A PROJECT OF THE AMERICAN C1VllllB~R'rIES UNION FOUNDATION, INC.
VOL 7, NO.3, SUMMER 1992 • ISSN 0748·2655
)\,

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ABA Report Urges Reform in Sentencing, Corrections
n the eve of the April 1992
"Corrections Summit" sponsored
by Attorney General William
Barr, the American Bar Association
(ABA) released a new report, The Use
ofIncarceration in the United States:
A Look at the Present and the Future
by Professor Lynn S. Branham. Unfortunately, the report was nearly lost in the
glare of the Summit's political motivations and arrived too late to challenge
the Bush Administration's claim that we
must choose between "more prison
space or more crime." Rather than spend
tax dollars on an expensive conference
with questionable results, Summit
organizers would have done well to
simply send participants a copy of this
comprehensive and valuable report.
The ABA report is written with
members of state and local bars in
mind, and urges them to assume
responsibility for pushing sentencing
and correctional reform. However, it
offers important food for thought for
anyone with a role in corrections, be
they lawyers, corrections officials,
community'groups, legislators, judges
or otherwise.
The report is divided into three
sections. The first one provides a clear
and detailed picture of incarceration
today. Recommendations for reform
follow in section two. The report concludes by advising state and local bars to
work for reform with suggestions on how
they might do so effectively. An Appendix
includes the full text of the ABA's Model
Community Corrections Act which was
approved by the ABA's House of Delegates
in February 1992.
One characteristic which sets this
report apart is its sense of balance and
the lack of a hidden agenda. Professor

O

Racial disparities raise questions "which go to the very heart of the integrity of the
criminal justice system," says the ABA report.

Branham has clearly heard, and more
importantly, listened to arguments and
complaints from corrections administrators, judges, lawyers and others. In
this report, she puts all the facts about
incarceration on the table, gives them a
good hard look, and asks, "How can we
do this better?"
The Current Picture

In the first section, "Where We Are
Today," Branham lays the groundwork
for the report's recommendations. She
discusses the number of people incarcerated in U.S. prisons and jails; their
age, race, ethnicity and type of offense;
how long their sentences are; and
whether they previously have been
convicted of a crime.
Branham takes the reader beyond

these statistics to show how they
translate into a typical prisoner's life
behind bars. She acknowledges the
difficulty in describing a representative
picture given all the variables involved.

IT'
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Chances are good, though, that the facility
is overcrowded, the prisoner is idle much
of the time, has little or no privacy, and
must find some way to protect himself
against physical attacks. This section
would be further enhanced by a similar
discussion of what life is like for a
typical correctional officer in an
overcrowded and understaffed facility.
Branham offers five key reasons why,
based on her research, more people are
incarcerated today.l The crime rate is
not the culprit. According to the
National Crime Survey, the level of
crime was 14.5% lower in 1990 than in
1980 and was fairly stable in the years
in between; yet, in the same ten years,
the prison population grew by 133.8%.
The population increase can be better
explained by the folloWing: 1) a higher
percentage of people are being sentenced to prison for crimes that, at one
time, either would not have been
prosecuted or would have resulted in a
non-incarcerative sentence; 2) longer
sentences are being imposed for some
crimes (though Branham points out that
sentence lengths are due for some upto-date analysis); 3) more restrictive
parole and release policies; 4) increased probation and parole revocations (Le., in 1978, 8% of prison
admissions in California were parole
violators; in 1988, 45%); and 5)
demographic factors. From 1974 to
1986, the national population experienced a double-digit increase in the
number of people in their 20s (the
prison-prone years).
The costs and benefits of all this
incarceration, under Branham's
scrutiny, yield some surprises. For
instance, in 1991, the average cost to
incarcerate a prisoner for one year was
reported as $17,545.55. However, the
report notes, this figure omits costs
such as pensio'hs for correctional
officers and contract mental health
care. Weighing all factors, the annual
expense reaches $30,000 per inmate.
What does this mean for state budgets
and for taxpayers? In Delaware, it takes
all of the state income tax paid by 18
residents to keep just one state prisoner
incarcerated for a year. In California in
1990, when the state's prison population experienced the sharpest increase
in the country, the legislature cut the
education budget by $2 billion to pay
for more prisoners.
With so many people incarcerated, is
the country safer? The answer is no, and
Branham cites supporting crime
2 SUMMER 1992

statistics and several reports on
recidivism and criminal incapacitation
as proof.
Twelve Recommendations
Having given us the bad news,
Branham follows with some good news
in the form of 12 recommendations
which "hold the promise of making our
criminal-punishment system more
effectual." Branham rescues the

recommendations from becoming mere
rhetoric by substantiating them with
detailed work plans and reports.
The recommendations-abbreviated
here-suggest that states and localities:
1. Adopt a comprehensive community
corrections act, to include a broad
range of sanctions for non-Violent
offenders to be used not only at
sentencing but also when sanctioning
parole and probation violators. The
ABA's Model Adult Community
Corrections Act, attached to the
report as an Appendix, provides a
detailed plan for developing and
implementing such a program.
2. Adopt sentencing guidelines which
include a range of community-based
sanctions.
3. Draft sentencing guidelines to ensure
that prison space is generally reserved for violent offenders.
4. Expand the use of means-based fines.
Fines are widely used with much
success in other countries.
5. Allow for a graduated response,
within a sentencing system, to a
violation of a community-based
sanction or parole. Prison need not
be the automatic response. Sanction
options, which become more severe
depending on the level of offense,
include restricted mobility in the
community, increased supervision,
special conditions, and financial
penalties.
6. Repeal mandatory minimum sentences. Branham notes, "These
statutes are the product of what has

practically become a shoving match
between politicians to demonstrate
who is the toughest on crime."
7. Prepare correctional impact statements
before enacting legislation which would
raise the number of people under
correctional supervision. These
statements should forecast the
legislation's effect in terms of prison
space, staff, programs and costs.
8. Require sentencing guidelines
commissions to draft and adjust
sentencing gUillelines which are
commensuratl("iwith the capacity of
the jurisdictiJ5h's correctional system.
9. Provide a range of programseducational, vocational, mentalhealth, substance abuse treatment,
counseling, and others-in order to
reduce recidivism. These programs
should be fully funded and of high
quality.
Branham understands that many
Americans object to the idea of providing job training to prisoners when their
own access to these programs is
limited. She offers a convincing "pay
now or pay later" argument in which

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 Prisan Project is 0 tax-exempt foundationfunded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional

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

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

TheNPPJOURNAL is available on 16mm

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

I

[
.:.j

she notes that if we don't pay for these
programs while the prisoner is incarcerated, chances are that we'll be
paying for his incarceration all over
again later on.
10.Inmates who are not going to school
full-time should work while incarcerated.
11. Develop release programs to help
ensure a prisoner's successful
return to life on the "outside."
12. Earmark at least 3-5% of a corrections budget for research to study
the system's effectiveness and costefficiency. Branham also emphasizes
the need for more research into
racial and ethnic disparity in the
criminal justice system. Evident
disparities raise "questions...which
go to the very heart of the integrity
of the criminal justice system."

corrections and sentencing committees;
working with ABA committees and other
organizations; offering to educate
judges, defense attorneys and prosecutors on community-based sanctions;
educating the public about corrections
and sentencing issues; and, finally,
monitoring corrections legislation and
operations.

The Role of State and Local Bars

More Valuable Information

Betsy Bernat is editorial assistant of
the NPP JOURNAL.

The ABA report concludes by urging
members of state and local bars to
shoulder their share of responsibility
toward implementing correctional
reform. They can do so by establishing

Thirteen pages of excellent references
follow the body of the report. Branham
concludes the ABA report by urging an
overhaul of sentencing and corrections
systems. Such an overhaul, she notes,

I This section opens with a useful explanation of why
there is so much variation between the crime rates
reported by the National Crime Survey and the
Uniform Crime Report.

must stress "accountability: ...accountability of offenders to their victims and
society and accountability of government officials...to the public."
Finally, she says, "Reform only occurs
through hard work and over time. And
now is the time for the hard work of
reforming the nation's sentencing and
corrections systems to begin." •

Citizens Protest Taking of Farmland
for Federal Prison Site
"A 900-acre tract near Elkton
[OhioJ has been chosen as the site for
a 2, 750-bed federal prison to be built
here, bringing with it between 650
and 850 jobs that pay an average of
$26,000 a year."

n Janlhlry 9, 1992, landowners
and farmers in Columbiana
County, Ohio awoke to this news
on the front page of the local Morning
journal. The newspaper article further
stated that, since the Bureau of Prisons
requires that the property for the prison
be donated, the county would offer
property owners fair market value for
their land. Should landowners refuse
the offer, the county could still confiscate the land through the right of
eminent domain. This will happen, say
the landowners, over their dead bodies.
The proposed federal prison has
created a controversy and pitted
Columbiana Countians against each

O

THE NATIONAL PRISON PROJECT JOURNAL

other. Since January, county and state
officials have come under heavy fire
from landowners as it has become
evident that many of the officials knew
of the plans to build before the announcement was made public. Affected
landowners were kept completely in
the dark.
In fact, opponents of the prison
accuse officials of secretly courting the
Federal Bureau of Prisons (BOP) to
secure the property as the site of the
prison, then deliberately waiting to
announce the choice publicly until the
deed was as good as done.
Residents opposed to the building of
the prison also claim that Morning
journal readers are not getting objective reporting, and that the newspaper's
reports are intended to sway the
citizenry in favor of the prison. The
paper's publisher, John Burgess, has
been a strong and public supporter of
the prison. Indeed, a review of the

The Use ofIncarceration in the
United States\ A Look at the Present
and the Futur~, by Professor Lynn S.

Branham, is ~ailable from ABA Order
Fulfillment,"750 North Lake Shore
Drive, Chicago, IL 60611, 312/988-5555
for $8.75 prepaid ($7.00 for ABA Criminal Justice Section members), checks
payable to American Bar Association.
Please request Order #5090051.

paper's headlines suggests a bias in
favor of the building of the prison:
"County's economy will get big
boost;"
"County effort [to bring prison] draws
praise from governor;"
"Prison will mean 1,000 jobs for
county;"
"Opposition could spell prison loss,
officials say;"
"Council celebrates progressive start"
(refers to "its first accomplishmentluring a federal prison to a site outside
of Elkton").
Landowners would undoubtedly write
the headlines differently, if they could.
They are fighting hard to keep their
land, and they vow that the federal
government will never take it from
them. They have formed a grassroots
organization called Columbiana
Countians Against the Prison (CCAP),
and are, according to their literature,
"united in our love and care and
protection of the land that feeds our
entire nation."
CCAP members claim that the BOP
refuses to give straight answers to their
many questions; that the information
they do get changes almost weekly, and
that the resulting confusion only adds to
(cont'd on page 4)

SUMMER 1992 3

Farmers in Columbiana County plowed this message into their land for the benefit of government photographers taking
pictures for an environmental impact statement.

their feelings of frustration and helplessness. The Bureau's estimate of the
number of affected property owners has
gone from the originally stated 12, to 58
only two months later. The number of
prisoners they claim will be held there
has also varied, from the original 2,750
to the latest count of 4,800.
Loss of Family Farmland

where I figured I would spend the rest
of my life. Now, 1 don't know."
"It's one thing," wrote Shirley
Mondak in the local paper, "to lose a
place because you've fallen behind in
taxes, but these families have hung on
and kept their farms and properties
despite some very staggering odds.
They've done it the American wayearning the land and working the land,

"We're nothing to you guys," Lori
Garn angrily told county commissioners
at one January meeting. Garn's family
owns 82 acres on Scroggs Road, which
runs through the property.
"There's a lot of me in that ground up
there," said Richard Scroggs, who lives
in the family home that was built in
1832 on the road named after his
ancestors.
Morris Boles, 62, lives near the
cemetery on Church Hill Road where his
parents and grandparents, who had also
farmed the land, are buried. "I remodeled the house several years ago and got
it all lined up for my retirement," says
Boles of his 72-acre farm. "This was

maintaining its use and its beauty."
There are two historical homes
located on the site and over 600 acres
of tillable, fertile farmland.
Bureau officials have apparently
rej ected a nearby site which is reclaimed mining land because of the
distance from sewage hookups and
water resources.

4

SUMMER 1992

Jobs

State and county officials are looking
forward to an economic boom brought
about by the building of the prison.
According to county commissioner Don
Lowe, other areas where federal prisons
have been built, such as Lewisburg,
Pennsylvania, have boomed economically.
Another commissioner said, "This is
one of the greatest shots in the arm
we've had in a long time. This might be
a better benefit than Lordstown (GM
plant) because this is recession-proof."
County commissioner John Wargo
states, "I think financially the impact will
be profound." Federal officials have told
Wargo that two new "outside" jobs are
usually generated for every prison job.
Columbiana Countians Against
the Prison (CCAP)

Every Monday night CCAP holds
strategy meetings at the County Career
Center, drawing 100-150 locals who are
upset about the prison. An attorney who
specializes in farmers' rights has been
hired by CCAP. The group has also
THE NATIONAL PRISON PROJECT JOURNAL

Lori Garn, who owns 82 acres in the vicinity of the planned prison, speaks out at a local meeting.

formed eight committees, begun a petition
drive by citizens and businesses, started a
public information campaign, mounted
store displays, and initiated a speakers'
bureau. Aresearch committee was
formed to ensure the accuracy of information being disseminated. One member
said, "We used to have lives here. Now all
we do is work on this."

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The Bureau of Prison's View
"We are sensitive to their concerns,"
said Debra Hood, site selection and
environmental review specialist for the
BOP, "but the Bureau has a mission. With
the overcrowded conditions in the federal
prisons, we have to look at expansion."*
When asked why the Bureau picked
the Elkton site in Columbiana County for
the new prison, Hood told the NPP
JOURNAL that county and state offiCials,
as well as a congressional delegation,
had solicited the Bureau for this site. In
addition, she said that BOP projections
show that "the largest number of federal
offenders will come from their region."
She said that the level of resistance to
THE NATIONAL PRISON PROJE0 JOURNAL

the prison that they have encountered
to date in Columbiana County is not
unusual. "It's the 'Not in My Back Yard'
syndrome," said Hood. "To us, opposition is opposition. The final decision on
where to locate the prison rests with
[Bureau of Prisons] Director Quinlan."

Environmental Concerns
The fact that the land belongs to them
is not the only reason CCAPers are
opposed to the prison site, however.
CCAP also has questions about the
impact of a 4,800-bed prison on the
water supply, sewage and utility

availability, fire protection (the area is
served by one small volunteer fire
department), and deep mines.An
environmental impact statement done by
the government should be available for
public review by the late fall.
Growing Anger
from Local Residents
At more than one meeting, furious
crowds of 250-300 homeowners, all
who live either on the site or its
perimeter, have gathered to voice
opposition to the prison.
"So we're screwed," yelled one man.
"Dictators," shouted another over and
over.
In addition to petition drives, confrontational meetings, strategy sessions
with attorneys, and sophisticated public
education campaigns, CCAP members
have also relied on traditional organizing methods with an Ohio flair to them.
To raise money for their cause they have
organized pig raffles and held rummage
sales and bake sales.
(cont'd on page 14)

SUMMER 1992 5

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A PROJECT OF THE AMERICAN C1VllllBERTIE~,UNION FOUNDATION, INC.
VOL 7, NO.3, SUMMER 1992 • ISSN 0748-6~55

Highlights of Most
Important Cases
Exhaustion of RemedieslFederal
Officials and Prisons!Access to
Courts
Prisoners' remarkable winning (or at least
non-losing) streak in the 1991-92 Supreme
Court term continued in McCarthy v.
Madigan, 112 S.Ct. 1081 (1992).
In previous decisions this term, the
Supreme Court refused significantly to worsen
the law governing use of force (Hudson v.
McMillian) or the modification of injunctive
judgments governing jail conditions (Rufo v.
Inmates ofthe Suffolk County]ail). In
McCarthy, the Court held unanimously (with
Chief Justice Rehnquist and Justices Scalia and
Thomas concurring in the result) that federal
prisoners seeking only damages in a "Bivens
action" need not exhaust their administrative
remedies in the Bureau of Prisons, which do
not prOVide for damages, before resorting to
federal court. (Constitutional damage suits
against federal officials are commonly called
"Bivens actions" after the Supreme Court case
that allowed them despite the absence of an
authorizing statute similar to 42 U.S.C. §1983.
See Bivens v. Six Unknown Federal Narcotics
Agents, 403 u.S. 388 [1971].)
It has long been established that state
prisoners proceeding under §1983 need not
exhaust administrative remedies, except in a
limited category of cases governed by the Civil
Rights of Institutionalized Persons Act. Patsy
v. Board ofRegents ofState ofFlorida, 457
u.S. 496 (1982). Federal prisoners, however,
have consistently been subject to an administrative exhaustion requirement, at least in
cases where the relief the prisoner sought
could be obtained through the administrative
process. See Lyons v. U.S. Marshals, 840 F.2d
202,204 (3d Cir. 1989); Payne v. Day, 440
F.Supp. 785, 787-88 (W.D.Okla. 1977) and
cases cited.
6 SUMMER 1992

The rule the Court overturned in
McCarthy went one step further and
required prisoners to exhaust administrative
remedies even if those procedures could not
prOVide the money damages the prisoner
sought. This rule has its origins in Brice v.
Day, 604 F.2d 664 (10th Cir. 1979), cert.
denied, 444 u.S. 1086 (1980), and was
justified by the supposed necessity preliminarily to develop the facts so the court could
determine whether permitting a "Bivens
action" was appropriate. The Brice court
also stressed the need to reinforce the
authority of prison officials and their chain
of command.
Brice was decided before Carlson v.
Green, 446 u.S. 14 (1980), in which the
Supreme Court first upheld the availability
of a Bivens action to a prisoner claiming an
Eighth Amendment violation, and tacitly
affirmed that Bivens is presumptively
applicable to all constitutional claims.
Before Carlson, some lower courts had
proceeded gingerly in extending the Bivens
doctrine beyond the Fourth Amendment
police misconduct context of Bivens itself.
Neverthless, even at the time, the Brice
holding seemed to some more like an
exercise in docket-clearing than a reasoned
adjudication, and it was not widely followed.
Justice Blackmun's opinion in McCarthy
canvasses the law of administrative exhaustion at some length, but its analysis is
ultimately simple. "Where Congress
specifically mandates, exhaustion is
required.... But where Congress has not
clearly reqUired exhaustion, sound judicial
discretion governs." 112 S.Ct. at 1086. This
judicial discretion reqUires consideration of
the courts' '''virtually unflagging obligation'
to exercise the jurisdiction given them" by
Congress, 112 S.Ct. at 1087 (citation
omitted), and balancing of "the interest of
the individual in retaining prompt access to
a federal judicial forum against
countervailing institutional interests favoring
exhaustion." Id.
Applying these principles, the Court found
that Congress had not specifically mandated
exhaustion. The Court refused to find an
exhaustion requirement in the general

delegation of autjlOrity to the Attorney
General to adm~ister the federal prison
system. Nor was' it convinced by prison
officials' rather perverse argument that the
Civil Rights of Institutionalized Persons Act,
which applies only to state prisoners,
somehow supports an exhaustion requirement for federal prisoners as well.
Balancing the interests at stake, the Court
held that the prisoner's interest in avoiding
the exhaustion requirement is great. The
risk of forfeiting a claim by missing one of a
succession of rapid filing deadlines,
combined with the unavailability of damages
in the administrative scheme, creates a
situation in which the prisoner seeking only
damages "has everything to lose and nothing
to gain" from an administrative exhaustion
requirement. 112 S.Ct. at 1090. Nor does
the Bureau of Prisons have weighty interests
in favor of administrative exhaustion, other
than its generalized interest in "encouraging
internal resolution of grievances and in
preventing the undermining of its authority
by unncessary resort by prisoners to the
federal courts." 112 S.Ct. at 1092. The
subject matter of the suit-failure to
provide medical care-has little bearing on
the Bureau's ability to control and manage
the prisons, and the Bureau "does not bring
to bear any special expertise" on the issues
presented in the case.
The McCarthy holding is limited to those
cases in which the plaintiff seeks damages and
nothing else; the plaintiff conceded that the
analysis would be different if his complaint
sought an injunction, and the lower federal
courts agree that exhaustion is required in
such cases. Terrell v. Brewer, 935 F.2d 1015,
1019 (9th Cir. 1991) and cases cited.
McCartby's implications go beyond its
narrow holding.
First, McCarthy should have a significant
impact on the application of the Civil Rights
of Institutionalized Persons Act ("CRIPA")
to the claims of state prisoners. At least one
lower court has held that CRIPA reqUires
prisoners seeking damages to exhaust
grievance procedures that do not provide
for damages. Martin v. Catalanotto, 895
F.2d 1040, 1042 (5th Cir. 1990). Justice
THE NATIONAL PRISON PROJECT JOURNAL

----------_._-----

Blackmun in McCarthy observed that CRIPA
requires exhaustion only of "effective
administrative remedies" and makes clear
his view (supported by earlier observations
by the Department of Justice) that an
administrative remedy must provide
damages to be deemed "effective" relative to
a damage lawsuit. 112 S.Ct. at 1089 and n.
4. Since this discussion is integral to the
Court's dismissal of CRIPA as supporting a
federal prisoner exhaustion requirement, it
cannot be dismissed as dictum, and appears
clearly to overrule Martin v. Catalanotto.
Second, the Court's opinion gives no
credence to the growing hostility to prisoner
claims as a class, readily apparent in the
lower courts after eleven years of purposefully conservative judicial appointments.
See, e.g., Long v. Collins, 917 F.2d 3,4
(5th Cir. 1990) (referring to "current
misallocation of social resources toward
excessive prisoner litigation"); Martin v.
Catalanotto, 895 F.2d at 1040 (complaining about "inund[ation]" with prisoner
claims); Scher v. Purkett, 758 F.Supp.
1316,1317 (E.D.Mo. 1991) (denouncing
"inmate knavery" and "malcontent inmates"
complaining about "petty deprivations").
But the Court in McCarthy treats the technical
exhaustion question in a technical manner
without reference to any perceived problem
presented by prisoner claims as a class.
(Indeed, so does Chief Justice Rehnquist's
opinion concurring in the result.)
More pointedly, the McCarthy Court
reaffirmed the view it stated in 1980 in
Carlson v. Green that the Bivens remedy
should be no less available to prisoners than
to other litigants:
... [Rjespondents appear to confuse the
presence of special factors with any
factors counseling hesitation [in
allowing a Bivens suit]. In Carlson, the
Court held that "specialfactors" do
not free prison officials from Bivens
liability, because prison officials do
not enj8Y an independent status in
our constitutional scheme nor are they
likely to be unduly inhibited in the
performance oftheir duties by the
assertion ofa Bivens claim.
112 S.Ct. at 1090 (citation omitted)
(emphasis in original).
Finally, a throwaway line in the McCarthy
opinion may ultimately influence the
development of the law of prisoners' access
to courts. In describing the danger of
procedural forfeiture of claims posed by the
Bureau of Prisons' administrative remedy
scheme, the Court noted:
The 'first" of "the principles that
necessarily frame our analysis of
prisoners' constitutional claims" is
THE NATIONAL PRISON PROJECT JOURNAL

that 'federal courts must take
cognizance of the valid constitutional
claims ofprison inmates." Turner v.
Safley,.... Because a prisoner ordinarily
is divested ofthe privilege to vote, the
right to file a court action might be
said to be his remaining "most
;'
fundamental political right, becausfJ;
preservative ofall rights." Yick Wo:y.
Hopkins,....
. .
112 S.Ct. at 1091.
.
)•.t,
The important question that may b~;;
affected by this observation is the relationship between the "reasonable relationship"
standard, articulated in recent Supreme
Court decisions involVing prisoners' First
Amendment and substantive due process
claims, and the requirement of Bounds v.
Smith, 430 U.S. 817, 822 (1977), that
prisoners' means of access to courts must
be "adequate, effective, and meaningful."
The Court held in Turner v. Safley, and has
reiterated forcefully, that the reasonable
relationship standard "applies to all
circumstances in which the needs of prison
administration implicate constitutional
rights." Washington v. Harper, 494 U.S.
210,224 (1990). Under the Turner
standard, the plaintiff must "point to an
alternative that fully accommodates the
prisoner's rights at de minimis cost to valid
penological interests.... " 482 U.S. at 91; see
Jordon v. Gardner, 953 F.2d 1137, 1141
(9th Cir. 1992) (plaintiff must suggest
"costless alternative"), rehearing granted.
F.2d, 1992 WI. 155760 (9th Cir., July 7,
1992); Blankenship v. Gunter, 898 F.2d
625, 628 (8th Cir. 1990) (alternatives
requiring "little or no effort" required). But
anyone familiar with prison operations
knows that accommodating the right of
court access is one of the most expensive
services that prisoners receive, because of
the inordinate costs of purchasing and
maintaining law libraries or providing
trained legal assistance and the administrative difficulties of making either alternative
meaningfully available to all prisoners
(including segregated populations) who
require them. If the Turner standard were
applied literally to court access claims, and
Bounds deemed limited by it, prison officials
might well be permitted severely to curtail
their law library or legal assistance programs.
To date, courts have not taken that
approach. Indeed, at least two courts have
explicitly rejected the application of Turner
to court access claims, albeit for different
reasons.
In Griffin v. Coughlin, 743 F.Supp. 1006,
1022 n. 15 (S.D.N.Y. 1990), the court held
that the Turner factors are appropriately
applied only to those rights "for which the

----~----------

original interpretation arose outside a
prison setting," unlike court access, a right
that is chiefly an artifact of the restrictions
imposed by incarceration. The problem with
this argument is that there are plenty of
court access cases that arise outside prison.
See, e.g., California Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508, 513
(1972); Chrissy F. by Medley v. Mississippi
Dept. ofPublic Welfare, 925 F.2d 844, 851
(5th Cir. 1991); Harrison v. Springdale
Water and Sewer Commission, 780 F.2d
1422, 1427-~ (8th Cir. 1986); Bell v. City
ofMilwauke'(j, 746 F.2d 1205, 1260-61 (8th
Cir. 1984) ./fhe historical accident that
prisoners' court access cases may have been
decided earlier than those of non-prisoners
hardly seems a convincing basis for
distinguishing the right to court access from
other rights in which the time sequence was
different. Moreover, the premise that the
"original interpretation" of the right of
court access arose in prison cases is itself
questionable. Some courts have traced the
right (if not the precise phrase "access to
courts") as far back as 1907. See Ryland v.
Shapiro, 708 F.2d 967,971 (8th Cir. 1983),
citing Chambers v. Baltimore & Ohio
Railroad, 207 U.S. 142, 148 (1907).
In Abdul-Akbar v. Watson, 775 F.Supp.
735,748 (D.Del. 1991), the court held that
Turner does not apply because the right of
court access places affirmative obligations
on prison officials, and the Turner standard
applies only to restrictions on rights. This
distinction, too, is problematical. In the
regimented setting of prison life, the
exercise of most rights-including correspondence, marriage, and religious
observance, to which the Supreme Court has
already applied the Turner standardplaces affirmative obligations on prison
offiCials, e.g., to hire clergy and prOVide for
delivery of mail.
McCarthy v. Madigan prOVides support at
least in dictum for a third approach: that the
fundamental role of court access in
preserving all rights makes it qualitatively
different from other rights and justifies
excepting it from the "one size fits all"
approach of Turner and Washington v.
Harper. This approach has the virtue of
concreteness and practicality and does not
rely on distinctions that may not survive
close analysis.

In Forma Pauperis
Prisoners' Supreme Court string ran out
in Denton v. Hernandez, 112 S. Ct. 1728
(1992), in which the Court tried and
seemingly failed to give content to its prior
holding that "claims describing fantastic or
delusional scenarios" are sufficiently
SUMMER 1992 7

"baseless" to be considered frivolous, and
therefore ineligible for in forma pauperis
status, under 28 U.S.C. §1915(d). See
Neitzke v. Williams, 490 U.S. 319, 327-28
(l989).
Mr. Hernandez had filed several civil rights
suits alleging that he had been drugged and
raped 28 times by both inmates and staff
members in various California prisons. He did
not claim to remember any of these incidents,
but inferred most of them from the presence
of needle marks on his body and fecal and
semen stains on his clothes. However, three of
the incidents were supported by affidavits
from other prisoners who stated that they
witnessed the plaintiff being sexually assaulted
by other prisoners.
The district court dismissed the plaintiff's
claims as frivolous on the ground that,
considered together, his allegations were
"wholly fanciful." Adivided panel of the Ninth
Circuit reversed, with one judge holding that a
claim may not be dismissed as frivolous on
factual grounds unless the factual allegations
are in conflict with facts that are subj ect to
judicial notice. 861 F.2d at 1426. One judge
concurred in the result on procedural
grounds, and the other panel member (a
Third Circuit judge sitting by designation)
dissented, emphasiZing that the plaintiff had
been transferred from prison to a mental
hospital for psychiatric treatment and arguing
that the purpose of prisoner civil rights
actions "should not be prostituted by the
hallucinations of a troubled man."
The Supreme Court granted certiorari and
vacated the judgment in light of Neitzke v.
Williams, 490 U.S. 319 (l989). On remand
the appellate judges adhered to their views,
with one modification: the author of the
majority opinion stated the general standard
for dismissal as "delusional" or "hallucinatory" is whether the complaint "rests upon
facts which the court knows could not have
occurred." Contradiction of judicially
noticeable facts is "one useful standard" in
determining wh~her allegations are
"fanciful." 929 F.2d at 1376. The Supreme
Court again granted certiorari "to consider
when an in forma pauperis claim may be
dismissed as factually frivolous under
§1915(d)." 112 S.Ct. at 1732.
The Supreme Court vacated and remanded, rejecting the appeals court's
reasoning and stating that "a finding of
factual frivolousness is appropriate when
the facts alleged rise to the level of the
irrational or the wholly incredible, whether
or not there are judicially noticeable facts
available to contradict them." 112 S.Ct. at
1733. However, the Court provided little
guidance to the lower courts in determining
whether allegations are "irrational,"
8 SUMMER 1992

"incredible," "fanciful," "delusional" or
"hallucinatory." It stated that "the district
courts, who are 'all too familiar' with factually
frivolous claims,...are in the best position to
determine which cases fall into this category."
Id. at 1734. Accordingly, it held that the
appeals court had erred by reviewing the
district court's finding of frivolousness de
novo, and should instead have reviewed the·,case only for an abuse of discretion. The ca~~
was remanded for "proceedings consistent 'jx
with this opinion." It may still be open to thll
appeals court to find that the district court
did abuse its discretion.
'
Thus, after two Ninth Circuit opinions and
two trips to the Supreme Court, there is still
no resolution of whether this case, filed in
1984, will be permitted to proceed in forma
pauperis. Nor has the Supreme Court
provided any meaningful guidance to the
lower courts in making the initial decision
of factual frivolousness.
The difficulty of this question in some
cases cannot be overstated, since the reality
of American prison life approaches the
"fantastic" or "delusional" more often than
anyone wishes to acknowledge. See, e.g.,
Parrish v. Johnson, 800 F.2d 600,605 (6th
Cir. 1986) (awarding damages against
officer who verbally taunted paraplegic
prisoner, waved a knife in his face, and
extorted food from him); Oses v. Fair, 739
F.Supp. 707, 709 (D.Mass. 1990) (awarding
damages to a prisoner against an officer
who struck him with a gun, stuck the gun
barrel into his mouth, and made him kiss
the officer's wife's shoes).
The practical effect of the decision may be
to insulate from review unjustified dismissals of possibly meritorious prisoner
complaints. The federal appeals courts
regularly reverse lower court decisions
holding prisoner claims (usually pro se
complaints) frivolous even though they
clearly state well-recognized constitutional
claims. See, e.g., LaFevers v. Saffle, 936
F.2d 1117,1119-20 (lOth Cir. 1991)
(denial of religious diet); In re Cook, 928
F.2d 262 (8th Cir. 1991) (denial of medical
care); Frazier v. DuBois, 922 F.2d 560,
561-62 (lOth Cir. 1990) (transfer in
retaliation for constitutionally protected
activities); Abdul-Akbar v. Watson, 901
F.2d 329, 334 (3d Cir. 1990 (denial of
access to courts); Moreland v. Wharton,
899 F.2d 1168,1170 (11th Cir. 1990)
(denial of medical care); Lawler v.
Marshall, 898 F.2d 1196, 1199 (6th Cir.
1990 (knOWing failure to protect from other
inmates). It appears in many such cases that
the district court simply paid too little
attention to the actual allegations of the
prisoner's complaint, did not seriously

consider their legal viability, or made
credibility judgments that are not appropriate at that stage of the proceeding. See
Brownlee v. Conine, 975 F.2d 353, 355
(7th Cir. 1992) (Posner, J.) ("Most
prisoner civil rights cases are frivolous, but
district judges, busy as they are, must not
assume that all are and dismiss them by
note. They may not throw out the haystack,
needle and all.")
The Supreme Court's endorsement of a
less exacting standard of appellate review
will most probablYllead to more affirmances
of such dismissal~ resulting both in
injustice to the .alfected individuals and to a
further deterioration of quality control in
the face of a significant pattern of perfunctory lower court adjudication.

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Telephones/Assistance
of CounseVMedical Care
Tucker v. Randall, 948 F.2d 388 (7th Cir.
1991). At 390-91:
Denying a pre-trial detainee access to
a telephone for four days would
violate the Constitution in certain
circumstances. The Sixth Amendment
right to counsel would be implicated if
plaintiffwas not allowed to talk to his
lawyer for the entire four-day
period.... In addition, unreasonable
restrictions on prisoner's [sic]
telephone access may also violate the
First and Fourteenth Amendments.
Deliberate nontreatment of broken ribs and
hand for nine months presents a clear Eighth
Amendment violation. The plaintiff is unable
to investigate personally because he is in a
different facility from the one in which the
claim arose. The case will involve conflicting
medical evidence. For these reasons, counsel
should be appointed on remand.
Searches-Person-Visitors
and Staff
Cochrane v. Quattrochi, 949 F.2d 11 (lst
Cir. 1991). Strip searches of visitors must
be justified by "some as-yet undefined 'level
of individualized suspicion. ", (Citation
omitted.) The plaintiff was subjected to a
strip search when visiting her father,
allegedly because a confidential informant
had indicated that she had smuggled in
drugs. The plaintiff's father had previously
accused the defendant of providing him with
THE NATIONAL PRISON PROJECT JOURNAL

drugs and the defendant had allegedly
responded, "I'm going to get you for that."
Adirected verdict for the defendant after
the plaintiff's case was improper. A
reasonable jury could have found that the
strip search was conducted in retaliation for
the plaintiff's father's allegations, and
therefore without individualized suspicion,
based on the plaintiff's testimony plus the
defendant's testimony that he could not
remember the name of the informant until
the morning of the trial, and the fact that he
vouched for the informant's credibility only
in general terms.

Procedural Due Process-Property
Freeman v. Dept. ofCorrections, 949
F.2d 360 (10th Cir. 1991). The plaintiff
alleged that prison officials confiscated his
stereo and refused to return it, his administrative grievances were unsuccessful, and
the small claims court never responded to
his suit despite repeated inquiries. Subsequently, prison officials induced him to
drop his suit by promising to give him his
stereo back, but did not do so.
The plaintiff's due process claim should not
have been dismissed as frivolous. He set forth
"specific facts suggesting that the state postdeprivation remedies were effectively denied
to him." (362) The existence of a statutory
remedy may create a presumption of adequate
due process, but it is not conclusive.
Personal PropertylReligionl
Appointment of CounsellEqual
ProtectionlProcedural Due Process
Abdullah v. Gunter, 949 F.2d 1032 (8th
Cir. 1991). The plaintiff tried to donate $2
to a mosque in Lincoln, Nebraska, and
prison officials forbade the donation
pursuant to policy.
The district court should have appointed
counsel. Once the court determines that a
claim is neither frivolous nor malicious, the
court must determine the plaintiff's need for
counsel and-the benefit to plaintiff and the
court from the assistance of counsel. This
inquiry is governed by "the factual complexity of the case, the ability of the indigent to
investigate the facts, the existence of
conflicting testimony, the ability of the
indigent to present his claim and the
complexity of the legal issues." (1035,
citation omitted.) The plaintiff had the
burden of showing that the policy was not
reasonably related to legitimate penological
interests. Since there were genuine issues of
material fact as to some of the Turner
factors, the case was both legally and
factually complex. The plaintiff lacked
sufficient resources to investigate the
relevant facts, e.g., "the extent to which the
THE NATIONAL PRISON PROJECT JOURNAL

prison policy actually controlled the flow of
inmate funds and illegal activities, the
impact of permitting Zakah on the prison
system, and the existence or absence of
ready alternatives to the regulation." (1036)
The fact that the case was to be tried to a
jury also supported the appointment of
counsel.

Use of ForcelDiscovery/.~
Appointment of Counsel
,
),.(
Murphy v. Kellar, 950 F.2d 290 (5tn;Cir.
1992). The plaintiff alleged that as a result
of his filing of grievances he was beaten and
otherwise abused. The district court
dismissed because he could not sufficiently
identify the defendants. However, he
prOVided some identifying information and
explained that he could not do better
because they were not wearing their name
tags and because he was punished for his
efforts to identify them more fully. The .
district court is directed to allow him to
conduct discovery, e.g., of duty rosters and
personnel records.
The district court is also directed to
consider appointing counsel based on the
fact that "Murphy is a prisoner and those he
is trying to identify are prison officials" and
"competent discovery would allow the court
to efficiently and conclusively determine
whether Murphy is able to adequately
identify his alleged attackers.... "
Medical Care/Damages/Jury
Instructions and Special Verdicts
Warren v. Fanning, 950 F.2d 1370 (8th
Cir. 1991). The plaintiff complained for a
year about a foot problem before the
prison'S contract physician sent him to a
specialist, who rendered a different
diagnosis and provided different treatment.
The contract physician's trial testimony
"reveals an attitude towards Warren's
medical needs that reasonably could be
viewed as indifferent, if not contemptuous."
(1373) Ajury verdict finding an Eighth
Amendment violation is therefore upheld.
Ex Post Facto Laws/Good Time
Arnold v. Cody, 951 F.2d 280 (10th Cir.
1991). The plaintiff was provided with
"emergency time credits" under the
Oklahoma Prison Overcrowding Emergency
Powers Act in effect at the time of his
offense. He was then deprived of them by
subsequent statutory amendment which
denied those credits to persons who have
been denied parole. These emergency
credits would be applied only in the event of
a future overcrowding emergency.
The statutory amendment constituted an ex
postfacto law as applied to the plaintiff and

he was entitled to have his emergency credits
calculated as of the time of the offense.

Pre-Trial Detainees/Protection
from Inmate AssaultlDiscovery
Dean v. Barber, 951 F.2d 1210 (11th Cir.
1992). The district court should not have
granted summary judgment without first
ruling on the plaintiff's motion to compel
discovery, e.g., the production of the jail's
classification procedures and history of
violent incidents in the jail.

"

Law Librad~s and Law Books
" 951 F.2d 1504 (9th Cir.
Gluth v. Kangas,
1991). Since the defendants submitted no
evidence of the actual operation of their
policy, and the plaintiffs submitted unrebutted
evidence of unconstitutional conditions,
summary judgment was properly denied to the
defendants and granted to the plaintiffs.
Inmates denied physical access to the law
library are entitled to help from trained
legal assistants (n. 1). Defendants' failure to
establish any qualifications or provide any
training for legal assistants entitled the
plaintiffs to summary judgment. An injunction requiring training of inmate paralegals
was not an abuse of discretion.
Undisputed evidence of arbitrary denials
of, and restrictions on, law library access
entitled the plaintiffs to summary judgment.
At 1508: "It is the state's burden to provide
meaningful access and to demonstrate that
its chosen method is adequate."
Apolicy that "forces inmates to choose
between purchasing hygienic supplies and
essential legal supplies, is 'unacceptable. '"
(1508) Under the policy, inmates were
entitled to indigent status if they had less
than $12 in their accounts and their income
for the previous 30 days had not exceeded
$12. It cost at least $46 to purchase
necessary personal items and legal supplies
and inmates had to purchase hygiene items
in order to avoid punishment.
The district court did not abuse its
discretion in ordering an indigency
threshold of $46 and a minimum amount of
supplies for indigents. At 1510:
While the Constitution does not
require any particular number ofpens
or sheets ofpaper, it does require
some.... The district court acted within
its discretion when it concluded that
numerical minimums are the best way
to ensure that indigent inmates get the
required pens and paper.
Since the "core Bounds requirements"
are not involved in the indigency policy
claim, the plaintiffs were reqUired to prove
actual injury. At n. 2: This requirement was
met by their uncontroverted allegation that
SUMMER 1992 9

"[nl on-indigent inmates without funds have
cases that go unfiled or have been dismissed
due to the high cost of postage, legal copies,
and legal supplies."

Procedural Due ProcessVisiting/Crowding
Patchette v. Nix, 952 F.2d 158 (8th Cir.
1991). Regulations providing for specific
visiting hours, combined with other
regulations providing that visiting procedures may be temporarily modified or
suspended under certain specified circumstances ("riot, disturbance, fire, labor
dispute, space restriction, natural disaster,
or other extreme emergency"), created a
liberty interest protected by due process.
The court does not say what process was
required in this case. Ordinarily, due
process reqUires procedures of some sort,
but the main concern of this opinion is
whether the substantive standards in the
regulation were followed.

Religion-Practices
McKinney V. Maynard, 952 F.2d 350 (lOth
Cir. 1991). The Native American plaintiff
alleged that he was denied his medicine bag,
required to cut his hair, denied an exemption
from the grooming code, and denied the
right to build a sweat lodge. His claim
should not have been dismissed as frivolous,
since prisoners were permitted to possess
artifacts of other religions, and since the
plaintiff alleged he was denied all means of
religious expression.

Crowding/Summary Judgment
Williams v. Griffin, 952 F.2d 820 (4th
Cir. 1991). The plaintiff's verified complaint, which described allegedly unconstitutional prison conditions, was based on
personal knowledge, and set forth specific
admissible facts, should have been considered in response to defendants' summary
judgment motion.
At 824-25: ...

is clear that double or triple ceiling
ofinmates is not per se unconstitutional... But, overcrowding accompanied by unsanitary and
dangerous conditions can constitute
an Eighth Amendment violation,
provided an identifiable human need
is being deprived.
Allegations of crowding combined with
unsanitary conditions, insufficient showers,
flooding with sewage from leaking toilets,
deprivation of blankets and coats, and
infestation of insects and vermin raised a
genUine factual issue under the Eighth
Amendment.
The plaintiff's failure to allege harm
It

10 SUMMER 1992

resulting from the crowded and unsanitary
conditions did not reqUire dismissal of his
complaint. At 825: "It seems apparent that
psychological harm could be inferred,... , as
could an increased likelihood of illness and
violence."
,
Evidence that prison officials had been
placed on notice of unlawful conditions
supported a finding of deliberate indiffer- :.;ence. At 826: "... [0 1nee prison officials
become aware of a problem with prison i:,;
conditions, they cannot simply ignore the /~
problem, but should take corrective action
when warranted." The evidence consisted of
published reports concerning prison
conditions, grievances that the plaintiff and
other prisoners had allegedly filed, and
inspection reports.

Pre-Trial Detainees/Medical CareStandards of Liability-Serious
Medical Needs
Johnson V. Busby, 953 F.2d 349 (8th Cir.
1991). The district court properly instructed the jury that a serious medical need
is "one that has been diagnosed by a
physician as requiring treatment, or one that
is so obvious that even a lay person would
easily recognize the necessity for a doctor's
attention." (351)

Procedural Due ProcessAdministrative Segregation
Layton V. Beyer, 953 F.2d 839 (3d Cir.
1992). New Jersey regulations create a liberty
interest in staying out of the "Management
Control Unit" (administrative segregation). At
847: "...the inmate has a reasonable expectation that if he never poses a threat to others,
to property, or to the operation of a facility,
he will remain free of the restrictive confinement of M.C.U. and Prehearing M.C.U." The
court views Kentucky Dept. ofCorrections V.
Thompson as holding that regulations must
eliminate any discretion to apply criteria
other than the regulations' substantive
predicates. It rejects the view that under
Thompson, "the official action must be
mandated whenever the relevant substantive
criteria have been met" (848) (emphasis in
original). This interpretation reconciles
Thompson and Hewitt V. Helms.

Use of ForcelTraining
Russo V. City ofCincinnati, 953 F.2d
1036 (6th Cir. 1992). Evidence that officers
admitted they were frequently called on to
deal with mentally and emotionally disturbed and disabled persons, but that they
could not remember their training on that
subject, combined with expert testimony as
to the adequacy of their training, raised a
factual issue precluding summary judgment

concerning the adequacy of the municipality's training.

Recreation and Exercise/
Qualified Immunity
Mitchell V. Rice, 954 F.2d 187 (4th Cir.
1992). The plaintiff, who had an extensive
and continuing record of assaultive behaVior
and had already been placed in "maximum
custody assigned to intensive management,"
was subjected to 32 months of arm and leg
restraints whenever he left his cell, and was
denied any out-of-'ell recreation or exercise
for 18 of them..' ~~~
The defendants were not entitled to
qualified immunity on this record. It was
established that though denial of out-of-cell
exercise is not per se cruel and unusual,
"generally a prisoner should be permitted
some regular out-of-cell exercise." (l91,
footnote omitted.) At 192: "It seems proper
to require a...showing of infeasibility of
alternatives, excepting financial justifications, before granting qualified immunity."
The plaintiff's unmanageable, violent nature
may present sufficiently exceptional
circumstances to justify the deprivation. At
193: "A detailed review of the feasibility of
alternatives in this case, such as solitary
out-of-cell exercise periods, or the adequacy of in-cell exercise would need to
precede a grant of qualified immunity in a
case such as this."

MunicipalitieslFalse Imprisonment!
Procedural Due Process
Oviatt by and through Waugh V. Pearce,
954 F.2d 1470 (9th Cir. 1992). The
schizophrenic plaintiff waited four months
for arraignment because of a court clerk's
error. Ajury awarded him $65,000 on his
constitutional and tort claims.
Freedom from unjustified incarceration is
a constitutionally based liberty interest. In
addition, liberty interests were created by
state statutes reqUiring release after 60 days
if no trial has been held and requiring
arraignment within 36 hours absent good
cause. Under Mathews V. Eldridge, the
sheriff's failure to provide an internal
procedure for keeping track of whether
inmates had been arraigned or otherwise
appeared in court was unconstitutional.

DISTRICT COURTS
Women/Equal Protection
McCoy V. Nevada Dept. ofPrisons, 776
F.Supp. 521 (D.Nev. 1991). Prison gender
discrimination cases are governed by the
"heightened standard" that permits
discrimination only if it serves important
governmental objectives and is substantially
THE NATIONAL PRISON PROJECT JOURNAL

related to achieving them. Female prisoners
must be treated "in parity" with male
prisoners (523). The Turner reasonable
relationship test does not apply (n. 2).
Evidence that male inmates had access to a
wider variety of educational and vocational
training programs, better recreation programs and more facilities per capita, more
privileges in connection with visiting, more
lock-out time, unmonitored telephones, better
visiting conditions, more ice machines,
better law libraries, better commissary
services, better building maintenance and
more clothing, barred summary judgment
for the defendants. Summary judgment is
granted as to various other claims as to
which the plaintiffs submitted no evidence of
disparate treatment.

I

AIDS/State Law in Federal Courts/
Privacy/Deference
Nolley v. County ofErie, 776 F.Supp. 715
(W.D.N.Y. 1991). Jail officials placed a red
sticker on the jail medical and transportation record of the HlV-positive plaintiff,
placed her in a unit for the mentally
disturbed and sUicidal, and barred her from
the law library and religious services.
There is a private cause of action under
state statutes protecting the confidentiality
of HlV-related information. The red sticker
policy violated the statute and the regulations promulgated under it.
The constitutional right to privacy
"includes protection against unwarranted
disclosure of one's medical records or
condition." (729) Prisoner privacy claims
are governed by the Turner reasonable
relationship standard. The red sticker policy
is not reasonably related to protecting staff
from infection because it is underinclusive,
Le., there are clearly inmates who are
infected but not known to be infected. There
is a readily available (and superior)
alternative-using universal precautions.
Since universal precautions had later been
instituted, there would be minimal impact
on staff and others.
The plaintiff's segregation violated the
state statute. It also was unreasonable under
Turner because it was so "remotely
connected" to legitimate goals. It is a
prisoner's behavior, not the mere fact of
HIV infection, that makes transmission
likely. In addition, the segregation was
contrary to the jail's own policy, rendering
it an "exaggerated response." (736)
The plaintiff's segregation denied due
process. It is more analogous to placement
in a mental hospital than to security-related
segregation because it involved a stigma
similar to mental hospital confinement. The
deranged behavior of the other inmates
THE NATIONAL PRISON PROJEG JOURNAL

rendered confinement with them "qualitatively different from the punishment
normally suffered by a person convicted of a
crime." (738) In addition, the plaintiff's
confinement was indefinite and not subject
to periodic review. Jail regulations provid-,
ing for mandatory review "to determine ':1:
whether the reasons for initial placement 1ff'
the unit still exist" and stating that housing
decisions will not be made solely on the." .
basis of HlV status created a liberty int~~est
in staying in general population.
,';;
The plaintiff's exclusion from the law
library, denial of face-to-face access to inmate
law clerks, and relegation to a copying system
that required her to identify specific materials
for copying denied access to courts. At 741:
"By now choosing to alter these practices,
defendants have essentially admitted that the
prior practice was misguided." The practice
also was unreasonable under the Turner test.
The plaintiff's exclusion from religious
services violated the First Amendment.

Use of Force/Administrative
Segregation-High Security
Friends v. Moore, 776 F.Supp. 1382
(E.D.Mo. 1991). The plaintiff suffered a
bloody nose as a result of being subdued in
his cell by a "movement team" because he
would not give up his clothing to be put in a
strip cell. The use of force did not violate
the Eighth Amendment.
The plaintiff was also stripped and left
naked and wet in an outdoor recreation area
for less than two hours. The Eighth Amendment was not violated because the defendants did not intend to punish but only to
restore order and to clean up the plaintiff's
cell, which he had flooded. There was no
evidence that he was cold or in discomfort
(even though a video-tape showed him
pacing "like a caged lion").
This opinion is notable for its depiction of
mutually abusive behavior by staff and
inmates in a high-security unit. It also notes
that an officer was assigned to examine the
plaintiff's feces for a missing handcuff key.
It is also another case in which the video
camera somehow malfunctioned at the point
when the incident started.
Medical Care/Injunctive Relief
McCargo v. Vaughn, 778 F.Supp. 1341
(E.D.Pa. 1991). The court had previously
issued a preliminary injunction requiring
prison officials to establish a system for
diabetic inmates to receive special diets and
to assure them access to insulin. It then
ordered that the injunction be made
permanent, and the defendants moved to
alter or amend on the ground that it provided relief to persons who were nonparties.

An injunction can benefit persons who are
nonparties to the litigation even if no class
has been certified. At 1342: "Where as here
an injunction is warranted by a finding of
defendants' outrageous unlawful practices,
the injunction is not prohibited merely
because it confers benefits upon individuals
who were not named plaintiffs or members
of a formally certified class."

Protection from Inmate Assault
Smith v. Artison, 779 F.Supp. 113
(E.D.Wis. 1991'. An allegation that the
plaintiff warne~the sheriff about threats of
assault he had received from other inmates,
the sheriff disregarded the warnings, and
the plaintiff was subsequently assaulted was
not frivolous under the deliberate indifference standard.
Procedural Due ProcessVisiting/Qualified Immunity
Van Poyck v. Dugger, 779 F.Supp. 571
(M.D.Fla. 1991). Prison officials denied
visiting rights to the fiancee of the plaintiff, a
death row inmate, because she had worked
for six months as a nurse in a jail and her
knowledge of jail operations allegedly made
her a security risk. The plaintiff alleged that .
he was being retaliated against because he
had murdered a correctional officer and
because of his legal activities.
There is no absolute right to visit, and the
denial of access to a particular visitor is not
protected by the due process clause unless
state law creates a liberty interest. Florida
visiting regulations create such an interest.
They provide substantive predicates (an
exhaustive list of reasons permitting denial of
visits from particular persons) and mandatory
language ("shall" all over the place).
The defendants are not entitled to
qualified immunity because it is clearly
established that it is unlawful to deny an
inmate visiting privileges without legitimate
penological objectives.
AccidentslNegligence, Deliberate
Indifference and Intent
Choate v. Lockhart, 779 F.Supp. 987
(E.D.Ark. 1991). The defendant prison
officials "demonstrated reckless disregard
for plaintiff's safety when he was directed to
perform work on a 45 degree angle plywood
roof, without toe boards or scaffoldings
installed, when plaintiff, among other things
possessed a recognizable infirm right leg."
(988) The defendants included the director
of the Arkansas Department of Correction,
for whose personal use a garage was being
constructed. Inmates had complained about
the working conditions and had been told to
"shut up and go back to work."
SUMMER 1992 11

Protection from Inmate Assault!
Color of Law
Payne v. Monroe County, 779 F.Supp.
1330 (S.D.Fla. 1991). The county government could not be held liable for an inmate
assault because there was no evidence that it
knew or should have known that the
assailant would attack the plaintiff. The
court ignores the plaintiff's allegation that
crowding created an unreasonable risk of
assault, focusing instead on the risk to him
from the particular assailant.
The Wackenhut Corporation acted under
color of state law since it "was authorized to
exercise supervision and control over the
functions of the Monroe County JaiL"
(1335) The claim against it is dismissed
because of the lack of allegations of
deliberate indifference.

Law Libraries and Law Books/
Pre-Trial Detainees
Kaiser v. County ofSacramento, 780
F.Supp. 1309 (E.D.Cal. 1991). The county
policy with respect to pre-trial detainees
representing themselves was to provide a
"pro per" information package, copies of
the appropriate statutory sections, information packets pertaining to various motions,
habeas corpus, §1983 actions and other
matters, plus a cell delivery system for law
books permitting generalized requests for
books in a certain area (with a one-day
turnaround for persons defending themselves), and Shepardizing. The plaintiffs
submitted evidence that the system "work[s]
more poorly in practice" than in theory, but
the court finds that it satisfies their Sixth
Amendment rights for purposes of the
application for a preliminary injunction.
Further evidence of the system's failure
might justify a permanent injunction.
For convicted inmates, to whom Bounds
clearly applies, a paging system by itself is
clearly unconstitutional. While paging plus
legal assistance may satisfy Bounds, the
defendants' "assrstance"-obtaining general
references, narrowing the scope of legal
inquiries, and prOViding compiled packages
of forms and legal materials-may not meet
the standard. The court denies broad
preliminary relief because the plaintiffs have
not shown the extent of the harm to the
plaintiff class and have not proposed a
remedy with practical specifics. However, it
orders the posting of a complete list of
available legal reference materials.

Pro Se Litigation
Patrick v. Staples, 780 F.Supp. 1528
(N.D.Ind. 1991). At 1532:
As this massive Report and Recommendation clearly indicate, the disposition
12 SUMMER 1992

and management of pro se prisoner
to a pro se case.
litigation is just plain hard, timeDefendants were not entitled to summary
consuming work. The sooner that those
judgment on plaintiff's allegations that he
who record time consumption probwas subjected to involuntary psychotropic
abilities to such cases learn that lesson
medication while in jail. An affidavit alleging
the better all ofus in the federal trial
that the plaintiff was a "disciplinary
judiciary will be.
f nightmare" and that the drugs were
Intentional refusal to let the plaintiff see a
'~ administered by a "qualified medical aide
doctor when he was obviously sick stated an ;; following the orders of the facility's
Eighth Amendment claim.
. psychiatrist" was insufficient. Washington v.
Allegations that the plaintiff was not~;
Harper requires that the prisoner have "a
permitted to obtain his medication on one ~
serious mental illness" and be "dangerous
stated an Eighth Amendment claim; if the
to himself or other\," and that the treatment
defendant "deliberately interfered with his
be "in the inmate'~,imedical interest." (957)
medically prescribed treatment for the
It also provides fOr procedural requirepurpose of causing him unnecessary pain, she
ments, which are not addressed at all on
could be subject to liability even though he
this record.
suffered no apparent injury."
Good TimelHabeas Corpus
Allegations that the plaintiff was assigned to
Doughty v. U.S. Board ofParole, 782
a job or denied medical care because of his
F.Supp. 653 (D.D.C. 1992). The District of
race stated an equal protection claim. Other
Columbia Good Time Credits Act has been
such allegations, unsupported by any specific
amended to award credits to D.C. offenders
factual allegation demonstrating racial
animus, did not state an equal protection
housed in federal prisons outside the District.
The plaintiff would not be required to
claim. (1548)
exhaust his administrative remedies with
respect to deprivation of good time, since the
AIDSlPrivacy
defendants had declared uneqUivocally in
Lipinski v. Skinner, 781 F.Supp. 131
(N.D.N.Y. 1991). The plaintiff was arrested,
open court that they would not give him any
tested for HIV infection without his consent,
good time back.
The plaintiff's claim concerning good time
and jailed; his positive test results were
should have been brought as a habeas
disclosed by the doctor to the State Police,
corpus petition in the district where he was
who had asked for the test, and by them to
held and not as a suit for declaratory and
jail authorities. The information then
showed up in the local newspaper, allegedly
injunctive relief. Preiser is cited by analogy.
The court rejects the "creative" argument
because jail staff disclosed it.
that as a D.C offender the plaintiff is in the
The newspaper's editorial writer was not
custody of the Attorney General no matter
entitled under the First Amendment to
where he is incarcerated.
"absolute immunity" from discovery. The
newspaper's journalists, but not its editors,
were entitled to "qualified immunity."
Procedural Due Process-Disciplinary Proceedings/Summary Judgment
Discovery from the editors must be limited so
Russell v. Coughlin, 782 F.Supp. 876
as to minimize its impact on the journalists.
(S.D.N.Y. 1991). Incarcerated pro se litigants
Medical Care-Standards of
are entitled to notice of the consequences of
Liability-Deliberate Indifference
failure to respond to a summary judgment
motion. If they get it and still don't respond,
Diaz v. Broglin, 781 F.Supp. 566
the moving party is not automatically entitled
(N.D.Ind. 1991). At 574: "Although
negligence alone, or simple medical
to summary judgment; the court must
malpractice, is insufficient to state a claim
determine whether the facts set forth in the
for relief, ...courts have begun to recognize
moving party's statement of undisputed facts
warrant summary judgment.
that repeated, long-term negligent treatment
of a prisoner's medical condition, rather
Aprison official could not be held liable for
than intentional actions, may amount to
an unlawful disciplinary proceeding based on
deliberate indifference...." The plaintiff's
having appointed the hearing officers, absent
any evidence that he was involved in or aware
medical care claims are rejected for lack of
factual substantiation.
of their wrongful conduct or knew that one of
them had prior involvement with the case.
The hearing officer could not be held liable
Mental Health CarePsychotropic Drugs
for declining to call witnesses when he
Breads v. Moehrle, 781 F.Supp. 953
claimed, without dispute, that the prisoner
(W.D.N.Y. 1991). The court briefly recounts
admitted that they would be unnecessary.
The hearing officer was not entitled to
the history of defendants' failure to respond
THE NATIONAL PRISON PROJEG JOURNAL

summary judgment on his failure to assess
independently the credibility of confidential
informants. He was not entitled to qualified
immunity either.

AIDS/Medical Care-Standards of
Liability-Deliberate Indifference
Myers v. Maryland Div. ofCorrection,
782 F.Supp. 1095 CD.Md. 1992). The court
notes that it appointed counsel both for pro
se inmates seeking the segregation of HIVpositive inmates and for HIV-positive
inmates who intervened as defendants.
The plaintiffs' claims have largely been
resolved by operational changes by the
defendants, who now provide (l 096):
(1) extensive education for inmates on
AIDS-related issues, (2) HIV testing for

all incoming inmates who request such
testing, (3) testing for all inmates in
the standing population who request to
be tested if aphysician has made a
clinicaljudgment that testing is
appropriate and (4) involuntary testing
for inmates who have been found guilty
ofthe violation ofan institutional
regulation which causes potential
exposure to the HIV virus.
The parties agreed that the plaintiffs must
show a "pervasive risk of harm" as well as deliberate indifference to that risk. The "pervasive risk" was demonstrated "in the view of
any fair-minded person" by defendants' experts' concession that 60 to 70 inmates annually contract HIV and that an uninfected inmate has a 1 in 200 chance of contracting HlV
during each year of his prison stay. However,

plaintiffs failed to present evidence of deliberate indifference, since defendants' policies
"fall well within the norm" of other state
prison systems and "conform to applicable
community standards outside of the prison
context" and are based on the opinions of experts. The defendants' reasoned choice between the two alternatives of mandatory test-

John Boston is the director of the
Prisoners' Rights Project, Legal Aid
Society ofNew York. He regularly
contributes this column to the NPP
JOURNAL.

Publications wprth noting:
• Odyssey is a quarterly magazine edited by Luke Janu'z, a former Massach
setts state prisoner. According to Janus, the magazine is Rr~blished as a way of
"establishing a dialogue between prisoners and members of the community."
"In the absence of political representation and access to the media," says
Janusz, "prisoners must seek new ways to reopen a meaningful dialogue."
Arecent issue featured articles on cross-gender supervision, First Amendm
rights for prisoners, the Salem witch trials, and an interview with attorney M
Stern who argued on behalf of inmates in Rufo v. Inmates ofSuffolk Count
in the Supreme Court. The magazine also included a number of essays, legal
articles, political commentary, state legislative news, book reviews, and ficti
and poetry by prisoners. The impressive roster of contributing writers inclu
prisoners, an attorney, a staff writer for the Boston Globe, and a sheriff.
Odyssey is produced through the cooperative efforts of attorneys, journalis
prisoners' rights groups and others, but, according to Janusz, "the magazine
belongs to prisoners." Odyssey is available for $16/year prepaid; $5 per sing
copy, from Box 14, Dedham, MA 02026.
• Prison Legal News is a monthly newsletter published by Washington St
prisoners Ed Mead and Paul Wright. PIN covers recent court decisions affec
prisoners' rights, prison news from around the world, and articles and anal
prison issues from a progressive perspective. According to Wright, PLNs goa
"extend democracy to all" by helping prisoners help themselves through the 1
system and by encouraging prisoners and their families to seek change in the
prison system. For subscription details and/or a free sample copy, write PIN,
Box 1684, Lake Worth, FL 33460.

00 letters each
elude legal
neither the time
der to give
ted, we have
rt of"Dear Abby"
issue ofthe NPP
staffwill develop
it we receive (but
rovz'de the
Abby" is NPP law

real overcrowded.
t this is a
nstitution, but a
pIe-celled is not

THE NATIONAL PRISON PROJECT JOURNAL

ing and separation versus voluntary testing
and education must be given deference. III

Dear Jam Packed:
Your friend is correct that double or even triple-ceIlin
not per se unconstitutional. Two things must exist to esta
that overcrowding or other prison conditions are uncons
tional: 1) there must be a serious deprivation of a basic
human need as a result of the conditions and, 2) prison
officials must be deliberately indifferent to these conditi
This means that the overcrowding must be accompanied
other factors such as unsanitary and dangerous condition
leading to the deprivation of identifiable human needs.
Examples are those instances where the conditions resul
the lack of medical care, dangers from fire, the spread 0
disease, or cause psychological harm and increased like
hood of illness and violence. Additionally, prison official
to be aware of the conditions and fail to take reasonable
corrective action. Rhodes v. Chapman, 452 U.S. 337, 10
S.Ct. 2392 (1981); Bell v. Wolfish, 441 U.S. 520,99 S.Ct
1861 (1977); Tillery v. Owens, 907 F.2d. 418 (3rd.Cir.
1990); Palmigiano v. Garrahy, 639 F.Supp.244 (D.R.I.
1986); Hoptowit v. Ray, 682 F.2d. 1237,1239 (9th Cir.1
SUMMER 1992 13

(cont'd from page 5)

Just to make sure federal officials got
the message, farmers plowed the words
"NO PRISON" 150 feet high into the land
for the benefit of government photographers who flew over to take photos for the
environmental impact statement.
A Different Definition
of "Progress"

Progress, of course, means different
things to different people. Homeowners
opposed to the prison say that to define

progress as "development" is to define
you must be aware that you have to fight
to keep it." II1II
it too narrowly. To them, it may mean
the destruction of their way of life. One
local resident, Don Harrold, wrote,
*The Bureau plans to open 47 new
"Isn't that the way it's always been here? prisons and expand 16 existing ones
Sell off the land for strip mines, dumps,
between 1992 and 1995. BOP projects
anything to make money. Promise jobs.
that its inmate population will swell
Get rich.
from about 60,000 in 1991 to over
"Progress," he went on, "must now> 98,000 by 1995, From GAO Reports,
mean taking care of the land, not exploit~ . May 1992,
ing it. Progress must mean support for.;
-------------farms and small businesses, ... If you are ,r; Jan Elvin is the editor ojthe NPP
aware of the value of what you have here,
JOURNAL.
"

:1

i

14 SUMMER 1992

THE NATIONAL PRISON PROJEG JOURNAL

Crowded Prisons andJails Unable to
Meet Needs of Mentally III
he few community resources
designed to ease the integration
of the mentally ill into society are
not meeting their needs. People with
mental illnesses are often unable to
conform their behavior to community
standards, and frequently run into
trouble when they are forced to live
without treatment or support. Life on
the streets for the mentally ill, harsh in
and of itself, often leads to something
even worse: jail or prison, where they
are denied treatment and subjected to
victimization.
The institutional problems presented
by the influx of mentally ill inmates into
jails and prisons have arisen chiefly
because these facilities were not
designed to provide mental health care.
They are not equipped with the backup
resources necessary to provide humane
and therapeutic living conditions.
Psychotic prisoners frequently suffer in
prison because they do not understand
their surroundings, and receive little or
no medical or mental health treatment.
Prisons officials, despite their failure
to design workable mental health
policies and programs, are constitutionally obligated to provide necessary care
to these inmates. In 1976, the Supreme
Court held in Estelle v. Gamble that
"elementary principles establish the
government's obligation to prOVide
medical care for those whom it is
punishing with incarceration."1 The
Court found that "deliberate indifference to seF40us medical needs of
prisoners"2 violates the constitutional
right of prisoners to be free from cruel
and unusual punishment under the
Eighth Amendment. Estelle referred to
medical care for physical illness, but
lower courts quickly extended the
principle to "psychiatric care for
serious mental or emotional illness."3
To show a violation of the Estelle
standard, prisoners must prove deliberate indifference to serious medical
needs by shOWing "a pattern
oLmedical inadequacy that is so far
reaching and consistent as to persuade
[the court] that the mental health care
efforts...reflect a systemic failure."4

T

THE NATIONAL PRISON PROJECT JOURNAL

.:t'
It is often difficult to demonstrate that

institutions have fallen below this/;
standard. The Supreme Court has1~
unilaterally limited its own control over
the level of care provided to inmates by
shOWing deference to state prison
policies. Lower courts tend to be more
willing to intercede on behalf of
prisoners. Essentially, when prison
administrators claim that their actions
are based on a concern for security
issues, the Supreme Court has maintained a hands-off posture. Virtually any
action taken by a prison official,
however, can be linked to some type of
security interest.
Avivid example of the Court's deference to state officials is its 1990

decision in Washington v. Harper, 110
S.Ct. 1028 (1990). This case upheld a
state's right to compel a mentally ill
prisoner to take anti-psychotic medication "if the inmate is dangerous to
himself or others and the treatment is in
the inmate's medical interest."5 The
conditions under which prisoners can
be forced to ingest psychotropics are
actually even broader than the language
in Washington v. Harper suggests. The
majority opinion also included in this
subclass of prisoners those "who as a
result of their illness, are gravely
disabled,"6 even if they were never
adjudicated mentally ill or incompetent
to make medical decisions. The regrettable result of this decision is that,
rather than require officials to provide
integrated treatment to mentally ill
inmates, the Court has prOVided
administrators with the opportunity to
administer drugs as a means of behavior

modification. While forced medication
is not always a harmful or dangerous
practice, it does open the door to the
possibility of misdiagnosed or improperly administered medication being
used to manage the mentally ill.
There is no quick fix for the problem
of mental illness in prison. Offering
medication without therapy or individualized treatment may stem the tide of
immediate disruptive outbursts, but fails
to address the long-term constitutional
implication~of housing inmates with
mental illn~es in prisons that do not
provide th\ffu with proper care.
Over the past several years, as prison
conditions for mentally ill inmates have
worsened, a body of case law has
developed identifying the Eighth
Amendment violations to which these
inmates are subjected. Judges recognize
the appalling and inhumane liVing
conditions, but are sometimes hesitant
to order the kinds of reforms necessary
to alleviate the situation, or in the
alternative, order that mentally ill
inmates be cared for in separate
facilities.
In Langley v. Coughlin, 715 F.Supp.
522,546 (S.D.N.Y. 1989), the court
poignantly described the failures in the
mental health services provided to
prisoners at a correctional facility in
New York with a special unit for the
mentally ill.
Among other things, the treatment
unit was characterized by "dramatic
outbursts of screaming, self-mutilation,
attempted or staged suicides, thrOWing
of feces and garbage, fires and other
distressing behavior."7 An injunction
was issued designed to alleviate the
harsh conditions.
Even worse conditions were found in
Puerto Rico's prison system:
Psychotic mad men are kept for
weeks and months, (some pre-trial
detainees) caged like animals,
without clothes, without medicines,
forced to eat with their hands and in
most cases without having been seen
by a doctor....Suicides are alarmingly
frequent, but not so staggering to the
mind as the number ofviolent deaths
that the court has reviewed. Raw
sewage runs in dormitories and
kitchens; toilets in all closed institutions do not work; prescriptions do
not get filled; beds and mattresses are
not provided, nor, for that matter, is
soap, toothpaste, tooth brushes, or
sufficient toilet paper. Food has to be
destroyed everywhere because it has
SUMMER 1992 15

been· contaminated by rats or other
vermin. Usually, people can not see a
doctor unless the prison guards
acquiesce.... The only psychiatric
screening that the overwhelming
number ofinmates receive is the
subjective untrained evaluation ofthe
prison guard. Overcrowding, the basic
evil ofeach closed institution, is so
intense that in some areas, such as
the "Q" or quarantine section... where
pre-trial detainees constitute the
overwhelming majority, the inmate
may have no more than fifteen (15)
square feet ofliving space. 8
Based on these facts, Judge PerezGimenez held that "solitary confinement
of psychiatric patients without supervision, without treatment and without
medication, is cruel and barbaric,"9 and
ordered that psychotics be removed
from the prisons.
Despite the strong language in this
opinion, change has been slow in
coming. In 1986, the judge appointed
two court monitors to work with state
officials to remedy the noncompliance
with his seven-year-old order. And in
1989 the First Circuit Court of Appeals
affirmed contempt fines for noncompliance. IO In that opinion and order, Judge
Perez-Gimenez noted that "the record in
these [prisoners' rights] cases establishes an appalling disregard by
defendants not only of constitutional
rights but of common decency in the
incarceration of human beings.... "ll The
court found that mentally ill prisoners
were still being "abandoned for days
and weeks"12 in isolation cells. Among
other remedies, the judge ordered
defendants to remove the doors of the
isolation cells, to provide prisoners
daily access to medical staff, and to
impose limits on the jail's population. 13
Similar conditions were found at the
State Correctional Institution in
Pittsburgh, Pennsylvania, according to
the district court opinion, affirmed by
the Third Circuit, in Tillery v. Owens. 14
There, mentally ill prisoners were
separated from the general population,
housed in a unit described as "malodorous, filthy ... and inadequately
staffed."15 An injunction was issued
requiring the development of a comprehensive Mental Health Plan.
While state prisons across the country
shamefully neglect the mentally ill,
conditions in local jails are typically
much worse. They have neither treatment programs in place nor the
16 SUMMER 1992

litigation, the real challenge in this area
resources to develop them. At the same
lies ahead. The goal of future litigation
time, local jails have the greatest need
should be to encourage coordination
for mental health services. Whether
with the mental health community to
because of the shock of incarceration,
or simply because of the number of
develop treatment programs for
mentally ill inmates which will serve as
persons arrested with long histories of
mental illness, new arrestees are often ':} more than drug-based behavior
very depressed or actively psychotic. In '('modification. Courts must send prison
administrators a message that in order
those jails where the mentally ill are
to provide minimally constitutional care
not treated or closely monitored, they
are susceptible to abuse by other
.; they must create a safe and therapeutic
inmates and acts of self-destruction. lut environment.
When prison o~cials realize that the
one recent case, a man detained on a
courts are seri0lts about protecting the
burglary charge hung himself with an
constitutional rfghts of these inmates,
ace bandage and a towel rack in an
the sheer cost involved will send them
isolation cell where he had been held
with a message to lawmakers that the
for a week. Afew weeks before his
prison system is not equipped to care
death, he had tried to hang himself
for the mentally ill. This may be the best
while in a "behavior modification
way to encourage legislatures to devote
module," but the psychiatrist who
the resources necessary to provide
examined him after the incident
labelled the attempt a "gesture."16
community-based therapy services
intended to keep people with mental
One reason for the high suicide rate is
illnesses off the streets and, accordingly,
that mental illness often goes undetected
out of prisons and jails. •
in jails. Arecent study of a random
sample of 728 jail detainees who were
Mark J Lopez is an attorney with the
given a diagnostic interview (designed by
National Prison Project. Catherine
the National Institute of Mental Health)
during intake and then followed up during Cheney is aformer NPP law clerk who
is now a public defender in Seattle.
their jail stay, found that of those who
manifested severe mental illness, only
1 429 U.S. 97 (1976).
one-third got treatment within one week
of intake. Treatment was more likely to be 2 429 u.s. at 104.
3 Inmates ofAllegheny CountyJail v. Pierce, 612
given if the person had already received
mental health treatment, if the person had F.2d 754,763 (3rd Cir. 1979).
schizophrenia rather then depression, and 4 Langley V. Coughlin, 715 F.Supp. 522, 540-41
(S.D.N.Y.1989).
if the jail staff had documented the
5 Washington V. Harper, 110 S.Ct. 1028, 1040
detainee's symptoms. 17 Many jail officials
complain that wide-scale psychiatric
(1990).
6 Id. at 1039.
testing is unreasonably costly and time
7 Langley at 540.
consuming. However, alternatives to
8 Feliciano V. Barcelo, 497 F.Supp. 14, 18-19
traditional psychological assessment
techniques exist for use in jails with
(D.P.R. 1979).
9 Id. at 35.
limited resources so that mentally ill
detainees will be detected during intake 10 Morales-Feliciano V. Parole Bd. ofCom. ofP.R.,
887 F.2d 1 (1st Cir. 1989).
procedures. For example, an instruMorales-Feliciano v. Hernandez Colon, 697
ment called a "Referral Decision Scale"
(RDS) is designed to detect whether a
F.Supp. 37, 39 (D.P.R. 1988).
person has a high enough probability of 12 697 F.Supp. at 43.
13 Id. at 50-51.
having a mental illness that referral for
14
719 F.Supp. 1256 (W.D.Pa. 1989),907 F. 2d 418
a diagnostic evaluation is appropriate.
The RDS is short, reliable, and simple
(3rd Cir. 1990).
15 Id. at 1303.
enough to be administered by trained
16 Cabrales V. County ofLos Angeles, 864 F.2d
correctional personnel. 18 Widespread
1454,1457 (9thCir.1988), u.s. cert. deniedin
use of such diagnostic tools could
prevent the mentally ill from moving
110 S.Ct. 1838.
17 Teplin, "Detecting Disorder: The Treatment of
unnoticed and untreated through the
Mentallllness AmongJail Detainees," 58Journal of
jail system.
Consulting and Clinical Psychology, (1990) 2-233.
The cases and problems discussed
18 Teplin and Schwartz, "Screening for Severe
here provide only glimpses of the
Mental Disorder in Jails: The Development of the
suffering endured by the mentally ill
Referral Decision Scale," 13 Law and Human
while incarcerated. Although some
Behavior 1 (1989).
reforms have been achieved through
11

THE NATIONAL PRISON PROJECT JOURNAL

Film Review: "Cancelled Lives"
"':1,

J:t

on it-particularly in a teaching setting.
The program is designed to get young
people to look at their choices and
grasp in a personal way what the
consequences of those choices may be.
But a deeper understanding of the
issues of race and class would only
enhance the discussion and benefit the
students.
Cancelled Lives was produced in
association with the "I Have a Dream"
Foundation in Los Angeles. The foundation receiv€!t' the profits from the film.
"I Have aDJeam" is a nationwide
charitabl~fbrganization which prOVides
10,000 inner city youths in 43 cities

The purpose of the film is "to elimf~
Cancelled Lives: Letters From the
nate the romanticized attitude towar:n
Inside is an educational film about life
behind bars for television and for use in crime and the harm it causes [the.. '
offenders'] families, [and] their /::
schools. It is based on personal letters
written to family and friends by indivictims." It does that well. It stre~$es,
viduals serving time in prisons, jails,
appropriately (especially for the
and youth facilities across the country.
younger audience), the role of indiThe letters reveal deep feelings; many,
vidual choice in criminal behavior.
especially those written by young girls and However, the discussion guide would be
boys, are painful and heartbreaking. The film was originally
created to deter youngsters from
crime, but the producers say
that it has also been effective in
sensitizing corrections officers,
chaplains, and jail and prison
volunteers to the emotions of the
incarcerated.
In their letters, men, women,
and teenagers describe their
feelings upon entering such
places as the Northern California Women's FaCility, San
Quentin, Soledad Training
Facility, and Folsom Prison.
The film shows actual footage
of these institutions accompanied by music such as "There's
No Way Out of Here," "I
Fought the Law," and "Please,
Mr. Jailer." The film concludes, ironically, with Rod
Stewart's "Forever Young."
This film is no Scared
Straight. There are no
graphic horror stories or
scenes of violence. The
photography is vivid, but not ({l
shocking. What comes through i'
the letters-is a mixture of
~
regret, fear, loneliness,
J5
despair, and most poignant of
In "Cancelled Lives," young and adult offenders describe life behind bars
all, hope.
in their personal letters.
The letters are read on film
by an array of Hollywood actors,
improved by a recommendation that
with educational, cultural and recreincluding Kelly McGillis, Jimmy Smits,
ational activities, and a guaranteed
students look at the effects of racism
Peter Coyote, Mary Steenburgen, Alec
and classism. Given the shocking fact
scholarship for the college education of
Baldwin, Edward James Olmos, and
that the United States has the highest
their choice upon graduation from high
Blair Underwood. Auseful "Discussion
incarceration rate in the world, and that school.
Guide" accompanies the film, which
African-American males are locked up
It is available from Milestone Media,
offers pointers on how teachers should
at a rate almost five times that of Black
Inc., 3463 State Street, Suite 284, Santa
use the film in class. The guide suggests
males in South Africa, this is simply too
Barbara, CA 93105. Fax 805/687-4961. It
discussion points on drug addiction, the important a point to overlook. Racism
costs $133, which includes shipping. •
causes of criminal behavior, rules of
really is the issue for this country, and
conduct and ethicS, and the role of
any discussion of criminal justice
Jan Elvin is the editor ofthe NPP
sanctions should include it-even focus JOURNAL.
television in glorifying violence.
THE NATIONAL PRISON PROJEG JOURNAL

SUMMER 1992 17

~te

Families of
Terminally III
Wait, Hope for
Medical Parole
ike most prisoners with AIDS, Alex
Velazquez is serving the equivalent
of a death sentence at Virginia's
Powhatan Correctional Center. Although a
rally of over 50 family members at the
state Capitol influenced Governor Douglas
Wilder to develop guidelines for releasing
terminally ill prisoners, Mr. Velazquez's
request for executive clemency was
denied. With aT-cell count of zero and
numerous opportunistic infections, he is
considered a "public safety threat." Under
Gov. Wilder's guidelines, Velazquez is
ineligible for release because he may live
longer than three months.
Lajuanda Saunders is serving another
kind of sentence, one of waiting. Her
husband, Walter Saunders Jr., a prisoner
at Virginia's Greenville Correctional
Center, was diagnosed with lymphoma
cancer early this year. He has exhausted
all types of chemotherapy and doctors
have petitioned the parole board for early
release. Mrs. Saunders echoes the
feelings of most families when she says,
"Right now I just wish he could come
home to spend his-last days with his
family. My biggest fear is something
happening to him and only receiving a
phone call."
State corrections systems face a growing
number of terminally ill prisoners like
Alex and Walter. Like most terminally ill
prisoners, both men are dependent on the
whims of "tough-on-crime" governors to
grant clemency. In three statesMichigan, Oregon and Missouri-the
Parole Board can grant early release but,
like clemency, the process is rarely used.
Legislation providing medical parole has
been passed in only five states (Missouri,
Louisiana, Michigan, Oregon and New
York). The latest bill passed in New York

L

18 SUMMER 1992

;~nally ill," and the lack of timelines in the
offers medical parole for terminally ill
whole process. Both Mahon and Gibney
prisoners (except those convicted of
see the bill as riddled with complications.
murder, manslaughter 1 or any sex
offense defined in Penal Law article
.; According to Mahon, the Department of
130) who present no physical danger to" Correctional Services' (DOCS) inexperience in handling h~using placement and
society. Parole is granted for fourthe lack of additiol}'lll support staff to
month renewable periods, and can be
handle these cases'may point to disaster.
revoked at any time if the parolee
What has happened with medical parole
becomes a "threat to society."
so far? Not very much. Gibney filed six
New York has the largest number of
cases immediately after the bill was
prisoners with HIY/AIDS. As of January
passed. Fifty prisoners filed applications
1992,8,000 of the 58,000 prisoners were
in the form of informal letters. Of those
HIV positive. Of that number 800 have AIDS.
50, none have been released; some of
Since the bill's passage in April, the
these prisoners have since died.
Alliance for Inmates With AIDS has
What can DOCS expect if they continue
received over 100 requests for further
information. Nancy Mahon, director of the their footdragging? Gibney has already
planned more meetings with administraAIDS In Prison Project of the Correctional
Association of New York, sees the bill as a tors and legislators who supported the bill
and has initiated litigation over the lack of
"great victory for the community. The real
problem is how to get it to work." William implementation. In the meantime,
j"

Virginia Gov. L. Douglas Wilder walks past a group seeking medical parole for
Alex Velazquez.

Gibney of New York's Prisoner's Legal
Services agrees: "We're pleased that it
passed. We hope it serves as a model for
other systems, who will be experiencing
similar problems."
Yet, the bill leaves many questions
unanswered. Among them are the doctor's
liability in certifying that a prisoner is
unable to commit a crime, the lack of
clarification on the definition of "termi-

prisoners with AIDS in New York face a
slow bureaucratic death. ..
Support letters requesting clemency
for Alex Velazquez and Walter Saunders
Jr. can be mailed directly to The Hon.
Douglas Wilder, State Capitol, Richmond, VA 23219.

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

blications
The National Prison PrQject
Status Report lists by stater

1990 AIDS in Prison
Bibliography lists resources

those presently under court MHer,
or those which have pending;;<
litigation either involving the
entire state prison system '?r
major institutions within tIre 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
fromNPP.

on AIDS in prison that are
available from the National Prison
Project and other sources,
including corrections policies on
AIDS, educational materials,
.,~edical and legal articles, and
~recent AIDS studies. $5 prepaid
·!fromNPP.

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-toread 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
Project}OURNAL, $301yr.
$21yr. to prisoners.

The Prisoners Assistance
Directory, the result of a
national survey, identifies and
describes various organizations and
agencies that provide assistance to
prisoners. lists national, state, and
local organizations and sources of
assistance including legal, library,
AIDS, family support, and exoffender aid. 9th Edition, published
September 1990. Paperback, $30
prepaid from NPP.

APrimer for Jail Litigators
ffia~~oomanualwithprnrucal

Offender Rights Litigation:
Historical and Future
Developments. Abook
chapter by Alvin J. Bronstein
published in the Prisoners' Rights
Sourcebook (1980). Traces the
..history of the prisoners' rights
movement and surveys the state of
the law on various prison issues
(many case citations). 24 pages,
$3 prepaid from NPP.

QTY. COST

suggestions for jail litigation. It
includes chapters on legal analysis,
the use of expert witnesses, class
actions, attorneys' fees, enforcement, dfficovery, defenses' proof,
remedies, and many prnctical
suggestions. Relevant case citations
and correctional standards. 1st
Edition, February 1984. 180 pages,
paperback. (Note: This ffi not a
"jailhouse lawyers" manual.) $20
prepaid from NPP.

(order
from

ACLU Handbook, The
Rights of Prisoners. Guide to

ACLU)

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
QTY. COST 794, Medford, NY 11763.

QTY. COST

Fill out and send with check payable to:

Name

The National Prison Project
1875 Connecticut Ave, NW, #410
Wasltington, D.C. 20009

Address

THE NATIONAL PRISON PROJEG JOURNAL

City, State, Zip

_

_
_
SUMMER 1992 19

he following are major developments in the Prison Project's
litigation program since April 1,
1992. Further details of any of the
listed cases may be obtained by writing
the Project.

T

Cody v. Hillard-This case challenges
conditions at the South Dakota State
Penitentiary. On May 29, 1992, the court
held an evidentiary hearing on plaintiffs'
motion for enforcement of the consent
decree and further relief. Plaintiffs argued
that the state had failed to correct
environmental problems which were first
discovered in 1990.
Denton v. Hernandez-The Prison
Project participated as amicus in this
Supreme Court case which concerns the
standard for refusing to allow a pro se
indigent prisoner to file a complaint in
federal court. On May 4, 1992, the
Supreme Court issued an opinion and
remanded the case to the Ninth Circuit.
The Court did not decide whether the
plaintiff should have been denied leave to
proceed in forma pauperis in this case,
but it modified slightly the Ninth Circuit
standard under which district courts
determine to grant in forma pauperis

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

mr
20 SUMMER 1992

status. It also modified the standard und¢;r
which appellate courts review the denial:of in forma pauperis status.
Hadix v. Johnson-The National
Prison Project has filed an appearance
in the mental health portion of this case
which concerns conditions at the State
Prison of Southern Michigan in Jackson.
Along-standing consent decree comprehensively addresses conditions of
confinement at the facility. Judge
Feikens, who presides in Radix,
recently transferred the mental health
issues to Judge Enslen, who presides
over U.S. v. Michigan, because the
mental health provisions in the Radix
consent decree correspond closely to
those in the U.S. v. Michigan decree.
(See U.S. v. Michigan, below.) Judge
Enslen terminated a June 19 status
conference when defendants announced
that they were considering filing an
appeal of the order to transfer the
mental health issues.
John A. v. Castle challenges conditions in two Delaware juvenile facilities.
The court has scheduled trial in this case
for April 1993. Discovery is currently
underway.

Inman v. Board of SupervisorsThis case challenges overcrowding and
conditions at the. ~orthampton, Virginia
County Jail. The frol has made considerable improvements as a result of the
lawsuit, and on March 27 we filed a
motion for voluntary dismissal of the case.
On March 30, the county also filed a
motion to dismiss. On June 15, the district
court held a hearing on both motions; we
are awaiting a decision.

u.s. v. Michigan/Knop v. JohnsonThis is a statewide prison conditions case;
the National Prison Project appears as
amicus in U.S. v. Michigan. In April 1992
in U.S. v. Michigan, the Department of
Justice filed a motion to vacate most of the
consent decree and a stipulation attempting to withdraw their motion for contempt
on mental health issues. This move
followed the announcement by U.S.
Attorney General Barr of a new policy of
refusing to enforce prison consent
decrees that go beyond constitutional
requirements. The trial court deferred
ruling on the motion to vacate. On June
19, 1992, the court held a hearing on
pending mental health issues, including
the stipulation to withdraw the contempt
motion. We are awaiting a decision.

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THE NATIONAL PRISON PROJEG JOURNAL