested liability and fought over
who should bear the cost of providing
medical services. In the final analysis,
the dispute over the constitutional
question ultimately became secondary.
The real dispute centered on funding,
and that issue, not whether the
medical care violated the Constitution,
stalled settlement until after trial had
begun. Anyone familiar with the
conclusions reached in the Mattick
Report could not help feeling a sense of
deja vu.
One day into trial, the defendants
surrendered and the parties signed a
comprehensive agreement establishing
a system of medical care at the prison,
to be fundea by two million dollars in
annual aid from the State and City and
to be headed by a full-time medical
director. The agreement governs every
aspect of medical services at the prison
and provides for a level of staffing and
care that is consistent with correctional health standards for big-city
jails. Moreover, the agreement provides
that the judgment shall remain in
effect until the prison receives accreditation from the National Commission
on Correctional Health Care. To ensure
its implementation, the decree establishes a self-reporting mechanism and
provides for a court-appointed monitor.
After two years, in late November
THE NATIONAL PRISON PROJECT JOURNAL

1990, Phase I finally came to a close.
However, there is serious concern over
whether the sheriff will be able to
implement the decree. Early indications from the court-appointed monitor
are that many of the changes appear to
be cosmetic and that the Order is not:~'
being taken seriously. One year after,';;
the decree was negotiated, a full-tim~
medical director was only finally biled;
still, there has been no action on a';
number of significant decree provlt
sions. Post-judgment enforcement .
proceedings are inevitable.
Phase II deals with mental health
services. After discovery was conducted in the spring of 1991, the parties
entered into a stipulation in which the
defendants acknowledged the gravity

of the situation and essentially confessed liability. Discovery revealed
that mental health services are grossly
inadequate to serve the population.
Over 250 seriously ill inmates are under
the care of a single psychiatrist who
uses psychotropic medications as a
control agent, without monitoring. The
majority of mentally ill patients under
his care are confined in large eight- to
ten-man cells under a virtual
lockdown. No mental health services
are available to the general population,
and there are no adequate intake
screening mechanisms in place to
identify those in need of mental health
care.
Perhaps most egregiOUS of all, many
people adjudicated incompetent to
stand trial or not guilty by reason of
insanity are confined in the prison for
months and years awaiting transfer to a
state hospital. After much dickering, the
defendants contracted with the National
Commission on Correctional Health Care
to assess and develop a mental health
care system at the prison. The target
date for submission of a plan to the court
was the close of 1991, although as of this
writing a plan has yet to be submitted.
In April 1992, the court appointed an
expert to develop a plan. The Louisiana
Department of Health and Hospitals also
agreed to remove from the OPP those
persons legally committed to state
hospitals.

Phase III of the case involves general
conditions of confinement. Discovery
has been occurring for several months
and will close on June 1, 1992. Trial will
occur shortly thereafter. At a minimum,
plaintiffs will seek to close tent city, to
eliminate triple and quadruple-bunking,
to remove juvenile prisoner from adult
facilities, and to otherwise improve
desolatory living conditions.
The course of Hamilton shows that
conditions at OPP improved in some
respects in th~ years immediately
follOWing th~.4972 decision. However,
the defendapls never completely
complied with many of the critical
standards set forth in that decision,
including establishing a city department
of correction, eliminating the overcrowding at OPP, and closing the Old Parish
Prison. The success of the current
litigation will depend on the persistence
of plaintiffs' counsel, the attention of the
court, and the lawful behavior of the
defendants. •

Mark] Lopez is an attorney with the
National Prison Project.
I The principal source for the background section
is from an American Bar Association case study
of the Hamilton case. See After Decision:
Implementation ofJudicial Decrees in Correctional
Centers: A Case Study of Hamilton v. Schiro, Spiller,
D., October 1976.
2 Hans Mattick, Co-Director of the Center for Studies
Criminal Justice at the University of Chicago Law
School. Acopy of this report is appended to the final
report of the Special Master (7/26/72), and is on file
with the court.
3 See Williams v. Edwards, 644 F.2d 351 (5th Cir. 1981).
4 The absence of plaintiffs' counsel may explain in
part why there was no significant litigation over
rapidly deteriorating conditions at the prison after
1982. The other significant factor was the transfer
of jurisdiction of the population issue to Judge
Polozola. No doubt this delivered a message to all
involved that the problem could not be resolved
within the Hamilton litigation.
; Approximately 10,000 to 12,000 detainees are
released each year. At the same time, the Sheriff
rents hundreds of beds to the Federal government
at a daily charge significantly higher than he
receives from the City and State.
6 After conducting a pre-filing investigation, the
National Prison Project and local counsel filed suit
against Sheriff Foti and the City of New Orleans
(Estavez v. Foti, No. 88-01162 "K"(5». Subsequently,
Estavez was consolidated with the old Hamilton
case, which had been inactive for years, and the
litigation proceeded under the latter caption. Even
in this posture, however, the case proceeded as a
new action, and not one seeking post-judgment
relief. One important consequence of the
consolidation was that the State of Louisiana was
joined as a defendant in the suit. Nearly 2000 of
the over 4500 prisoners are "state-ready" prisoners,
that is, convicted prisoners awaiting transfer to a
state facility. Judge Mitchell has assigned the dayto-day supervision of this case to Magistrate Alma
Chasez.

SPRING 1992 15

Book Review
Last One Over the Wall:
The Massachusetts
Experiment in Closing
Reform Schools, by
Jerome Miller (Ohio
University Press, 1991, $35.00)

Jerome Miller, author of Last One
Over the Wall, is now executive
director of the National Center on
Institutions and Alternatives.

"R

eform is always more a
matter of will than of
legislation, and most youth
and adult corrections agencies have the
capacity to reform themselves within
existing legislation and budgets. They
seldom use the means at hand and, as
the least accountable Of state bureaucracies, they maintain an entirely
reactive stance, waiting for mandates
which seem never to arrive."
-Jerome Miller

In 1969, Jerome G. Miller, an academic social worker from Ohio State
University who had practiced his
profession largely while in the U.S. Air
Force, moved to Boston to become
commissioner of the Massachusetts
Department of Youth Services. Miller
was hired to implement new juvenile
justice reforms spearheaded by the
Massachusetts Committee on Children
and Youth, an influential group of
citizen activists. Before he left the
state four years later, Miller had gained
national prominence, and an official
censure from the National Conference
of Superintendents of Training Schools
16 SPRING 1992

and Reformatories, for closing down
the Commonwealth's juvenile training
schools and reducing the number of
"youngsters" housed in secure custody.
Last One Over the Wall is the former
commissioner's account of those years.
Miller, who would later work in
Illinois and Pennsylvania before
creating the National Center on
Institutions and Alternatives (NCIA) in'
the early 1980s, went to Massachusett$
with little experience as an administt§itor, only a few ideas about how kids in
trouble with the law should be treated,
and a penchant for getting to know
firsthand the children who would be
under his agency's care. All of these
would eventually get him into trouble,
but by the time he left Massachusetts
he had established the primacy of
community care over institutional
confinement for juvenile offenders.
The closing of reform schools in
Massachusetts remains an event of
major importance in the history of
juvenile corrections.! Other factors
helped establish an environment in
which it could have happened, but it
would not have happened without
Miller.
Miller's memoir, however, is more
than an account of what happened in
one state during one period of time; it
is more than war stories from the
trenches. Indeed, what Miller gives us
in this didactic volume is a challenge
suitable for developing helpful adult,
as well as juvenile, offender programs
and policies.
Miller makes it quite clear that
impulse had much to do with what
happened in Massachusetts. A chance
meeting with a child held in solitary
confinement at the Shirley Industrial
School for Boys, for instance, was
critical in moving him to end this
barbaric practice. But other plans were
made less extemporaneously. The
Harvard Center for Criminal Justice, for
example, was hired from the outset,
prior to the decision to shut down the
juvenile corrections facilities, to
document and evaluate the Massachusetts reforms. The Harvard research
would prove useful, not only in
validating the reforms, but in providing further directions for them.
The deinstitutionalization of juveniles in Massachusetts emerged slowly.
One of Miller's first moves after
becoming commissioner was simply to
visit the facilities for which he was
responsible. What were these places
like? He was horrified by what he saw

("all the accoutrements and routines of
rabble management which occasionally
produce the personal violence that
revalidates the system").
When he went officially to the
institutions, administrators would give
their dog and pony show. But where
were the kids? Miller had to ask for
them. On occasion, he would purposely
wander into unvisited buildings on his
way off facility grounds. This is where
he found kids in solitary confinement.
Or he would c0r;<Iuct unannounced
visits. One sU~Qjvisit, which he made
with Jessie Sargent (the wife of
Governor Frank Sargent) was particularly helpful in maintaining the
Governor's support for Miller's actions.
These visits gradually helped Miller
envision what it was he wanted the
Commonwealth's juvenile justice
system to do, or not do. He gave orders
to halt degrading and harsh disciplinary measures, such as cleaning the
floor with toothbrushes, or the use of
solitary confinement. Even the more
humane agency workers felt that
isolation was necessary to maintain
discipline, but Miller boldly abolished
the practice. Instead, he encouraged
kids to call him at his office about
what was happening at institutions
with such venerable names as the
Judge Connelly Reception and Diagnostic Center in Roslindale, the Girls'
Industrial School at Lancaster, John
Augustus Hall, and the Lyman School
for Boys, the first reform school in the
country.
Miller's strategy toward
deinstitutionalization relied on the use
of what we now commonly call
alternative sentencing plans. In this
book, Miller does not discuss the design
and use of Client Specific Planning, but
he describes what are undoubtedly the
roots of this vehicle for sentencing
reform. In Massachusetts, he ordered
psychologists to work around the clock
to interview kids at "Rozzie," a decrepit
maximum-security prison for hard-core
young offenders, and quickly design
community placements for them. Years
later, in Pennsylvania, he used a
similar strategy to remove young kids
from the Camp Hill juvenile prison.
These were one-on-one exercises that
were as effective as they were efficient.
Miller found that psychologists, social
workers, and other criminal justice
practitioners were more likely to
recommend community placements if
they knew of the availability of
THE NATIONAL PRISON PROJEG JOURNAL

l

suitable program options. Given the
hollow choice of prison or probation,
these professionals, not unlike judges
at sentencing hearings, tended to
incarcerate. Given real choices,
however, they were secure in making
other decisions.
But the most important part of
Miller's reforms was that he gradually
removed financial support for the
institutions that had harmed kids for
so many years. To do so, he had to
fight the state legislature, juvenile
court judges, employee unions, his own
staff, the people who hired him, and
even some of the incarcerated kids
themselves.
All were fixed on institutions. But
Miller clear-headedly understood that
the availability of institutional beds
gave the juvenile justice system
sanction to use them. Also, he knew
that "deep-end delinquents provide the
rationale for a massive national system
of locking up juveniles." It was for
hard-core kids that Miller first found
community placements.
The importance of administrative
leadership should not be taken lightly,
particularly when administrators have

authority over agency operations.
Miller's actions were the key factor in
the Massachusetts experiment.
But other factors were also important.
Miller doesn't lay them out in orderly
fashion, but then again he doesn't
spend much time heralding his own
contributions, either. Among these
factors were existing reform legislati9n,
a generally unprofessional youth _,,'
services bureau, and an environmeiit
for change beyond legislation that}t
included support from citizen groups
(e.g., a local chapter of the League of
Women Voters), the media (particularly
The Boston Globe), certain key legislators, and the Governor.
Lastly, the juveniles themselves, and
the people who ran a variety of
nonprofit agencies, frequently on shoestring budgets and salaries, were
instrumental in bringing in results for
these reforms. In 1989, a National
Council on Crime and Delinquency
study reaffirmed earlier Harvard
findings that Miller's juvenile reforms
resulted in significantly reduced rates
of recidivism. In short, kids treated
with decency and given hope are more
likely to set themselves straight than

kids battered and bullied by indifferent or punitive handlers. II

Russ Immarigeon, a freelance writer
living in Hillsdale, New York, is a
regular contributor to the
NPPJOURNAL.
Miller argues that liberal helping professionals
can be as resistant to change as law-and-order
conservatives. The American Correctional
Association (ACA) recently released a video
cassette entitled "Juvenile Justice in the United
States: A Video J\Istory," which purports to cover
the history of iRvenile corrections. One doubts
that Miller wou1d be surprised to learn that the
video mentiorls the Lyman's School's opening in
1847 but fails to mention the school's closing, or
the person who closed it. Indeed, the failure to
even mention the Massachusetts reforms (in a
"public education" presentation designed to show
"the progress America has made in its treatment
of juveniles") vividly confirms his contention
that "the hardware and shackles crowd," as he
refers to the ACA, are still oriented towards
confinement and control rather than communitybased services and care.
I

Corrections
The follOWing corrections
should be made to "The Status
Report: the Courts and the
Prisons," published in our
Winter 1992 issue.
In Florida, the appeals
decision in Costello v. Wainwright, cited at 525 F.2d 1239,
was issued in 1976, not 1977.
In Indiana, Hendrix v.
Faulkner should be cited as 525
F.Supp. 435 (N.D. Ind. 1981) (not
as the Western District of
Indiana).
In Kentucky, the appeals
decision in Canterino v. Wilson
should be cited as 869 F.2d 948
(6th Cir. 1989).
In Ohio, the remedial orders
in the case, Taylor v. Perini,
were vacated in 1991 follOWing
a report and recommendation of
the special master.
THE NATIONAL PRISON PROJEG JOURNAL

SPRING 1992 17

.>

Dynamic N.Y. Alliance Convenes on,·,
Behalf of Inmates with AIDS
n her final "AIDS Update," former
NPP AIDS coordinator Judy Greenspan
reflected on the small but growing
network of advocates for prisoners with
HIV/ AIDS. The Alliance for Inmates With
AIDS is an example of that developing
network. With almost 20 participating
organizations in the New York City area,
the Alliance runs the gamut from the
hard-core activism of ACT UP/NY's Prison
Issues Committee to the many substance
abuse treatment programs provided by
The Osborne Association. On March 6 the
Alliance held a day-long forum on
prisoners with HIV/ AIDS.
The forum opened with the voices of
people with AIDS (PWAs) relating their
experiences with the corrections system:
voices like that of Vilma Santiago, of the
Latino Commission on AIDS, who has two
sons in prison. Vilma described the
journeys to visit her sons as particularly
devastating to her body and complicated
by the humiliation guards put family
members through.
Although Gil Serrano, a member of the
Latino Commission on AIDS and author of a
an HIV/ AIDS education booklet called
"Inmate to Inmate," recently marked his first
year out of prison, he continues to feel as
though he were in prison because he knows
that his brothers"in prison are still dying.
Serrano urged that as taxpayers, ''we need to
develop a sense of outrage..lt's incredible
what the Department of Corrections can do
and get away with." Katrina Haslip, a
cofounder of ACE (AIDS Counseling and
Education) and Education Outreach worker
with the Upper Manhattan Task Force On
AIDS stressed the special problems women
with HIV/ AIDS encounter in the prison
system. In the area of medical care she
advocated having an infectious disease
doctor and gynecologist experienced with
HIV at each facility. Haslip also described
how women are being paroled and becoming
homeless because they have no support
systems. She ended her comments urging us
to keep the pressure on the departments of

I

18 SPRING 1992

corrections to implement these programs.
The second half of the morning was a
speak-out for participants designed to
identify problems and successes in their
experience with HIV/ AIDS in the criminal
justice system. Some were success stories
like that of Mike Aboussleman, a corrections officer at the Arthur Kill Correctional Facility, who turned his concern
with HIV/ AIDS education into forming
the Committee On Prevention and
Education For AIDS (COPE). COPE
provides a wide range of services for
prisoners from one-on-one counseling to
pre-release referrals and legal information. But more often there were stories
of struggle like that of Yolanda Rosado,
the community liaison counselor for ACE
at the Bedford Hills Correctional Facility,
who focused on the stories of two women
with AIDS who died shortly after parole
because of the lack of support services,
and her own battles to get corrections
officials to prOVide adequate pre-release
services.
Haydee Zambrana of Mujeres Latinas En
Accion told of plans for a national march
on Washington, D.C. in May, focusing on
the impact of HIV/ AIDS in the Latino
community.
In the afternoon session a series of five
workshops brought many of the concerns
raised during the speak-out into strategy
sessions. Workshop topics ranged from
strategies for keeping support groups
operating to the impact of disclosing HIV
status to the parole board and ways to
advocate for prisoners who want HIV
testing. Each workshop brought a number
of observations and recommendations
back to the general body. One workshop
found peer educators more effective in
prOViding HIV/ AIDS education, but in
need of support from HIV/ AIDS social
service organizations on the outside. In
another workshop participants argued
that the empowerment model used in the
general population must be modified in
prison settings. Still another session

advanced improving medical care through
legal referrals. There was general
agreement on using St. Clare's hospital as
one possible model for providing medical
care to prisoners with HIV/ AIDS. Most
workshops also rilflched consensus that
women face a radge of problems including the CDC definition of AIDS (which
does not include opportunistic infections
specific to women), and the location of prerelease support services.
As the forum ended, participants were
quick to acknowledge how the day's events
would affect their own work. Anthony
Karagu, HIV/ AIDS service coordinator for
The Osborne Association, felt the forum was
important in a number of respects. ''First, to
bring everyone together under one roof to
map out strategies was helpful I also felt it
was quite representative with the input of
PWAs. And finally, the forum's breakdown
into workshops to share strategies and
network was helpful for me." Nancy Mahon,
director of the AIDS Prison Project for the
Correctional Association of New York,
described the forum as a "definite success in
terms of people getting together for the first
time. The evaluation forms have raved
about the importance of being with people
who care about and work in the same
areas of interest. We also developed a
better sense of what policy issues to work
on and which geographical areas are
needy, like upstate New York."
The forum has already produced results.
Adirectory of organizations serving
prisoners with HIV/ AIDS in New York
state is in the last stages of production.
Recently, Steve Machon of ACT UP/NY
received a call from an HIV/ AIDS service
organization that had been contacted by a
relative of a prisoner who was having
difficulty with the HIV testing process.
Within a short period of time, Machon
was able to put him in touch with five
different contacts in his area. And Dr.
Robert Greifinger, chief medical director
for the New York State Department of
Corrections, who had declined a meeting
with Alliance members last year, has now
agreed to meet with members this month.
Another forum is planned for midsummer.
This time participants will include parole,
corrections and probation officers. _

Jackie Walker is the Project's new AIDS
information coordinator.
THE NATIONAL PRISON PROJECT JOURNAL

ublications
The National Prison ~
Project Status Report l4ts

1990 AIDS in Prison
Bibliography lists resources

by state those presently under
court order, or those whicb'
have pending litigation~iIher
involving the entire state
prison system or major}~
institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.) Updated January 1992. $5
prepaid from NPP.

on AIDS in prison that are
available from the National
Prison Project and other
sources, including corrections
policies on AIDS, educational
~aterials, medical and legal
articles, and recent AIDS
~'g'tudies. $5 prepaid from NPP.
.
.',

AIDS in Prisons: The
Facts for Inmates and
Officers is a simply written
educational tool for prisoners,
corrections staff, and AIDS
service providers. The booklet
answers in an easy-to-read
format commonly asked
questions concerning the
meaning of AIDS, the medical
treatment available, legal
rights and responsibilities. Also
available in Spanish. Sample
copies free. Bulk orders: 100.
copies/$25. 500 copies/$100.
1,000 copies/$150 prepaid.

Bibliography of Material
on Women in Prison
lists information on this subject
available from the National
Prison Project and other
sources concerning health care,
drug treatment, incarcerated
mothers, juveniles, legislation,
parole, the death penalty, sex
discrimination. race and more.
35 pages. $5 prepaid from NPP.

The National Prison
ProjectJOURNAL, $30/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.

A Primer for Jail Litigators is a detailed manual with

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

Prisoners' Rights
Sourcebook (1980). Traces

QTY. COST

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 isnot a"jailhouse
lawyers" manual.) $20 prepaid
from NPP.

(order
from

ACLU Handbook, The
Rights of Prisoners. Guide

ACLU)

to the legal rights of prisoners,
parolees, pre-trial detainees,
etc., in question-and-answer
form. Contains citations. $7.95;
$5 for prisoners. ACLU Dept. L,
P.O. Box 794, Medford, NY

QTY. COST 11763.

"'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
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Fill out and send with check payable to:

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Address

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1875 Connecticut Ave, NW, #410
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City, State, Zip

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SPRING 1992

19

.

.....-~~~~------------------------------------~

he following are major developments in the Prison Project's
litigation program since January 16,
\. 1992. Further details of any of the listed
cases may be obtained by writing the
Project.

T

Bartkus v. Manson, a comprehensive
challenge to conditions of confinement
at Connecticut's maximum security
prison, was originally filed by the
Connecticut Civil Liberties Union in 1980
and later handled by New Haven Legal
Services. In January 1992, the Prison
Project was asked to join as co-counsel.
Trial, which was never held because of
earlier failed settlement efforts, has now
been scheduled for September 1992.
Bates v. Lynn challenges inadequate
legal access for inmates sentenced to
~. Louisiana's death row and we obtained a
favorable settlement last year. On March
10, a federal magistrate awarded plaintiffs' counsel their requested attorneys'
fees and expenses including Washington,
D.c. rates for NPP lawyers. The magistrate also applied a 15% multiplier to the

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

20

SPRING 1992

---

---

fee award, citing the risk involved in
conference on March 23 to establish
filing such a case, and the special
. " procedures for hearing the contempt
expertise required to handle this particu~' motion.
larly complicated litigation.
.
Hudson v. McMillian-On February
Denton v. Hernandez concerns the
25, 1992, the Su~eme Court of the
standard for refusing to allow a pro se
United States rul~d in a 7-2 decision
indigent prisoner to file a complaint in
that the mali(;!~s beating of Louisiana
federal court. On January 13, the
prisoner Keith Hudson by prison guards
Prison Project filed an amicus brief in
violated the Eighth Amendment to the
the Supreme Court of the United States
Constitution. The Court reversed a
on behalf of a California state prisoner. Fifth Circuit decision which required a
The prisoner had filed a series of
showing of significant injury in order
complaints in the trial court including
to prove an Eighth Amendment claim.
repeated implausible allegations of
(See p. 1 for more details.)
rape. Because the rape allegations were
without merit, the trial court dismissed
Nolasco v. Romer challenges
all of the prisoner's complaints as
overcrowding and conditions in three
frivolous, despite the possible merit of
Colorado facilities not covered by court
individual complaints. The Ninth
orders in an older case, Ramos v.
Circuit reversed the decision, and the
Lamm. In February, parties submitted
state of California sought and was
a settlement agreement which covers
granted certiorari. The Supreme Court
all Colorado facilities and requires
heard oral argument on February 20.
renovations, improved fire safety
measures, expanded medical and
Dickerson v. Castle challenges
mental health services, and the
conditions and overcrowding in
development of a comprehensive sex
Delaware's adult prisons. Due to
offender treatment program. The
renewed overcrowding, plaintiffs filed
settlement also provides for the
a new motion on January 29 seeking to
eventual release of the state's prisons
find state officials in contempt of the
from court oversight.
consent decree. The court held a status

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