A PROJECT OF THE AMERICAN CIVllllB~~tIES UNION FOUNDATION, INC.
VOL 7, NO.4, FAll 1992 • ISSN 074~l,2655
,.

The Marionization ofAmerican Prisons
In some prisons an unusual degree
ofgood conduct is induced, and
the number ofpunishments kept
low, by the personal influence of
the officers, and by their care in
reasoning with prisoners before
resorting to punishment.
-Inspector of Prisons for Scotland,
18441
...{IJt is interesting to note that as
violence increases in correctional
settings, reliance on static security
andpunitiveforms ofcontrol
commonly increases, whereas
more subtle and dynamic forms of
control (i.e., direct supervision
and interaction with inmates)
become less prominent. The very
measures that may be most effective are the ones that are less likely
to be used.
-FrankJ.Poporino
Ministry of the Solicitor General
of Canada, 19862

n the United States, there is an accelerating movement toward housing prisoners officially categorized as violent
or disruptive in separate, free-standing
facilities where they are locked in their
cells approximately 23 hours per day.
These prisoners are allowed out of their
cells one hour a day only for recreation
and other specific purposes such as family
visits or medical call, and on these occasions they are heavily shackled and tightly
escorted by two or three correctional officers. While in these cells, prisoners are
afforded minimal amenities.
Prison officials readily concede that the
only purpose of this level of security is to
inflict punishment. Other purposes-or
the consequences-of this extreme form of
incarceration, they say, are secondary and
beside the correctional point.
While reliance on solitary and harsh confinement is hardly new in American correctional history-witness Charles Dickens'
observations at the Eastern Penitentiary in
1842 or prisoners' lives at Alcatraz before
it was closed in 1963-the expansion and
widespread acceptance of supermax confinement is nonetheless a bleak, damaging,
and potentially dangerous prison practice.

I

ver the last several years we have seen an alarming increase in the number of
supermaximum security prisons, sometimes called control units. Prisoners who
O
have been categorized as violent or disruptive are held in almost total isolation. To
live in one of these institutions means to relinquish not only physical but psychological control over your life. Indeed, prisoners are often subjected to practices and
conditions which would be condemned by international human rights standards and
treaties.
Largely hidden from public view, these modern-day dungeons have gone almost
unnoticed by the media. We are devoting three articles in this issue of the NPPJOURNAL to the subject. Russ Immarigeon gives an overview of the trend toward the
supermax and suggests some alternative ways of dealing with the high-level security
prisoner. Jan Elvin takes a closer look at Pelican Bay, California's "answer" to the
gang problem. Many of us feel that Pelican Bay is the most frightening supermax built
to date. Peter McKinlay, former head of the Scottish Prison System, writes about "the
Barlinnie experiment," a success by most measures and surely a more constructive
and humane supermax than its U.S. counterparts.
-J.E.

Anews reporter once asked Pablo
Picasso what he would do if he were
locked in solitary confinement in a bare
cell (an arrangement not too far removed
from prisoners being housed in these new
super-maximum security facilities). He said
that he would draw on the walls with his
feces. Prisoners in this new generation of
punitive segregation cells also use their
feces, as the brief history of these institutions shows, albeit to throw at passing correctional officers. It is a cruder form of
expression. Aform of last-ditch despera;tion. Amatter of being pissed off and angry.
Acontinuation of disfunctional behavior. A
sign of deterioration.
In the past year, prisoners have rebelled
in at least two of these supermaximum
security prisons. In Southport, New York,
prisoners held a handful of correctional
officers hostage. In Indiana, prisoners went
on a hunger strike for several weeks,
protesting conditions of their confinement.
Nonetheless, "maxi-maxi" prisons have
received scant media attention, and few
prison administrators or observers have
proposed alternatives to these modern day
dungeons.
The Trend Toward Control Units
The Human Rights Watch report on

Prison Conditions in the United States

Prisoners in supermax facilities generally are allowed just one hour of out-ofcell time a day. They spend the remaining hours in solitary confinement.

referred to the "Marionization" of American prisons. Heretofore, the U.S. Penitentiary in Marion, Illinois was considered the
"toughest prison in America." It was the
place where allegedly the country's most
violent prisoners were held under the
harshest, most control-oriented penal conditions in the nation. The "Marionization"
of American prisons, therefore, suggests
that prison systems across the country are
increasingly relying on penal regimes that
emulate or exaggerate conditions and policies found at Marion.
There are unreleased reports citing that
at least 33 states have Marion-like facilities. This figure is probably overstated.
Many states have punishment cells, solitary
confinement units, or disciplinary segregation housing, but so far there is no evidence that they Rave separate facilities
designed to lock up prisoners approximately 23-hours per day.
Still, there is an extremely troubling
trend toward increased correctional
reliance of such facilities and policies. The
Federal Bureau of Prisons, in addition to
Marion, built a facility in Lexington,
Kentucky for women (now closed and
removed to Marianna, Florida) and is now
planning construction of a Florence,
Colorado facility that will replace Marion.3
Supermaximum security facilities can
now be found in many states. In Florence,
Arizona, a 960-bed Special Management
Unit (SMU) , which served as a model for
high-security prisons in California and
2

FAll 1992

Israel, opened in 1988 with 8-cell pod
units, non-contact visits, and a high level
of coercive force, which has abated some"
what in recent years. In California, 3,700
redwoods were cleared in the late 1980s
to construct the Pelican Bay prison complex that includes an SHU housing more
than 1,000 prisoners (each SHU cell cost
$74,000). (See NPPJOURNAL story, page
5.) "In this high-tech world of incarceration," the California Prisoner reported,
"prisoners are watched on screens in a
central control room. Their movements
are monitored by video cameras. Doors
open and close electronically. Prisoners
move at verbal commands issued over a
loudspeaker. The SHU cells have no windows, and a steel door with rows of 2-inch
round holes."4
In Southport, New York, the Department
of Correctional Services (DOCS) converted
a maximum-security prison into a largescale SHU housing over 600 prisoners.
DOCS maintains that this facility is no different than smaller SHUs (generally housing from 30 to 90 inmates) located at
other prisons in the state. This facility is
being used, according to DOCS officials, to
save operational funds and more effectively
manage a booming SHU population.
Officials in Connecticut have also opted to
isolate SHU prisoners at a facility that will
open next year. Smaller supermaximum
security prisons are operating in Indiana,
Maryland, and Missouri.
By and large, reliance and use of these

high-security facilities has expanded without thorough investigation of either what
impact these facilities will have on prison
operations and the behavior of prisoners
housed under these conditions or, especially, what alternatives exist to extreme
forms of punitive confinement. Few states
have seriously questioned the high-security
concept, even when investigated. Instead
states, and some local jurisdictions, have
expediently opted for these facilities under
various guises, including more effective
correctional matlflgement, cost-savings,
and deterrence of violent behavior.
In the case orPennsylvania, however,
one can see how seeds for the "Marion
model" were proposed (and in some cases
implanted) without adequate research and
development.
On October 23, 1989, a riot occurred at
SCI Huntington, a maximum security facility. Several days later another riot occurred
at SCI Camp Hill, a medium security
prison.
In its investigation of the causes of these
riots, the bi-partisan Senate Judiciary
Committee retained the services of Stephen
Grzegorek, a private prison management
consultant and a retired regional director

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Uberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, DC 20009
(202) 234-4830 FAX (~02) 234-4890
The National Prison Project is a tax-exempt foundation-

funded project of the AClU Foundotion which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional

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

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

The NPP JOURNAL 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 PROJECT JOURNAL

of the Federal Bureau of Prisons.
The following passage from the Committee's report shows the germination of a
federal concept onto state soil:
aMr. Grzegorek's testimony was
consistent with that ofthe
Department ofCorrections personnel, in observing that one of
the major causes ofthe Camp Hill
riots was confining maximumsecurity inmates in a mediumsecurity facility. ...He also testified
that classification offacilities on
a broader scale (several levels of
classification from minimum-to
maximum-security), while not a
panacea, would allow removal of
the predators, whether they are a
small band ofterrorists acting in
concert or individuals acting
singly. These inmates could be
housed in a super-maximum
security institution such as the
Federalfacility at Marion,
Illinois. "5
Critical Issues in the Use of Supermaximum Security Prisons
The use of supermaximum security confinement raises many important issues:
1. Definition: The language of corrections is reliably imprecise or misleading in
the case of super-maximum confinement.
In the literature, one quickly comes across
an array of terms: maxi-maxi prisons, highsecurity prisons, supermaxes, last resort
penitentiaries, control unit prisons, special
housing unit prisons, and so on. All of
these phrases are used to cover a generally
similar territory. This article groups all
these measures under the umbrella phrase,
supermaximum confinement.
2. Reliance: The mere existence of freestanding supermaximum confinement prisons, or Special Housing Units at maximum-security prisons for that matter, may
encourage and institutionalize expansion
of their use~In part, this argument is an
extension of the general prison-building!
prison-population dilemma (if you build
more prison space, it will soon be filled).
With limited supermaximum security space
(solitary confinement cells, etc.) prison
officials are essentially forced to overlook
or downplay certain forms of disruptive or
assaultive behavior or to work creatively to
address the roots of this behavior. There
are limits to this argument, however, particularly within specific correctional systems. At the U.S. Penitentiary at Marion,
for instance, the number of prisoners in its
Control Unit dropped from 470 in 1989 to
approximately 330 two years later, a period in which the federal prison population
THE NATIONAL PRISON PROJECT JOURNAL

was growing dramatically. Still, it is not difficult to find that certain numbers of prisoners sent to these facilities have been
overclassmed for one reason or another.
3. Legal or Legislative Review: In this
article, I do not cover court decisions that
address the constitutionality of conditioIi}
or of procedures that guide the operatiorl';
of these facilities. However, in 1991 a cJP.ss
action suit (Madrid, et al. vs. Gome.z, ease

No. C-90-3094, U.S. District Court for
Northern California) was filed by Pelican
Bay prisoners alleging that the prison does
not provide adequate medical services,
segregates prisoners without adequate
hearings and on the basis of uncorroborated allegations, allows excessive force,
denies meaningful access to the courts,
and submits prisoners to isolated conditions that are cruel, dehumanizing, and
inhumane. Legal suits brought by the
Committee to End the Marion Lock-Down
have so far failed to result in judicial condemnation of practices at the U.S. Penitentiary in Marion.
In New York, an unprecedented number
of groups, organizations, and watchdog
functionaries examining the Southport
Correctional Facility either approved of the
supermaximum security concept or failed
to raise concerns requiring deeper investigation. Investigations of the Southport
Correctional Facility started after prisoners
seized a handful of prison officers as
hostages. The Department of Correctional
Services (DOCS) limited its review to what
occurred at the prison when inmates
broke out of confinement. Council 82, the
state's correctional officer union, argued
that DOCS converted a new maximumsecurity prison into "maxi-maxi" confinement for the wrong reasons (to save
money).
Indeed, a legislative report found that
"(a)ny cost savings, that resulted from
program reduction, have occurred in the
areas of program services, academic education, vocational training, physical education and recreation, music education, and
arts and crafts, have been more than offset
by cost increases in two vital areas: the
supervision of inmates (security) and
health services." Nonetheless, the report
found that "the Southport SHU is a workable system and that the existence of
Southport will improve the disciplinary

system (of all prisons in the state)."6
The State Commission of Correction,
originally established to serve as an official
watchdog agency, weakly concluded that "a
central punitive segregation facility is a
desireable and feasible concept that can be
successfully implemented....depend (ing)
on a cooperative and mutually supportive
effort by line staff and facility management." Only Prisoners' Legal Services
(PLS) of New York challenged the current
disciplinary system in New York's prisons.
PLS argued tbft a "reparative justice"
approach ~4:Ruld be taken. Hearings, PLS
recommen9~d, should be held whenever
an inmate faces 30 days of confinement;
no disposition should be made without
regard to a range of reparative factors; no
confinement should exceed six months
except for murder or attempted murder;,
and the Alternative to Violence Program
(described later in this article) should be
used more extensivelyJ
Gender Issues
With the sole exception of the control
unit at Lexington, all the new facilities, as
far as I know, house men. No new supermaximum security prison is being built (or
women prisoners. This does not mean,
however, that women are not being held in
SHUs at different prisons in the U.S.
In Canada, Jane Miller-Ashton, national
coordinator for Correctional Services of
Canada's Federally Sentenced Women's
Initiative, reports that "Federally sentenced
women are not generally a risk to others;
however many do present a risk to themselves. Research suggests that a punitive
environment exacerbates and may contribute to women's self-directed violence.
Individuals in crisis who self-injure require supportive intervention. Punitive
responses, such as segregation, are inappropriate."
It is imperative that shifts toward greater
equity are directed toward least restrictive
alternatives, not augmentation of stricter
than necessary policies. It would be tragic
if disruptive female prisoners are treated
"similarly" to male disruptive inmates
without investigating more effective, less
intensive and costly approaches.
Recommendations for Reducing
Reliance on Super-maximum Security
Prisons:
1. Anational survey of disciplinary or
punitive segregation, including the use of
super-maximum security facilities, should
investigate the nature and extent of these
practices, the fiscal and behavioral impact
of these facilities, and alternatives to such
restrictive housing.
FAll1992

3

The information presented in this article
is cursory and incomplete. The article is
intended to raise, not settle, issues. There
has been, as far as I know, no effort to
conduct comprehensive, policy-oriented
research on the use of more restrictive
forms of penal confinement. Several years
ago, PLS of New York conducted a national
survey of the comparative amounts of time
states allowed prisoners to remain in solitary confinement. 8 Last year, Human Rights
Watch's Prison Project released its
overview of conditions within local jails,
state and federal prisons, and INS facilities, partially focusing on growing use of
high-security confinement. These studies
provide useful information and raise
important questions, but they are neither
up-to-date nor comprehensive.
Such a research project should be supported either by the U.S. Department of
Justice or a private foundation. Regardless
of funding source, the study must include
a wide range of persons knowledgeable
and sensitive to dynamics central to the
causes and prevention of violence within
correctional institutions. Such a project
should include academic researchers, correctional administrators and practitioners,
prisoners who have been housed in conditions under review in this study, and prisoner rights advocates.
2. States using or considering the use of
supermaximum security custody facilities
should undertake comprehensive study of
the impact or potential impact of such
facilities.
In particular, states should critically
examine the conditions and factors that
created the perception that such facilities
are needed, as well as examine what alternatives to supermaximum security confinement can be used to address the problems
that drive proposals for their use.
3. States should minimize length of stay
in such facilities.Currently, no national
standard-setting group has produced standards that reguIate appropriate or inappropriate lengths of stay under these
conditions. As a result, practices vary
widely from state to state.
4. States should establish Alternative to
Violence Programs (AVPs) to reduce prisoners' use of violence or threatening
behavior as a conflict resolution measure.
Information about the availability of AVP
workshops should be part of intake materials provided to offenders entering
prison.
The Alternative to Violence Program
(AVP) is designed to help prisoners learn
"new skills and attitudes" that will lead to
non-violent methods of resolving prison
(and eventually non-prison) conflicts.
4

FALL 1992

AVP was established in 1975 by prisoners at the Green Haven Correctional Facility
in upstate New York. Inmates at Green
Haven working with delinquent and at-risk
teenagers felt they were unable to commu-

::~

nicate the destructive consequences of violence to these youngsters. The prisoners
invited local Quakers to help them devise a
process to address the problem of using
violence to settle disputes.
Basic AVP workshops consist of presentations, discussions, and exercises organized around five themes: self-awareness,
affirmation, communication, conflict resolution skills, and community-building.
Advanced workshops deal with fear, anger,
communication, stereotyping, power and
powerlessness, and forgiveness.
ANew York prisoner told a reporter that
he remembered his first AVP workshop: "I
didn't want to give up the machismo in me
in a prison atmosphere. But the program
has taught me a lot. It's taught me how to
think before I react."9
5. Correctional officers should receive
training in non-violent conflict resolution
methods as part of their initial, and subsequent, training.
Programs such as AVP have been used
as a training tool with correctional officers. Often, these techniques are inappropriately supplied to officers in the midst
of, or fresh from, traditional assaultoriented training. Other forms of correctional management, such as unit management, may also be effective in reducing
tensions, conflicts, and fights among or
between inmates and prison staff. There
is, however, no overview available that
examines the feasibility or consequences
of such initiatives.
6. States should explore international
experiments with hard-core prisoners.
Other nations are also increasing their
use of supermaximum security confinement, although the United States relies on
it far more extensively. Furthermore, the
nature of these regimes outside the U.S.
are decidedly different. 10
In Canada, for instance, the first Special
Handling Unit (SHU) was opened in 1977.
By 1989, only two prisons contained SHUs.
Instead of merely punishing offenders,
however, Canadian SHUs are designed to
help prisoners change their behavior,
reduce their risk to others, and reintegrate
successfully into maximum-security cus-

tody as quickly as possible. There are also
formal policies to assure these objectives
are met, including 90-day assessment periods for inmates under consideration for
admission to a SHU; correctional plans
that integrate psychiatric, employment,
and personal development services; a
national review committee to provide
objective procedures for deciding who is
admitted to SHUs; and an annual review of
SHUs that includes recommendations for
improvement. 11
In Scotland, th, Barlinnie Special Unit
(BSU) , establislWd in 1973, is perhaps the
world's most fanious example of an innovative approach to prison violence. Interestingly, the BSU was first proposed by a
Scottish Home and Health Department
working party shortly after the death penalty
was abolished, and there was a rash of
assaults against prison officers. David J.
Cooke, a chief evaluator of this regime,
recently described aspects of this new
regime: "officer-prisoner relationships were
modified to resemble nurse-patient relationships; prisoners were given a significant
role in decision-making; they were held
responsible for their own behavior and that
of their peers; and they were taught to ver- .
balize their aggressive feelings."
Assaultive behavior was reduced dramatically. Behavioral changes were observed
almost from the point of entry to the unit.
Cooke explains: "On entry to the unit, prisoners gain relative autonomy; they
become responsible for forming their own
daily routine; together with others, they
become responsible for the day-to-day
running of the community. In such a setting a prisoner is less able to display antiauthority feelings because he can have
some influence in decision-making. As
control is less overt, it is less likely to
stimulate resistance. "12
A Call for Research

Experts such as Hans Toch argue that
super-maximum security prisons are used
as symbols to assure citizens that prisons
are under control and that disruptive prisoners are held in check. Nonetheless,
Toch also observes, in an interview with
the NPPJOURNAL, that "a civilized prison
system shouldn't be in the business of
expanding this segregation system." But
the "Marionization" of American prisons is
likely to continue unless research is conducted on the behavioral, fiscal, and psychological consequences of these regimes.
At the Southport hearings in New York
recently, sociologist David Ward, who is
completing the only longitudinal study ever
conducted on the men who were imprisoned at Alcatraz, bemoaned the fact that so
THE NATIONAL PRISON PROJECT JOURNAL

rI

1
(

few criminologists or other social scientists were examining the effects of longterm confinement, or confinement under
harsher than usual conditions.
Opponents of supermaximum security
prisons need to focus further attention
on innovative yet practical alternatives.
If experiences in Canada and Scotland
are any guide, this would include, at a
minimum, establishing new working
relationships between prisoners and
their keepers. In the long run, a "reparative approach," starting with PLS' recommendations, deserves more detailed
attention.•

Russ Immarigeon, afreelance writer living in Hillsdale, New York, is a regular
contributor to the NPPJOURNAL.
1 Inspector of Prisons for Scotland, 1844 Annual
Report, Her Majesty's Special Office, 1844, p. 5.
2 Frank]. Poporino, "Managing Violent Individuals
in Correctional Settings."journal ofInterpersonal
Violence, 1(2): 218, June 1986.
3 For a description of the High Security Unit for

women in Lexington, Ky. see 1) "Report of the High
Security Unit for Women, Federal Correctional
Institution, Lexington, Kentucky" by the National
Prison Project, Aug. 25, 1987, and 2) Richard Korn,
"The Effects of Confinement in the High Security Unit
at Lexington." Socialjustice, 15(1):8-19, Spring
1988. Information about the Florence Prison can.be
regularly found in Walking Steel: A Newsletter "I'
Devoted to the Abolition ofControl Unit Prisons;' a
publication of the Committee to End the Marion;~
Lockdown (P.O. Box 578172, Chicago, Illinois <'
60657-8172)."
4 Corey Weinstein, "Supermax Blues at pelicaJfBay
SHU." California Prisoner, August 1990, P.f7~
; Senator Stewart J. Greenleaf, Chairman, After
Camp Hill: The Keys to Ending Crisis. Harrisburg,
PA: Senate Judiciary Committee, 1990, pp. 14-15.
6 Daniel L. Feldman, Chairman, Tbe Southport
Correctional Facility: A Reportfrom the New
York State Assembly Committee on Corrections.
Albany, NY: NYS Assembly, December 1991, p. 10.
7 David C. Leven, "The Southport Correctional
Facility Rebellion: Inhumanity Breeds Inhumanity."
Testimony Submitted to the New York State
Commission of Correction, June 25, 1991
(Revised). New York, NY: Prisoners' Legal Services
of New York, Inc., 1991, pp. 8-14.
8 Prisoners' Legal Services, "A General Description of
the Disciplinary and Administrative Segregation

Programs for 40 States, the Federal System, and
Canada." New York, NY: Prisoners' Legal Services,
1989. Also see ThaddJohnson, "Nationwide Survey
of Restrictive Housing Bedspace in State Prison
Systems." Oklahoma City, OK: Oklahoma
Department of Corrections, January 15,1985.
9 Sue Rochman, "Alternatives to Prison Violence."
Corrections Compendium, 16(6): June 1991, p.7.
10 For a general comparison of international solitary confinement practices, see Penal Reform
International, "Facts about Solitary Confinement,"
PRI Newsletter, No. 10, June 1992, pp. 2-3. Penal
Reform International is an international group dedicated to the use of human rights standards for penal
confinement, th' elimination of discrimination in
penal measu~~§tabolition of the death penalty,
redUcing the as'e of incarceration worldwide, and
use of constfuctive, non-custodial sanctions that
encourage social reintegration and victim-sensitivity. For further information about the organization
and its membership, contact: Ms. Vivien Stern,
Secretary General, PRJ, 169 Clapham Road, London
SW9 OPU, UK.
II Rosemary L. O'Brien, "Special Handling Units."
Forum on Corrections Research, 4(3): September
1992, pp. 11-13.
12 David]. Cooke, "Containing Violent Prisoners: An
Analysis of the Barlinnie Special Unit." British
journal ofCriminology, 29(2): 140, Spring 1989.

Isolation,
Excessive Force
Under Attack at
California's
Supermax
BY JAN ELVIN
ut of a remote corner of Northern
California where redwoods once
thrived rises the Pelican Bay State
Prison, described by some as a "neoOrwellian l!.ell." Pelican Bay was designed
to weed out the prisoners officials term
the "worst troublemakers" from the
California prison system and house them
in one intensely regimented and secure
institution.
It appears to have succeeded in that purpose, at least from the officials' point of
view, but the human cost of that success
may be far greater than the gain.
Pictured from the air, the four-year-old
prison grounds resemble a photo of an
airplane crash in the wilderness-all trees
and greenery are shaved off the earth.
Concrete, asphalt and gravel have replaced
the redwoods. There is not a living thing
within reach of the 1,056 prisoners
housed in the Security Housing Unit

O

THE NATIONAL PRISON PROJECT JOURNAL

Prisoners ot Pelican Bay never leave their cells without being handcuffed and
put in chains. Here a prisoner is handcuffed through his food slot by an officer.

(SHU), the most restrictive housing. Even
sunlight has been removed.
"Pelican Bay officials have deliberately
designed a correctional facility which
subjects its inmates to isolation, violence
and terror," alleges a lawsuit filed on
behalf of Pelican Bay inmates in the fall of
1991 by attorneys from the San Francisco
firm of Wilson, Sonsini, Goodrich &
Rosati.
"State-of-the-art," said former Governor
George Deukmejian when he dedicated the
$218 million facility in 1989. "It will serve
as a model for the rest of the nation."

While these two opposing views continue
to polarize, the high-tech supermax has
come under scrutiny from a federal court.
Since it opened, prisoners have flooded
the courts with complaints, the most serious of which came from the SHU, where
prisoners are locked up 22-1/2 hours a
day in a heavily monitored and highly
restricted environment.
Referring to the number of petitions,
Chief U.S. District Judge Thelton
Henderson told a California newspaper, "It
was just very dramatic. There was a sense
(cont'd on page 21)
FALL 1992

5

A PROJECT OF THE AMERICAN CIVil UBERTIES fuNION FOUNDATION, INC.
VOL 7, NO.4, FAll 1992 • ISSN 0748-2655,J~

Highlights of Most
Important Cases
TUBERCULOSIS CASE A WAKE-UP CALL
Medical CarelDamages
Arecent federal court decision from Ohio
provides a foretaste of some of the potential
consequences for prison officials of the developing prison tuberculosis epidemic. In Hill v.
Marshall, 962 F.2d 1209 (6th Cir. 1992), the
appeals court upheld a damage award against
a prison official of $95,000 in compensatory
damages plus an as-yet-unspecified amount in
punitive damages to a prisoner who did not
receive prescribed preventive treatment for
tuberculosis.
The plaintiff, while incarcerated in a county
jail in Cincinnati, had had a positive skin test
for TB exposure and had been prescribed a
year's course of Isoniazid ("INH") and Vitamin
B-6. After a month he was transferred to a state
prison, where his medication was continued.
Two months later, he was transferred to
another state prison, the Southern Ohio
Correctional Facility, where he was issued a
new prescription. However, he alleged, he
never received the medication, despite appearing day after day at the "pill line" and making
repeated written...complaints to the infirmary
administrator and the deputy superintendent of
treatment.
Prison officials contested the plaintiff's allegations, but a jury found them convincing and
awarded him $95,000 in compensatory damages and $900,000 in punitive damages against
the deputy superintendent for treatment. (The
punitive damage award was set aside entirely by
the trial judge, but the appellate court has
directed that an appropriate punitive award be
made on remand.)
On appeal, the verdict was upheld. As to
liability, the court was unswayed by the defendant's argument that "the mere failure to act,
even in the face of a statistical pattern of misconduct, is an insufficient basis for holding a
supervisor liable for the constitutional viola6

FAll 1992

tions of her employee." It emphasized that
the plaintiff had alleged the defendant had
personally ignored his complaints, an allegation supported by the defendant's admission
that he referred inmate complaints concerning medication to a head nurse "whom he
knew to be wrongly altering and destroying
some of the inmates' prescriptions." (This
nurse's misconduct with regard to inmates'
medication is reflected in at least one other
published opinion. Wolfel v. Ferguson, 689
F.Supp. 756, 759 [S.D. Ohio 1987].) This
evidence met the §1983 "personal involvement" requirement, a conclusion the court
states in admirably concrete terms: "Hill
does not seek to hold Morris vicariously
liable for the head nurse's misconduct.
Rather, Morris personally had a job to do,
and he did not do it." 962 F.2d at 1213
(emphasis in original).
The jury's finding of deliberate indifference was supported by the plaintiff's "strong
proof"-based upon a report commissioned
by the state legislature-of a "pervasive pattern of indifference to the inmates' medical
needs generally" in the prison. In that factual
context, the defendant's "failure to do his
job-to review and respond to inmates' medical needs-was so likely to result in the violation of the inmates' constitutional rights
that we find that he was deliberately indifferent to their serious medical needs." 962 F.2d
at 1214. In other words, the fact that a medical care system is generally disorganized or
nonfunctional serves to heighten the responsibility of supervisory officials to attend personally to individuals' complaints of egregious medical deprivations.
Practitioners should note this last point
well, since it supports the relevance of broadranging discovery and evidentiary presentations even in individual damage cases arising
from deficiencies in prison medical care.
Indeed, the appeals court had earlier
reversed a defendants' verdict in this case
reached during a trial in which the abovementioned legislative report was excluded
from evidence. On retrial, with that report
before it, the jury returned the present plaintiff's verdict.

Where's the D'lmage?
The events atJ~sue in Hill v. Marshall took
place in I981,rbut the case is of particular
interest because of the more recent resurgence of tuberculosis in prisons and jails. In
addition, the decision addresses what is sure to
be a much-litigated issue with respect to damages, and resolves it in a way that raises the
stakes for prison officials in maintaining a reliable system of follow-up care and medication
delivery.
Despite the size of the damage award, Mr.
Hill did not develop active tuberculosis in the
nine years that passed before the 1990 trial.
Defendants therefore alleged that he had suffered no compensable loss. But the court
held:
Hill has suffered an actual injury,
in that he was prevented, by Morris's
indifference to his medical needs,
from reducing his risk ofdeveloping
tuberculosis by apprOXimately ninety
percent through INN. Because he
received INHfor part, but not all, of
the prescribed year, Hill may be in
an even worse position than if he
had not received INH at all, because
the tuberculosis bacteria that are in
his system may have become resistant to the drug. Hill testified that he
suffered a great deal ofmental
anguish on this account....
962 F.2d 1209. With respect to his
increased risk of developing the disease, the
court held that he "did not have to show a
more than 50% risk of developing active
tuberculosis, only that his risk had increased
due to the deprivation." Id. at 1214. Accord,
Clark v. Taylor, 710 F.2d 4, 14 (1st Cir.
1983) (permitting §1983 award based on
10% likelihood of developing bladder
cancer).
Under this ruling, then, any prisoner whose
tuberculosis medication program is substantially interrupted by a malfunctioning prison
medication delivery system may be entitled to
a substantial award of damages, even if there
have been no measurable medical consequences by the time of trial. If the prospect of
civil damage awards has any deterrent effect
on official behavior, Hill v. Marshall ought to
be a loud wake-up call.
THE NATIONAL PRISON PROJECT JOURNAL

Hill's view of damages will probably not go
uncontested in future cases. In fact, there is
already a difference among jurisdictions as
to part of it. In Sypert v. United States, 559
F.Supp. 546 (D.D.C. 1983), the federal
court, applying Virginia law under the
Federal Tort Claims Act, held that exposure
to tuberculosis without development of the
active disease did not constitute the "physical
injury" that is required before a plaintiff may
recover tort damages for mental anguish. By
contrast, in Plummer v. United States, 580
F.2d 72 (3rd Cir. 1978), another Federal
Tort Claims Act case, the court observed that
under Pennsylvania law, such damages may
be awarded on a showing of a "physical
impact, however slight"-a requirement easily met by the "impact" of the tubercle bacillus. In addition, Pennsylvania has adopted
the "zone of danger" rule, which permits
damages to be awarded to persons placed in
physical danger, without regard to actual
"impact." 580 F.2d at 76. (Neither Sypert
nor Plummer addressed the future risk of
developing the disease, since the plaintiffs in
those cases had received appropriate treatment and any risk of activation of the disease
was held to be balanced by their increased
immunity to outside infection.)
The Supreme Court has been supremely
unhelpful in spelling out a clear method for
deriving damage rules for civil rights cases.
See Smith v. Wade, 461 U.S. 30, 34 (1983)
("In the absence of more specific guidance,
we looked first to the common law of torts
[both modern and as of 1871 l, with such
modification or adaptation as might be necessary to carry out the purpose and policy of
the statute."); cf id. at 93 (O'Connor, J., dissenting) ("The battle of the string citations
can have no winner.") However, the federal
courts have generally avoided tort law technicalities in determining the basic measure of
damages, and have taken a broadly inclusive
approach reflecting all elements of damages
that are supported by the record and proximately relat$;d to the defendant's misconduct.
See, e.g., Wright v. Sheppard, 919 F.2d 665,
669-70 (lIth Cir. 1990) (trial court directed
to consider evidence of plaintiff's pain,
humiliation, emotional distress, mental
anguish, physical injuries and resulting limitation of ability to work, nightmares, and loss
of his house, his job, and his wife).
Prisoners and their counsel should therefore be optimistic that the approach of Hill v.
Marshall will prevail in § 1983 litigation and
that substantial damage awards are likely in
TB-risk cases where they can prove deliberate indifference. If only negligence can be
proven, the damage rules of the forum state
will be determinative.

THE NATIONAL PRISON PROJEG JOURNAL

TB's Back? It Never Left
Hill v. Marshall is far from the first prison
tuberculosis case. Prisoners' complaints
about official neglect of TB surfaced in court
long before the modern era of prison litigation, and were dealt with in the fashion of the
times. See, e.g., State ex reI. Baldwin v. ;t
Superintendent, 63 A.2d 323 (Md.App. ·A:
1949) (prisoner's complaint that he had;y
been denied proper treatment for TB in.d\.e
prison hospital and that the superintendent
had ignored his complaints did not afWtd a
basis for habeas corpus relief and "should
be addressed to the Board of Correction
which is responsible for proper prison management"); Bush v. Babb, 23 Ill.App.2d 285,
162 N.E.2d 594 (Ill.App. 1959) (failure of
Cook County Jail authorities to provide adequate TB care was not actionable because
decisions concerning jail medical care are
"quasi-judicial" and protected by immunity).
After the demise of the "hands-off" doctrine, courts recognized exposure to or failure to treat tuberculosis as actionable on the
same basis as other claims of deliberate
indifference to serious medical needs. See,
e.g., Freeman v. Lockhart, 503 F.2d 1016
(8th Cir. 1974); Wattenberg v. New York
City Department ofCorrection, 376
F.Supp. 41 (S.D.N.Y. 1974); see also
Woolsey v. Beto, 450 F.2d 321 (5th Cir.
1971) (allegation that plaintiff's TB was
activated by inappropriate work assignments
and segregation stated a claim). Failure to
isolate or treat for TB periodically surfaced
in conditions-of-confinement litigation of the
1970s and 1980s, especially in Southern
prisons and jails. See, e.g., Grubbs v.
Bradley, 552 F.Supp. 1052, 1069, 1129
(M.D.Tenn. 1982) (citing failures to comply
with internal procedures and state law for
TB monitoring, reporting and screening;
relief limited to upgrading medical staff);
Nicholson v. Choctaw County, Ala., 498
F.Supp. 295, 299-300, 309 (S.D.Ala. 1980)
(citing failure to respond to tuberculosis
among jail population); Feliciano v.
Barcelo, 497 F.Supp. 14,28,38 (D.P.R.
1979) (noting the occurrence ofTB epidemics
and requiring medical screening for TB and
other diseases); Holt v. Hutto, 363 F.Supp.
194, 200 (E.D.Ark. 1973) (it "goes without saying" that tubercular inmates must be segregated; the court notes that prison officials' problem is complicated by the closing of the state
tuberculosis sanatorium).
The most thorough judicial examination of
prison tuberculosis issues appears in a case
arising from a tuberculosis epidemic at the
Minnesota Correctional Facility that began after
the prolonged neglect of an inmate admitted
with active TB in early 1982 and that ultimately
resulted in the infection of several hundred
inmates and the development of active TB in at

least eight. DeGidio v. Pung, 704 F.Supp. 922,
933 (D.Minn. 1989).
In a lengthy opinion, the federal district
court found that the response by prison officials and the state Department of Health
amounted to deliberate indifference. It cited
the failure to diagnose promptly and treat the
initial cases, the failure to advise inmates of
their exposure, the failure to test all inmates
even after all staff had been tested, the failure
to develop a policy and protocol, and leaving
patient education to an unqualified laboratory
technician. ltSj, at 937-59.
More gen~y, the court cited a "failure of
coordinatiQp." in which" [nl 0 one claims
ultimate responsibility for the many supervisory functions within the health services
unit." It described a "passing of blame and
responsibility between the Department of
Health, the administrative director of health
services, and the staff physicians" in which
"[e1ach person describes his or her role narrowly, and disclaims ultimate responsibility
for directing the effort at controlling tubercu10sis." ld. at 957.
The defendants argued that viewed individually, the specific claims of inadequate or
improper medical care did not violate the
Constitution, but the district court rejected
their approach: "When all of defendants'
omissions and instances of negligence are
viewed in the whole...the breaches of established norms are more than trivial." ld. at
956.
Despite these findings, the district court
denied injunctive relief on the ground that
after 1986 defendants had made "great
progress" and that the constitutional violation was not likely to recur as of the time of
trial. ld. at 959-60; see also DeGidio v.
Pung, 125 F.R.D. 503 (D.Minn. 1989)
(denying the parties' post-trial motions).
(Damages were not at issue; the plaintiffs'
damage claims were pursued separately in
state court.)
This judgment was not directly appealed,
but the district court's conclusions came
under appellate review in the unusual context of an attorneys' fees application. The
district court found that the plaintiffs were
"prevailing parties" entitled to attorneys' fees
because the suit was a "catalyst" that in large
part prompted the defendants' reform
efforts. DeGidio v. Pung, 723 F.Supp. 135,
138 (D.Minn. 1989). On appeal, the Eighth
Circuit had to determine whether these
reform efforts were "required by law," and
therefore had to review the district court's
findings that the Eighth Amendment had been
violated. It affirmed the district court's conclusion that "a consistent pattern of reckless
or negligent conduct is sufficient to establish
deliberate indifference" and that the record
showed such a pattern on the defendants'
FALL 1992

7

part.ld. at 533. In particular, it cited with
approval the district court's findings concerning the lack of adequate organization, control
and overall supervision in the health services
program Id. at 531.

Better Get Organized
DeGidio is only the latest and clearest judicial authority for what ought to be a self-evident proposition: that delivering medical care
to hundreds or thousands of people, especially those confined in a coercive institution that
limits their ability to seek medical care freely
and directly, is a systems problem requiring
systemic solutions. See, e.g., Newman v.
Alabama, 503 F.2d 1320, 1331 (5th Cir.
1974) ("disorganized lines of therapeutic
responsibility" contributed to an Eighth
Amendment violation); Tillery v. Owens, 719
F.Supp. 1256, 1305-06 (W.D.Pa. 1989) (lack
of proper administration of medical services
and "general disorganization" of nursing services contributed to an Eighth Amendment
violation), affd, 907 F.2d 418 (3rd Cir.
1990); Lightfoot v. Walker, 486 F.Supp. 504,
522-24 (S.D.lIl. 1980) (organization and
administration of health care generally found
inadequate) .
Contagious diseases present the clearest
need for systemic approaches to prison
health care, including supervision and followup to ensure that both overall policies and
individual treatment decisions that are adequate on paper are actually carried out in the
institutional setting. The need is particularly
great in connection with tuberculosis, for two
reasons. First, in many people it has a long
and asymptomatic incubation period, presenting a risk of Widespread undetected transmission in an institution that lacks proper detection and control procedures or that fails to
carry them out consistently and vigilantly.
This is exactly what happened in DeGidio.
Second, TB requires long-term follow-up
treatment to ensure that the disease is eradicated and that it does not develop into a
drug-resistant, possibly intractable strain as a
result of truncated or interrupted courses of
medication. These concerns are heightened
by the prevalence of HlV infection in prison
populations, since HlV-infected persons are
particularly susceptible to the disease and
since their depressed immune systems render
the usual diagnostic methods ineffective in
many cases.
Ultimately, both DeGidio and Hill v.
Marshall are about the same thing: the necessity of coordination, follow-up and supervision in prison medical care systems. A~ the
quality and quantity of prison medical care
personnel have improved over the past two
decades, these issues of organization and
administration have emerged as the most significant set of problems in prison health care.
8

FAll1992

With the spread of HlV infection among the
poor populations who are concentrated in
prison and with the development of drugresistant strains of the disease, the importance of solving them, for prison administrators and for the public health generally, can
only become greater.

Other Cases
Worth Noting
U.S. COURT OF APPEALS

Sanitation/Heat and
VentilationlNegligence, Deliberate
Indifference and Intent
Jackson v. Duckworth, 955 F.2d 21 (7th
Cir. 1992). The plaintiff alleged that he was
forced to live with "filth, leaking and inadequate plumbing, roaches, rodents, the constant smell of human waste, poor lighting,
inadequate heating, unfit water to drink,
dirty and unclean bedding, without toilet
paper, rusted out toilets, broken windows,
[and] ...drinking water contain ling] small
black worms which would eventually turn
into small black flies." (22) These allegations met the "objective" component of the
Eighth Amendment. Asubjective component
is also required: "actual knowledge of
impending harm easily preventable."
(Citation omitted, emphasis added by court.)
At 22: "A failure of prison officials to act in
such circumstances suggests that the officials actually want the prisoner to suffer the
harm. If the harm is remote rather than
immediate, or the officials don't know about
it or can't do anything about it, the subjective component is not established and the
suit fails."
Use of Force/DamagesAssault and Injury

Flowers v. Phelps, 956 F.2d 488 (5th Cir.,
vacated in part on othergrounds, 964 F.2d
400 (5th Cir. 1992). The plaintiff was beaten
while in restraints with no provocation in the
same prison that gave the world Hudson v.
McMillian. (This time, a supervisor notified of
the incident told the officers that "when they
pulled off something like that to be sure no one
sees it.") The district court awarded $3,000 in
actual damages, $25,000 in punitive damages,
and $1,406.25 in attorneys' fees.
The district court's finding of a deliberate use
of totally unnecessary force was sufficient to
establish liability even without any "objectively
significant injury." (The injuries included moderate swelling and probable sprain of the plaintiffs ankle, a small abrasion, and limited range
of motion because of pain.)

Protection from Inmate Assault!
Damages-Assault and Injury
Doe v. Sullivan County, Tenn., 956 F.2d
545 (6th Cir. 1992). The 19-year-old, slight
and mentally deficient plaintiff was sexually
assaulted with a toothbrush in his anus when
he and other inmates were "'slammed'
together" while officers were removing another inmate from the multiple-inmate cell. The
jUry awarded $100,000 in compensatory
damages against the county, the sheriff and
the chief jailer, and the court awarded
$40,000 on state,aw claims against the
county.
. .•
Evidence that~fue rate of violence reached
about four inddents per month per 100
inmates, plus a jailer's testimony that inmates
stated every day that they were in danger and
wanted to be moved, supported an Eighth
Amendment claim.
Eighth Amendment instructions holding
that there must be a "pervasive risk of
harm," and not "pervasive risk of homosexual attack," were proper. The jury could properly consider the inmate's appearance and
intelligence level in determining the likelihood he would be attacked. The instructions
are quoted at length. They define deliberate
indifference as requiring that a defendant
"was aware that a particular act or inaction
was certain or substantially...certain to
deprive the plaintiff of his constitutional
rights and that the defendant decided to act
or not to act in spite of that knowledge."
(555)

Pleading/Confiscation and
Destruction of Legal Materials/
Protection from Inmate AssaultlLaw
Libraries and Law Books
Brownlee v. Conine, 957 F.2d 353 (7th
Cir. 1992). Acomplaint may not be dismissed
because it is "conclusory." At 354: "All the
complaint need do to withstand a motion to
dismiss for failure to state a claim is 'outline
or adumbrate' a violation of the statute or
constitutional provision upon which the
plaintiff relies, ...and connect the violation to
the named defendants ...."
An allegation that documents the plaintiff
needed for a lawsuit were confiscated and
that defendants refused to return them,
resulting in dismissal of the plaintiff's suit,
was not frivolous under Bounds.
An allegation that a defendant "deliberately loosed mentally ill inmates on the plaintiff
so that they would assault him" was not
frivolous under the Wolfish "punishment"
standard.
An allegation that a defendant refused to
allow the plaintiff to see a dentist though he
was in severe pain was not frivolous under
the Wolfish "punishment" standard.
At 355: "Most prisoner civil rights cases
THE NATIONAL PRISON PROJECT JOURNAL

are frivolous, but district judges, busy as they
are, must not assume that all are and dismiss
them by rote. They may not throw out the
haystack, needle and all."

r

Religion-Practices
Richards v. White, 957 F.2d 471 (7th Cir.
1992). The plaintiff alleged that his "Thelemic" religion required him to meditate for
half an hour in privacy each day, requiring
either that he be placed in a single cell or be
provided with a private place in the institution. Denial of this request was reasonable
under TurnerlO'Lone because either alternative would have been substantially burdensome to the prison administration.
The Thelemic faith is allegedly "a private
religion where each disciple or aspirant follows his own path without need to congregate or receive any instruction other than
that included in books," with no prescribed
religious practices. Defendants conceded it is
a bona fide religion, and the plaintiff apparently established that it is tax exempt. The
court chides prison officials for their cavalier
treatment of it even though they did not act
illegally.
Use of Force-BeatingIDamagesAssault and Injury
Bogan v. Stroud, 958 F.2d 180 (7th Cir.
1992). The plaintiff, who admittedly stabbed
an officer with a homemade knife and pled
guilty to attempted murder for it, complained
that the officer stabbed him back and that
other officers physically abused him after he
had been subdued. Ajury awarded him no
compensatory damages and $5,000, $1,000
and $1,000 respectively in punitive damages
against the three officers.
The district court ruled that the defendant's
guilty plea established that he had stabbed the
officer without legal justification but did not
preclude him from alleging excessive force
before and after that stabbing. That ruling is
not at issue on appeal.
Defendan!e waived their argument that an
award of zero compensatory damages barred an
award of punitive damages by failing to object
to the relevant instruction at trial. The failure to
award compensatory damages does not require
a remittitur of the punitive award, and the
award is reasonable in amount.
The finding of liability is upheld. At 185:
"Repeatedly stabbing, beating and kicking a
prisoner who has been disarmed and
knocked to the ground does qualify as a use
of force 'for the very purpose of inflicting or
causing harm...rather than...a good faith
effort to maintain security or discipline.'"
Location
Bannum, Inc. v. City ofLouisville, Ky.,
958 F.2d 1354 (6th Cir. 1992). Azoning
THE NATIONAL PRISON PROJECT JOURNAL

ordinance requiring a special permit for
"community treatment centers" for prisoners
but not other kinds of group homes denied
equal protection under the holding of City of
Cleburne v. Cleburne Living Center.
Prison Records/Federal Officials an~
Prisons
<)l
Sellers v. Bureau ofPrisons, 959 F.2d~D7
(D.C.Cir. 1992), superseding 952 F.2dJ~2~
(D.C.Cir. 1992). The plaintiff complain~d that
the Bureau of Prisons and the Parole ,,~;
Commission maintained incorrect information about him. His claim was not mooted by
the Parole Commission's subsequent decision
that they would not have granted him parole
anyway since he also made claims about the
use of the misinformation by the Bureau of
Prisons and about other uses of it by the
Parole Commission.
The agencies did not satisfy the mandates
of the Privacy Act merely by noting that the
plaintiff disputed the information in the
records. At 312:
Appellees contend that they cannot
be expected to verify conclusively
the accuracy oftheir inmate files,
especially files used as evidence in
a parole decision, anytime an
inmate challenges the information
contained in those files. We disagree. As long as the information
contained in an agency's files is
capable of being verzfied, then,
under [the Privacy] Act, the agency
must take reasonable steps to
maintain the accuracy ofthe information to assure fairness to the
individual. If the agency wilfully or
intentionally fails to maintain its
records in that way and, as a result,
it makes a determination adverse
to an individual, then it will be
liable to that person for money
damages.
Hazardous Conditions and
Substances
McKinney v. Anderson, 959 F.2d 853 (9th
Cir. 1992). The plaintiff complained of exposure to environmental tobacco smoke. The
appeals court held that he had stated a claim
for injunctive relief and the Supreme Court
vacated and remanded after Wilson v. Seiter.
At 854:
The Court's establishment in Seiter
ofa subjective component for an
Eighth Amendment claim does not
vitiate our determination ofwhat
satisfies the objective component.
Our holding that it is cruel and
unusual punishment to house a
prisoner in an environment that
exposes him to levels ofETS that

pose an unreasonable risk ofharming his health constitutes the objective component ofMcKinney's Eighth
Amendment claim. Seiter simply
adds another element to an Eighth
Amendment claim that McKinney
must prove.
The Supreme Court has granted certiorari
in this case. Helling v. McKinney, #91-1958
(6/29/92).
Protection from Inmate Assault!
Hygiene/Ne~ligence, Deliberate
Indifferen.~~, and Intent!AIDS
Young v. ffuinlan, 960 F.2d 351 (3rd Cir.
1992). The plaintiff, who described himself
as "small, young, white and effeminate,"
alleged that he was raped and threatened with
rape and assault by a series of cellmates at
Lewisburg. His repeated requests for protective custody and to be moved away from his
cellmates were ignored, and he flooded his
cell. He was then put into a "dry cell" with no
toilet, toilet paper or running water for four
days, and was not let out to use a toilet or to
empty the plastic urinal he was given. After
his release, he was again repeatedly denied
protective custody.
At n.20: "In Young's case, we find that the
totality of the conditions of his imprisonment,
namely the protection and sanitation afforded
to him, are sufficiently serious to satisfy the
objective component of the Wilson Eighth
Amendment analysis."
At 360-61:
... [A] prison official is deliberately
indifferent when he knows or should
have known ofa sufficiently serious
danger to an inmate. We stress, however, that in constitutional context
"should have known"...is aphrase of
art with a meaning distinctfrom its
usual meaning in the context ofthe
law oftorts....
It connotes something more than a
negligent failure to appreciate the
risk..., though something less than
subjective appreciation ofthat risk.
The "strong likelihood" of [harm]
must be "so obvious that a lay person would easily recognize the
necessity for" protective action, ...;
the risk of.. injury must be not only
great, but also sufficiently apparent
that a lay custodian'sfailure to
appreciate it evidences an absence
ofany concern for the welfare ofhis
or her charges.
[Emphasis in original, citations omitted.]
The plaintiff's evidence that he was subjected to "pervasive harm" and that he repeatedly
notified, but failed to get action from, prison
officials, precluded summary judgment for
defendants under the deliberate indifference
FAll1992

9

standard. The court notes that Lewisburg, with
2.8% of the federal prison population, had
10% of inmate assaults and 50% of inmate
homicides, suggesting that prison authorities
"could not have lightly dismissed Young's allegations as improbable."
At 23: "Prison officials...are not required to
provide protective custody to every inmate who
asserts he was assaulted or threatened. Nonetheless, prison officials should, at a minimum,
investigate each allegation of violence or threat of
violence."
The plaintiff's allegations of placement in a
"dry cell" state an Eighth Amendment claim
given his reason for flooding his cell, as did
the denial of access to toilet facilities, toilet
paper, drinking water, the opportunity to
empty his plastic urinal and to wash his
hands, and the officers' threats to chain him
to a steel slab if he complained. (In fact,
these allegations would be an "abomination"
if proved.) The court notes that the plaintiff's
conditions are all the more revolting because
he is HIV positive and therefore more susceptible to infection and disease.

Procedural Due ProcessDisciplinary Proceedings/Grievances
and Complaints about Prison
Nicholson v. Moran, 961 F.2d 996 (1st
Cir. 1992). The plaintiff complained to various law enforcement agencies that he had
been beaten by officers; the Department of
Justice concluded there was no "prosecutable violation"; the plaintiff was then disciplined for "providing false or fabricated
information. "
The plaintiff, by way of the "Morris Rules,"
has a state-created liberty interestin staying in
general population. His allegation that he was
found guilty without "substantial evidence"
(required by the Morris Rules) stated a
claim. The district court's dismissal is
reversed and the court is directed to consider the plaintiff's First Amendment claim as
well.
DISTRICT COtJRTS
Mental Health Care/Medical CareAccess to Outside Care
Cameron v. Tomes, 783 F.Supp. 1511
(D.Mass. 1992). The plaintiff was adjudged
a "sexually dangerous person" based on two
previous sexual assault convictions and
involuntarily committed to a "Treatment
Center for the Sexually Dangerous." His
claim concerning his treatment is adjudicated under the Youngberg standard, as well
as the deliberate indifference standard,
since he was committed for "treatmentnot punishment." (ISIS) Deliberate indifference afortiori violated the Youngberg
standard.
10

FALL 1992

The denial by security personnel of plaintiff's request for medical treatment outside
the prison, contrary to the unanimous recommendations of the mental health professionals, violated the Youngberg standard.
Transportation of the plaintiff, who has
only one leg, to outside appointments under
armed guard and in shackles, violated the
Youngberg standard in the absence of any ;;evidence of its necessity.
. ."
Leaving the plaintiff in the hospital unit/.:
where he could not receive mental health~~
care that he required, because he refused'to
sign a consent form for double-bunkingand
because they refused to consider modifying a
room to accommodate his wheelchair, violated the Youngberg standard and constituted
deliberate indifference.
Subjecting the plaintiff to a forcible strip search
without consultation with a mental health professional violated the Youngberg standard. The
court reaches the same conclusion with respect
to oral cavity searches after the plaintiff takes his
medication.
The application of standard disciplinary
procedures to the plaintiff, which sometimes
amounted to punishing him for manifestations of his psychological problems, violated
the Youngberg standard when done without
consultation with mental health clinicians.

Law Libraries and Law Books
Story v. Morgan, 786 F.Supp. 523 (W.D.Pa.
1992). The plaintiff, a Pennsylvania prisoner,
was transferred to a federal prison in
Indiana. The plaintiffs allegations that he
lacked the ability to pursue his Pennsylvania
court case because of the lack of
Pennsylvania legal materials stated a claim for
denial of access to courts. At n.3: prior cases
"make it quite clear that when a state prisoner is transferred out of state to a federal
prison, the transferring state, and not the federal government, bears the responsibility for
safeguarding the prisoner's right of access to
the courts."
CrowdingIModification ofJudgments
Baker v. Holden, 787 F.Supp. 1008
(D.Utah 1992). Defendants moved to vacate
preliminary injunctions imposed in 1986 and
1988 barring double-ceiling in certain cell
areas. The court treats the question presented as the merits of the constitutional claim
rather than the modification of a judgment,
presumably because there was no final
judgment.
Adequacy of shelter is a basic human need.
In determining whether double-ceiling denies
it, the court considers (at 1017):
(I) cell size; (2) length ofrequired
time within the cell; (3) adequacy of
ventilation; (4) availability ofadjacent common space and other gener-

al common space during hours
outside the cell; (5) adequacy of
showers; (6) personal safety from
violence within the cell; and (7)
opportunities for participation in
educational or employment
programs.
At 1018:
Deliberate indifference...appears to
require the shOWing ofknowledge of
a need and an unwillingness to act
on the part ofthe prison officials....

, * * *
This courtfinds that the subjective
state ofmi(!tI of"deliberate indifference" has existed andpresently
exists as to areas where double
ceiling objectively would render the
conditions ofconfinement unconstitutional [and defendants persist in
their intention to double cell].
The court dissolves the injunction as to
some cell areas, citing improvements in fire
safety and other renovations, limited lock-in
times, etc. The court continues the injunction
as to areas with small cells with no windows,
no adjacent common area, and inadequate
fire escape and cell-opening mechanisms,
and as to areas that have not yet been
renovated.

Suicide Prevention
Bragado v. City ofZion/Police Dept., 788
F.Supp. 366 (N.D.Ill. 1992). The plaintiff's
decedent hanged herself in jail after her sisters notified the police of her suicidal condition; the police were also aware of a note she
had written stating that her "life is over
now," and she threatened to kill herself
while in her cell. The defendants also violated several aspects of the Illinois Municipal
Jails and Lockup Standards, which violations
"arguably show 'deliberate indifference' or
recklessness amounting to such indifference." (372)
It was clearly established in 1988 that "the
'deliberate indifference' standard applied to
the handling of suicidal pretrial detainees,
and that failure to take special precautions
toward such detainees could violate that
standard." (372)
Defendants were not entitled to summary
judgment on state law claims based on a state
statute that immunizes them unless their conduct is "willful and wanton." The definition of
that phrase is essentially the same as deliberate indifference.
Procedural Due ProceSS-Visiting
Gavin v. McGinnis, 788 F.Supp. 1012
(N.D.IlI. 1992). An allegation that prison officials denied the plaintiff visits with his family
for six months stated a claim, but the court
declines to determine at this stage whether
THE NATIONAL PRISON PROJECT JOURNAL

regulations providing that prisons "shall permit every committed person to receive visitors" create a liberty interest.

FEDERAL RULES

Discovery/ln Forma Pauperis
Badman v. Stark, 139 F.R.D. 601 (M.D.Pa.
1991). The court declines to issue a document subpoena against non-party witnesses
because the plaintiff did not tender witness
fees and the in forma pauperis statute does
not excuse litigants from paying witness fees.
The defendants cannot be required to pay the
expenses of depositions or other discovery
either. However, they must provide the plaintiff with a copy of the deposition they took of
him.

Appointment of Counsel
Rose v. Racine Correctional Institution, 141
F.R.D. 105 (E.D.Wis. 1992). The plaintiff
claimed that he has a learning disability and is
unfamiliar with the law and sought the appointment of counsel.
The Seventh Circuit has held that such
requests should be denied outright unless the
plaintiff has made reasonable efforts to retain

counsel. The court expresses "great concern
with the reasoning of the circuit court as it
applies to indigent prisoners" and expresses
this concern eloquently and in great and
intelligent detail.
The court denies the motion for appointment of counsel subject to renewal upon ~l:
showing that he tried to retain counsel or:Was
effectively precluded from doing so.

Discovery/Use of Force

i'~\

Miller v. Pancucci, 141 F.R.D. 2l):2{
(C.D.Cal. 1992). The plaintiff in a police
brutality case is entitled to discovery of
complaints, tort claims, and investigative
files against the individual defendants alleging brutality, excessive or unreasonable use
of force, or various forms of dishonesty,
but not those alleging types of conduct not
pled in the complaint, such as racism, prejudice, or misuse of firearms or equipment.
The court can discern "few more relevant
documents" than these defendants' training
and psychiatric-psychological records.
(296)
Defendants' privilege claims are governed
by federal law; the court rejects the view that
state law should be applied because it is

Index to Articles
the Case Law Report section. Those listings
are identified by a "CL" at the end of the issue
reference, Le., Vol.712/6CL.

-AACCESS TO THE COURTS
Mecklenburg prison obstructs lawyer access
312
Florida opens capital appeals office
7/1
The serious shortage of death penalty lawyers
12/1
Lawsuit increases legal access on Louisiana
death row
Vol.612/15
ADMINISTRATIVE SEGREGATION
Ad. seg. conditions in Arizona prison
challenged
1/3
Settlement reached in Arizona case
5/4
AIDS (Acquired Immunodeficiency Syndrome)
HlVVIRUS

Note: In Spring 1990, the NPPJOURNAL
began using a volume-numbering system. In
the index below, articles from issues prior to
Spring 1990 list issue and page numbers only
(Le., 312). Articles from the Spring 1990
issue onward list volume, issue and page
numbers (Le., Vol. 512/6) . Please note that
this Index includes only select listings from
THE NATIONAL PRISON PROJECT JOURNAL

NPP gathers the facts on AIDS in prison 6/1
Results of AIDS in prison survey (1985) 6/4
Medical expert cites problems in AIDS
screening
6/5
Balanced response needed to AIDS in prison
711

AIDS policies raise civil liberties concerns
10/10

inconsistent with federal law and policy.
Claims of "official information" privilege are
governed by a balancing test that is "moderately pre-weighted in favor of disclosure."
(300)
Procedurally, the official information privilege must be invoked by name with respect
to each question or request and must sufficiently identify the documents so as to afford
the requesting party an opportunity to challenge the assertion of privilege. The party
must submit with its response a declaration
or affidavit fr\m the head of the department
which hasc~jltrol over the matter. At that
point, the .r~questing party must make a good
faith determination of whether to proceed
and attempt to work the matter out with
opposing counsel; the court endorses the use
of protective orders. If the threshold requirements for invoking the privilege do not
appear in the papers, the privilege assertion
will be overruled in its entirety without in
camera inspection.•
John Boston is the director ofthe Prisoners'
Rights Project, LegalAid Society ofNew York.
He regularly contributes this column to the NPP
JOURNAL.

NPP establishes AIDS Project
11/16
NPP releases AIDS Bibliography
12/13
Correctional health care: past and future
13129
Astudy of New York inmates with AIDS 15/7
NPP gathers statistics on AIDS in prison
16/5
Results of AIDS in prison survey (1988) 16/6
NPP hires AIDS project coordinator 16/14
Alabama case challenges AIDS policies 17/8
NPP releases three AIDS publications 17126
Abrief history of AIDS in prison
19113
Interview with Billy S. Jones, WhitmanWalker Clinic
20/14
Spanish AIDS booklet available
20/15
No uniformity in AIDS policies
21/14
Prisoners form AIDS peer education groups
21/14
More states mainstreaming HIV prisoners
22/18
Mandatory AIDS testing on the rise 22/18
Not all states providing AIDS drugs 22/18
Review of N. Freudenberg's AIDS education
book
Vol. 512/17
AIDS education program for Rikers
Island women
Vol. 5/3/18
Natl. Commission on AIDS holds hearing
Vol. 514126
NPP's AIDS Project advocates AIDS programs, education
Vol.611/3
Criminalizing the AIDS epidemic Vol.6/1/18

FALL 1992

11

States mainstreaming HIV+ prisoners
Vol.6/2/18
Ex-prisoner with AIDS speaks at NPP forum
Vol.6/3/18
Women prisoners develop AIDS
education program
Vol.6/4I18
TB a threat to prisoners, especially if HIV +
Vol.7/1/1
NPP AIDS Coordinator looks back Vol.7/1I21
NY alliance advocates for inmates with AIDS
Vol.7/2/18
Progress slow on medical parole
Vol. 7/3/18
AIYETORO, ADJOA A.
Profile of NPP lawyer, political activist
Vol. 5/413
ALABAMA
An expert's view of the Alabama case 8/12
Former NPP lawyer remembers Alabama
case
13/8
Reflections of an expert witness
13/13
Alabama case challenges AIDS policies 17/8
Alabama prison-monitoring committee
folds
20/1
Alabama changes policy on juveniles in
adult jails
Vol. 5/2/6
ALEXANDER, ELIZABEm
Interview with NPP attorney Alexander
Vol. 6/41 14
ALTERNATIVES TO INCARCERATION
Surveys show support for alternatives
9/1
Examining community service alternatives
10/13
Prison not always answer for female
offenders
10/11
AIternatives only option for D.C.
11/13
Few alternative programs exist for women
12/9
Imprisoned mothers face extra hardships
1411
Involving victims and offenders in
sentencing
1419
Alternatives part of agreement in Maryland
jail case
15/13
Sentencing planning, guidelines encourage
alternatives ...
18/1
Maryland jail case encourages alternatives
18/11
Alternatives aid Washington prison population decrease
19/1
Citizen participation in corrections 20/12
Electronic monitoring in use and history
21/5
ACLU demands spur alternatives in Hawaii
juvenile system
Vol. 5/2/5
Palmigiano judge urges alternatives
Vol.6/2/5
Alternative programs that work Vol.6/3/2
ABA report urges sentencing, corrections
reform
Vol.7/3/1
AMERICAN BAR ASSOCIATION
ABA report urges sentencing, corrections
reform
Vol.7/3/1
12

FAll 1992

AMERICAN CIVIL LIBERTIES UNION
ACLU opens death penalty centers in South

Baird, Katy
"Death Penalty Law Still Tolerates
Inequities"
1418
7/7
Barbaret, Rosemary
ACLU of Montana inspects Montana jails
"Political Fallout Means Fewer Furloughs"
10/9
ACLU'sRights ofPrisoners revised 15/14.
19/10
Death penalty lawyers accept ACLU award ,~: Barry, Ellen
Vol.6/4Il u~;
"Imprisoned Mothers Face Extra
Hardships"
1411
AMERICAN CORRECTIONAL
Bell, James
ASSOCIATION
"
"Kids in Adult Jails: Still a Problem in
ACA asked to ease housing standards
i\
Vol.6/3/il4
1990"
Vol. 5/2/6
NPP denounces ACA stance on brutality
Bernat, Betsy \
"How Some Fo\~s Do It In the Lone Star
question
Vol.7/1/5
State"
..t'
1/8
ACA votes to ease housing standards
"Chock Full of Nuts"
2/10
Vol.7/1/5
ARIAS V. WAINWRIGHT
"How the West Was Won, Part II"
5/5
NPP case challenges conditions in Florida
"Hold Your Nose! NPP Examines the Diet
Loaf"
8/10
jails
3/1
"Fourth Circuit Upholds Lower Court Order
ARIZONA
Parties move toward settlement in Black
in South Carolina"
11/13
"Another Day, Another Dead Roach In the
1/3
Revived settlement halts trial in Black 5/4
Mail"
13/35
"NPP Lawyer Ed Koren: Attica Started It All"
Alighter view of the Arizona case
5/5
16/12
ATTICA
"Dramatic Rise in Numbers of Elderly
Remembering the Attica uprising
13/5
Prisoners Means Special Care, Increased
NPP lawyer's work rooted in Attica 16/12
Costs"
20/9
Twenty years after Attica
Vol.6/4I17
"Early Prison Reforms Give Way to Present- .
AUSTIN V. LEHMAN
Day Crowding"
Vol. 5/3/16
Community coalition boosts PA litigation
"NPP Lawyer Discusses Wilson, Legal
Vol. 7/2/12
Trends"
Vol. 6/4114
AumoRS
"NPP Denounces ACA's Failure to Back Use
Adams, Stuart
of Force Standards"
Vol.7/1/5
"Louisiana Death Row Gains Greater Legal
"ABA Report Urges Reform in Sentencing,
Access"
Vol.6/2/15
Corrections"
Vol.7/3/1
Aiyetoro, Adjoa A.
Bonnyman, Gordon
"Vestiges of Slavery: Racism in Sentencing"
"Recent Federal Court Orders Spur
2/12
Tennessee Toward Prison Reform"
8/1
"Bureau Continues Totalitarian Measures at
Boston, John
Marion"
5/8
"Case Law Report"
"NPP Goes Beyond Litigation in
Pennsylvania"
Vol.7/2/12
21/9,22/9, Vol. 5/2/9, 5/3/10, 5/419,6/1/6,
6/2/6,6/3/6,6/416, 7/1/6, 7/2/6, 7/3/6
Alexander, Elizabeth
Brantley, Robert 1. (with Olinda Moyd)
"Justice Department Retreats: The Michigan
'''Tomorrow's Neighbors' Celebrate NAACP
Case"
1/1
Inmate Chapter"
18/13
"Judge Halts Meddling with Access to
Breed, Allen
Clients"
3/2
"Special Masters: Debate Needed on Role
"Violations in South Dakota Prison Lead to
of Masters in Litigation"
13/15
Lawsuit"
416
Bright, Stephen B.
"u.s. v. Michigan: An Update from the
"Judicial System Inconsistent in Doling Out
Battlefield"
12/8
Death"
6/12
"Prisoners' Lawyers Face Critical Issues"
"ACLUAwards Medal of Liberty to Bryan
13/22
Stevenson, Stephen Bright"
Vol.6/4Il
"Can Contract Care Cure Prison Health
Bronstein, Alvin J.
Ailments?"
22/5
"Opening Remarks"
1/2
"Proving 'Deliberate Indifference' in the
"Court Says Hands Off on Contact Visits and
Wake of Wilson v. Seiter"
Vol. 6/413
Andersen, Erik
Cell Privacy"
1/9
"The Legal Implications of Privatization" 2/1
"Denmark's Radical Approach to Super"Rhode Island Prisons Changing After
Max Yields Success"
6/8
Seven-Year Litigation Effort"
3/1
Bagdikian, Ben H.
"Super-Max Prisons Have Potential for
"Media Treat Crimes As Isolated, Random
Unnecessary Pain and Suffering"
411
Events"
13/31

THE NATIONAL PRISON PROJECT JOURNAL

"Neglect of Prisons Reaps High Costs for
Society"
7/12
"Sweeping New Order in Rhode Island Case
Promises Further Relief'
8/5
"15 Years of Prison Litigation: What Has It
Accomplished?"
11/6
"Supreme Court Agrees to Hear Brutality
Case"
VoL 6/3/1
"U.S. Policies Create Prison Human
Rights Violations"
Vol.6/3/4
"High Court Hands Down Prisoners'
Rights Victory in Beating Case" VoL 7/2/1
Burns, Haywood
"Remembering Attica"
13/5
Burr, Richard
"Book Review: Death Work: A Study ofthe
Modern Execution Process by Robert
Johnson"
VoL 5/3/16
Cade, Julia
"No More Quick Options for District of
Columbia"
11/13
"Lack of Resources No Defense for
Constitutional Violations"
11/14
"ABA Funds Death Penalty Project"
12/8
"Prisoners With AIDS in New York Live Half
as Long as Those on Outside" (with Jan
ElVin)
15/7
"Machine Administers Fatal Injection"
17/4
"Court Denounces Practices at Lexington
Control Unit"
17/19
"NPP Status Report: The Courts and the
Prisons" (1990)
22/7
Cheney, Catherine
"Crowded Prisons and Jails Unable to Meet
Needs of Mentally Ill" (with Mark Lopez)
VoL7/3/15
Clements, Carl B.
"How to Evaluate Offender Needs
Assessment"
18/1
Cohen, Robert 1., M.D.
"Medical Expert Views Potential for Abuse
in AIDS Screening"
615
Conrad,John
"An Expert Reflects on the Changing Face
of Prison Litigation"
8/12
Courlander, Michael (with David E. Tracey)
"Third Party Supervision Bolsters
Probation Programs"
VoL 6/1/16
Curtis, Dennis
"The Reform of Federal Sentencing and
Parole Laws"
13/21
Dorsey, 1.C.
"The Death Penalty is Still Wrong"
3/8
Dubler, Nancy
"Medical Care: Past and Future"
13/29
Elvin, Jan
"Private Firms Cash in on Crime"
1/6
"Private Prison Plans Dropped by
Buckingham"
6/11
"Florida Death Penalty Appeals Office
Opens"
7/1
"Oklahoma Prisoner Earns Place in History:
The Story of Battle v. Anderson"
1Oil
THE NATIONAL PRISON PROJECT JOURNAL

"Where Are The Lawyers?"
12/1
"NPP Celebrates 15 Years with Memories of
Past, Hope for Future"
14111
"Prisoners With AIDS in New York Live
Half as Long as Those on Outside"
(with Julia Cade)
15/7
"Washington State's Prisoner Numbers ;:j'
Stabilize as National Rate Soars"
19"/1
"Doubts Raised in Virginia Death Row,.'
Prisoner Case"
··1211
"Adjoa Aiyetoro: Political Activist'"
v<ii5/413
"U.S. Now Leads World in Rate of 0<
Incarceration"
VoL6/1/1
"Judge Orders Changes at Virginia
Penitentiary"
VoL 6/1/14
"Prisoners Need Protection From
Environmental Hazards"
Vol.614112
"TB Comes Back, Poses Special Threat to
Jails, Prisons"
Vol.7/1/1
"Citizens Protest Taking of Farmland for
Federal Prison Site"
VoL 7/313
"Film Review: 'Cancelled Lives'" VoL 7/3/17
Fathi, David (with Mark Lopez)
"The Lost Meaning of Whitley v. Albers"
VoL 5/3/3
"U.S. Punishes Political Dissidents"
Vol. 5/416
Interview with Alvin J, Bronstein VoL 6/21 1
"Modification of Consent Decrees Goes to
High Court"
VoL6/3/17
Flittie, Roger G.
"The Class Representative: APersonal
Experience"
13/19
Freeman, Alexa (with Judy Greenspan)
"AIDS Project Presses for Programs Behind
Walls"
VoL6/1/3
Geballe, Shelley (with Martha Stone)
"The New Focus on Medical Care Issues in
Women's Prison Cases"
15/1
Giarratano, Joseph
"Prison Reform Viewed From the Inside"
13/18
"Book Review: Last Rights: Thirteen Fatal
Encounters with the State'sJustice, by
Joseph B. Ingle"
VoL 5/4125
Goering, Susan (with Claudia Wright)
"Maryland: Litigation Can Stop Unnecessary
Jail Building"
18/11
Goldberg, Judy (with Nadine Marsh)
"Ex-Offenders Find Doors Closed On Voting
Rights"
313
Goldstein, David B.
"Supreme Court Summary"
1416
Gostin, Larry
"AIDS in Prison: AIDS Policies Raise Civil
Liberties Concerns"
10/10
Greenspan, Judy
"NPP Gathers Statistics on AIDS in Prison"
16/5
"Minnesota's Newest Prison Provides
Humane Environment"
17116

AIDS Update
19/13,20/14,21/14,22/18, Vol. 512/17
5/3/18, 5/4126, 6/1/18, 6/2/18, 613/18,
614118, 7/1/21
"AIDS Project Presses for Programs Behind
Walls" (with Alexa Freeman)
Vol.6/1/3
Harrell, William C.
"ASCA Proposes Watering Down of SingleCelling Standards"
Vol.6/3/14
Harris, M. Kay
"Exploring the Connections Between
Feminism and Justice"
13/33
Immarigeo"\ Russ
"Communinf Service Sentences Pose
Problems;Show Potential"
10/13
"Women'in Prison: Is Locking Them Up the
Only Answer?"
11/1
"Few Diversion Programs Offered Female
Offenders"
12/9
"Victim and Offender Participation
Important to Criminal Sentencing Process"
1419
"Critics Urge Caution in Interpreting
Justice Department Study"
15/10
"Despite New Laws, Juveniles Still Locked
in Adult Jails"
17/21
"Sentencing: Guidelines and Planning
Services Foster Wider Use of Alternatives"
18/1
"Four States Study Policies Affecting
Women Offenders"
19/4
"Electronic Monitoring: Humane
Alternative or Just Another 'Gizmo'?" 2115
"Instead of Death: Alternatives to Capital
Punishment"
Vol. 5/3/6
"Book Review: Last One Over the Wall:
The Massachusetts Experiment in Closing
Reform Schools, by Jerome Miller"
Vol. 7/2/16
Janger,Ted
"Expert Negotiation Brings New Approach
to Prison Litigation in Hawaii"
616
Jurado, Rebecca
"California Project Stands Up For Women
in Prison"
7/10
Keating, J. Michael
"How to Work With Special Masters"
Vol. 5/411
Keller, O.J.
"Cuban Detainees Face Further Frustration,
Unfair Treatment"
7/24
Kluger, Mark
"South Carolina Settlement Limits
Population, Enforces Standards"
5/1
Knowles, Ralph
"Strategies For Future Prison Litigation" 2/1
"Monitoring Committee on Prisons in
Alabama Folds; Court Gives Up
Jurisdiction"
20/1
Koren, Edward I.
"Dramatic Change in Oklahoma Juvenile
Justice System"
2/3
"Status Report: State Prisons and the
Courts-january 1, 1992"
VoL 7/1/13
FALL 1992

13

Lancaster, Jennie
"Corrections Staff Are 'Silent Actors' in
Executions"
17/6
Lasker, Morris E.
"The Tombs, On Reflection: Prison
Litigation: Many Years Toward Compliance"
11/9

Levine, Jody
"Private Prison Planned on Toxic Waste
Site"
5/10
Lindsay, Margot C.
"Citizen Involvement Can Play Key Role in
Corrections"
20/12
Lopez, MarkJ.
"Decisions in Safley and O'Lone Undo
Years ofprogress"
15/8
"New Mexico Seeks to Elude Obligations of
Consent Decree"
16/1
"Forced Drugging of Mentally III Prisoners"
19/7
"Court Fines Rhode Island Officials Over
Non-Compliance"
21/1
"The Lost Meaning of Whitley v. Albers"
(with David Fathi)
Vol. 5/3/3
"Reactivated New Orleans Jail Case
Uncovers Same Old Problems, Divisions"
Vol. 7/2/4
"Crowded Prisons and Jails Unable to Meet
Needs of Mentally Ill" (with Catherine
Cheney)
Vol.7/3/15
Macallair, Dan
"ACLU's Demands Trigger Change in
Hawaii's Juvenile System"
Vol. 5/2/5
Marnell, Gunnar
"Swedes See U.S. Death Penalty as
Premeditated Killing"
419
Marsh, Nadine (with Judy Goldberg)
"Ex-Offenders Find Doors Closed on Voting
Rights"
313
Martino, Maria
"Georgia Study Reveals Racial Bias in
Sentencing"
20/8
"Seven Alternatives Punishment Programs
That Work"
Vol. 6/3/2
McClymont, Mary E.
"Prison Litigation: Making Reform a
Reality, Part I"
1/8
"Prison LitigatiO'n..., Part II"
2/4
"Hard-Fought Settlement Reached in Hawaii
Case"
5/3
"Execution for Juvenile Crime Raises
Questions ofInternational Law"
7/13
''Jerry M.: Settlement Reached in Juvenile
Case"
10/12
Miles, Steven H.
"Health Professionals and a Preventable
Death at Butner"
16/9
Millemann, Michael
"VA Prisoners Find Advocates in Early
Prison Reformers"
13/3
Morton, Chuck
"Resolved: High Schoolers Should Debate
Prison Overcrowding"
Vol. 5/2/15

14

FAll1992

Moyd, Olinda (with Robert 1. Brantley)
'''Tomorrow's Neighbors' Celebrate NAACP
Inmate Chapter"
18/13
Mushlin, Michael B.
"Rhodes v. Chapman Analyzed for Effect
on Prison Overcrowding"
1414
Myers, Matthew 1.
"The Alabama Case: 12 Years After James v.
Wallace"
13/8.:>
Nagel, William G.
. ..
"Reflections of an Expert Witness" 13/(3
Nathan, Vincent
. t\
-':,'t
"Lawsuits Fundamental to Prison Reform"
13/16
Ney, Steven
"Statewide Attack on Florida Jails Brings
Improvement"
3/1
"Judge Bans Further Intake of Prisoners at
D.C. Jail"
5/6
"D.C. Pushes Panic Button in Jail
Population Crisis"
8/8
Novick, Steven A.
"Bitter Legal Combat Leads Oklahoma Out
of Dark Ages in Care ofJuveniles"
Vol. 5/2/1
Ogletree, Charles J.
"Book Review: The Myth ofa Racist
CriminalJustice System, by William
Wilbanks"
11/10
Ortega, Nancy
"AIDS Policy Tested in Alabama Prison
Case"
17/8
Pettine, Raymond J.
"Rhode Island Judge Reflects on
Palmigiano"
Vol. 6/2/5
Presser, Stefan
"In Pennsylvania, 200 Years ofpractice
Doesn't Make Perfect"
Vol. 5/3/1
Resnik, Judith
"The Limits of Parity in Prison"
13/26
Restrepo, 1. Felipe
"Weighing Privilege to Smoke Against
Rights of Non-Smokers"
12/12
Rosenthal, Liz
"Tax Reform Package Caught in Catch-22"
1/12
Schwartz, Herman
"Prisoners' Rights Lawyers in VA and NY
Merge to Form NPP"
13/5
Start, Armond
"Nor WillI Prescribe a Deadly Drug..." 17/3
Stone, Martha (with Shelley Geballe)
"The New Focus on Medical Care Issues in
Women's Prison Cases"
15/1
Stevenson, Bryan
"ACLU Awards Medal of Liberty to Bryan
Stevenson, Stephen Bright"
Vol. 6141 1
Sturm, Susan
"Special Masters Aid in Compliance
Efforts"
6/9
Taifa-Caldwell, Nkechi
"Muslims in Prison Seek Religious
Recognition"
8/3

Thorburn, Kim Marie
"Doctors' Involvement in Death Penalty
Creates Ethical Dilemma"
17/2
Tracey, David E. (with Michael Courlander)
"Third Party Supervision Bolsters Probation
Programs"
Vol.6/1/16
Tushnet, Mark
"Supreme Court Briefs"
8/7
Tushnet, Rebecca
"Resolved: High Schoolers Should Debate
Prison Overcrowding"
Vol. 5/2/15
Vaid, Urvashi
"Depo-Provera: ~lessing or Curse?"
411
"NPP Gathers the Facts on AIDS in Prison"
.),
6/1
"Balanced Response Needed to AIDS in
Prison"
7/1
Verstraete, Greye
"Jail Inspections Trigger Improvements"
10/9

Walker, Jackie
AIDS Update
Vol. 712/18, 7/3/18
Walker, Sam
"The Beginning: Sixties Civil Rights Gave
Momentum to Prisoners' Rights"
13/2
Wood, Frank
"Oak Park Heights Sets High Super-Max
Standards"
413
Wright, Claudia
"Parties Move Toward Settlement in
Arizona"
1/3
"Revived Settlement Halts Trial In Black"
5/4
"Expert Witnesses: Expanding Their Role in
Prison Cases"
13/12
"Maryland: Litigation Can Stop Unnecessary
Jail Building" (with Susan Goering)
18/11

-BBARALDINI V. THORNBURGH (formerly
Baraldini v. Meese)
Court denounces Lexington Control Unit
17/19
Political prisoners do exist in U.S.
Vol. 51416
BArES V. LYNN
Case increases legal access on LA death
row
Vol.6/2/15
BATTLE V. ANDERSON
Looking back at Battle v. Anderson 1011
BEHAVIOR MODIFICATION
PROGRAMS
Program challenged in Arizona prison
1/3
AZ settlement addresses behavior
modification
5/4
BELL V. WOLFISH
Prisoners' lawyers face critical issues
13/22
BLACK V. RICKETTS
Ad. seg. conditions challenged in AZ
lawsuit
1/3

THE NATIONAL PRISON PROJEG JOURNAL

Revived settlement halts Arizona trial
5/4
5/5

Alighter look at Arizona case
BLOCK V. RUTHERFORD
Supreme Court case re: search, visitation
rights of detainees
1/9
BODY CAVITY SEARCHES
Searches challenged at AZ State Prison
113
AZ settlement limits body cavity searches
5/4
BRONSTEIN, ALVIN J.
Interview with NPP's Executive Director
Vol.6/2/1
BROWN V. MURRAY
Lawyer access problems at Mecklenburg
3/2
Inmate's view of prison reform, litigation
13/18
BRUTALITY
Circuit courts decide Huguet, Miller
Vol.5/4110CL
Supreme Court to hear Hudson
Vol.6/3/1
NPP denounces ACA stance on brutality
question
Vol.7/115
Supreme Court decides Hudson in
prisoner's favor
Vol.7/2/1
BUREAU OF PRISONS, FEDERAL
Totalitarian conditions at Marion
5/8
Cubans detained in Atlanta Penitentiary
9/1
Court denounces Lexington Control Unit
17/19
Cuban detainees suffering unfair treatment
17/24
Political prisoners do exist in U.S.
Vol. 5/416
Citizens protest proposed prison Vol.7/3/3
BUSH V. VITERNA
Unusual practices found in Texas jails
118

-cCALIFORNIA
ACLU starts Women Prisoners' Rights
Project
7/10
CALIFORNIA'lNSTITUTION FOR
WOMEN
Conditions challenged by ACLU
7/10
Imprisoned mothers face extra hardships
1411
Litigation targets medical care in women's
prisons
15/1
CAPITAL COLLATERAL
REPRESENTATIVE (CCR)
Florida opens capital appeals office
7/1
CCR handles death penalty appeals
12/6
CASE LAW REPORT
Areview of recent federal court decisions
affecting corrections and prisoners' rights
2119,22/9, Vol. 5/2/9, 513/10, 5/419,
61116,6/2/6,6/3/6,61416, 7/116,
7/2/6, 7/3/6
THE NATIONAL PRISON PROJECT JOURNAL

CELL SEARCHES
Searches issue in Block v. Rutherford 119
CLASSIFICATION
Assessing offender needs
18/1
COMMUNITY ACTIVISM
Citizen participation in corrections 20/12
Coalition boosts Pennsylvania litigation
;:1'
Vol. 7/2/12)~;
Citizens protest proposed prison,:,.
Vol.7/3/3
COMPLIANCE"
Making prison reform a reality (2 partsX
118;2/1
Special masters aid in compliance
6/9
Judge discusses "Tombs" case
1119
Debating the role of special masters 13/15
New Mexico falls short on compliance
16/1
Alabama prison-monitoring committee
folds
20/1
Court fines RI on noncompliance
2111
Compliance a struggle in OK juvenile case
Vol. 5/2/1
CONGDON V. MURRAY
Judge orders changes at VA penitentiary
Vol.6/1/14
CONSENT DECREES/
SETTLEMENT AGREEMENTS
NPP challenges decree in U.S. v. Michigan
111
Settlement in AZ
1/3, 5/4
NPP's Status Report on the courts and the
prisons 3/10, 13/24, 18/7,22/7, Vol.7/1/13
SC decree limits population
5/1
Consent decree entered in Hawaii
5/3
Experts negotiate Hawaii settlement
616
SC ordered to comply with decree
9/4
DC juvenile case settles
10/12
Appeals court upholds cap in SC
11/13
New Mexico fails to comply with decree
16/1
Supreme Court to review modification of
consent decrees
Vol.6/3/17
An analysis of Rufo
Vol. 7/2/7CL
CONTACT VISITS
Visits for detainees issue in Block v.
Rutherford
1/9
CONTEMPT
Making prison reform a reality
2/4
CRIME
Making sense of crime statistics
9/6
Media promotes vicious criminal justice
cycle
13/31
Interpreting BJS public opinion study
15/10
CUBAN DETAINEES
Cubans detained in Atlanta penitentiary 911
Cuban detainees suffering unfair treatment
17/24

-DDANIELS V. WILLIAMS
Supreme Court decides negligence case

DEATH PENALTY

Death penalty information packet
3/6
Death penalty: a personal view
3/8
Swedes confused by U.S. death penalty 419
Courts inconsistent in issuing death penalty
6/12
Florida opens capital appeals office
7/1
Model offices for centralized capital
appeals
7/6
ACLU opens death penalty centers in South
717

Jury override can backfire into death
sentence
'Ii
7/8
Execution fori\lvenile crime challenged
~1;"
7/13
Shortage of 'death penalty lawyers
12/1
Trial-level errors in capital cases
12/4
Florida's CCR handles capital appeals 12/6
ABA funds death penalty project
12/8
Death penalty law tolerates inequities 1418
Executions pose ethical dilemma for
doctors
17/2
Doctors' role in executions
17/3
New machine administers lethal injection
17/4
Corrections staff "silent actors" in
execution
17/6
Is Virginia's Joe Giarratano innocent? 22/1
Alternatives to the death penalty Vol. 5/3/6
Richard Burr reviews Robert Johnson's
.
Death Work
Vol. 5/3/16
Joseph Giarratano reviews Ingle's Last
Rights
Vol. 5/4125
Lawsuit increases legal access on LA death
row
Vol.6/2/15
Death penalty lawyers accept ACLU award
Vol.61411
DELAWARE
Delaware studying women offender policies
19/4
DELIBERATE INDIFFERENCE
An analysis of Wilson v. Seiter Vol.6/3/6CL
Proving deliberate indifference after
Wilson
Vol.61413
Alook at post-Wilson decisions Vol.61416CL
DENMARK
Danish super-max far cry from U.S.
counterparts
6/8
DEPO-PROVERA
Depo-provera treatment raises questions
411
DIET
Muslim prisoners seek right to religious
diet
8/3

DIET LOAF
"Diet loaf' challenged in Arizona case 1/3
Arizona settlement outlaws "diet loaf' 5/4
Alighter look at the diet loaf
8/10
DISTRICT OF COLUMBIA
Judge sets population cap at D.C. Jail 5/6
D.C. panics over jail population crisis 8/8
Settlement reached in D.C. juvenile case
10/12

8/7
FAll1992

15

Alternatives only option for D.C.
11/13
DOUBLE-CELLING
Double-ceiling ban upheld
Vol. 5/4I9CL
ACA asked to ease housing standards
Vol.6/3/14
Supreme Court to review modification of
consent decrees
Vol.6/3/17
DRUGS
Forcing psychotropic drugs on mentally ill
prisoners
19/7
DURAN V. CARRUTHERS
Budget cuts don't excuse violations, says
court
11/14
New Mexico falls short on compliance
16/1

-EEIGHTII AMENDMENT (Also see
"Litigation," "Overcrowding," and "Brutality")
Courts stretch meaning of Whitley v.Albers
Vol. 5/3/3
An analysis of Wilson decision Vol.6/3/6CL
Proving deliberate indifference after
Wilson
Vol. 6/413
ELDERLY PRISONERS
More elderly prisoners raises problems
20/9
ELECTRONIC MONITORING
Electronic monitoring in use and history
21/5
ELISA TEST
Use of ELISA test in prisons
6/1
Medical expert on problems in AIDS
screening
6/5
AIDS screening policies and ELISA test
7/1
ENVIRONMENT
Environmental hazards threaten prisoners
Vol.6/4I12
EXPERTS
Expert panel negotiates settlement in
Hawaii
6/6
An expert's view of the Alabama case
8/12
The expanding role of experts in prison
cases
13/12
Nagel: reflections of an expert witness
..
13/13

-FFEDERAL BUREAU OF PRISONS
See BUREAU OF PRISONS, FEDERAL
FEMINISM
The connections between feminism and
justice
13/33
FIRST AMENDMENT
Prisoners' lawyers face critical issues
13/22
Supreme Court decisions affect First
Amendment rights
1416
Supreme Court decisions in O'Lone and
Saflry
15~
FUlTIE V. HIIJARD
NPP lawsuit filed in South Dakota
416
16

FAll1992

Inmate's experience as a class representative
13/19
FLORIDA
NPP files suit against Florida jails
3/1
Florida opens capital appeals office
7/1
Florida's CCR handles capital appeals 12/6
FURLOUGHS
Presidential campaign impacts furloughs
19/10"
...
,

~

-GGEORGIA
.~.~
Study shows racial bias in sentencing 20/8
GRUBBS V. BRADLEY
Court orders spur reforms in Tennessee
8/1
Special Master's role in Tennessee case
8/2
-HHAMILTON V. MORIAL
New Orleans jail case plagued by old
problems
Vol.7/2/4
HANDGUNS
Canadian gun control legislation studied
19/14
HARRIS V. THIGPEN
Alabama case challenges AIDS policies
17/8
HAWAII
Settlement reached in Spear v. Ariyoshi
5/3
Expert panel negotiates settlement in
Hawaii
6/6
ACLU demands bring change in Hawaii
juvenile system
Vol. 5/2/5
HENDRICKSON V. WELCH
Agreement reached in Maryland jail case
15/13
HUDSON V. MCMIUIAN
Supreme Court to hear brutality case
Vol.6/3/1
NPP denounces ACA's stance on brutality
question
Vol. 7/1/5
Supreme Court decides Hudson in prisoner'sfavor
Vol.7/2/1
An analysis of Hudson decision
Vol.7/2/6CL

-IILLINOIS
Lockdown at Marion investigated
5/8
Illinois studying women offender policies
19/4
INCARCERATION RATES
U.S. has world's highest incarceration rate
Vol.6/1/1

-JJAILS
National Jail Project of ACLU underway
Unusual practices in Texas jails

1/1
1/8

Detainee rights at issue in Block v.
Rutherford
Women in jails have special problems

1/9

2/9
Arias v. Wainwright challenges Florida
jaib
~
Judge sets population cap at DC Jail
5/6
National Jail Project releases Jail Status
Report
5/12
D.C. panics over jail population crisis 8/8
ACLU inspects Montana jails
10/9
NIC studies jail suicides
11/12
Agreement rea~ed in Maryland jail case
•
15/13
Removing ju~e1iiles from adult jails
17/21
MD jail litigation encourages alternatives
18/11
Jail suicide study released
18/14
Many juveniles still detained in adult jails
Vol. 5/2/6
Supreme Court to review modification of
consent decrees (Rufo)
Vol.6/3/17
New Orleans jail case plagued by old
problems
Vol.7/2/4
Jails failing mentally ill
Vol.7/3/15
JAIL COALITION (National Coalition for Jail
Reform)
Coalition reorganizes
412
Removing juveniles from adult jails 17/2 (
1990 Jail Suicide Update available
Vol.6/1/5
JERRY M. V. DISTRICT OF COLUMBIA
Settlement reached in DC juvenile case
10112
JUSTICE, U.S. DEPARTMENT OF
NPP challenges consent decree in Michigan
1/1
An update on the Michigan case
12/8
A.G. Barr holds "Corrections Summit"
Vol.7/2/3
JUVENILES
Terry D. v. Rader challenges OK juvenile
system
2/3
Execution for juvenile crime challenged
7/12
Settlement reached in DC juvenile case
10112
Removing juveniles from adult jails
17/21
Case brings reforms to OK juvenile system
Vol. 5/2/1
ACLU demands change Hawaii juvenile
system
Vol. 5/2/5
Many juveniles still detained in adult jails
Vol. 5/2/6
Juvenile rights: significant cases
Vol. 5/2/7
Forum held on minority youth incarceration rates
Vol. 5/2/17
High number of girls held as status
offenders
Vol. 5/2/18
NCCD reports on community sanctions for
juveniles
Vol. 5/2/18
THE NATIONAL PRISON PROJECT JOURNAL

Book review: Jerome Miller's Last One
Over the Wall
Vol. 7/2/16
Film review: "Cancelled Lives" Vol. 7/3/17

-KKOREN, EDWARD I.
Interview with NPP lawyer

16/12

-LLEGAL ACCESS (See ACCESS TO THE
COURTS)
LEGISLATION
Texas prison reform package
1/12
LETHAL INJECTION
Executions pose ethical dilemma for
doctors
17/2
Doctors' role in executions
17/3
New machine can administer lethal
injection
17/4
LEWISBURG PRISON PROJECT
LPP distributes booklets
12/15
LEXINGTON (KY) FEDERAL
CORRECTIONAL INSTITUTION
Court denounces Lexington Control Unit
17/19
Political prisoners do exist in U.S.
Vol. 5/416
LITIGATION (Also see "Overcrowding,"
"Consent Decrees," "Case Law Report,"
"Compliance")
NPP Highlights
2/9,3/12,4112,5/12,6/16, 7/16, 8/14,
9/16, 10/16, 11/16, 12/16, 14116, 15/16,
16/16, 17/28, 18/16, 19/16, 20/16, 21/16,
22/20, Vol. 5/2/20, 5/3/20, 5/4128, 6/1/20,
6/2/20,6/3/20,6/4120, 7/1/24, 7/2/20,
7/3/20
NPP's Status Report on the courts and the
prisons
3/10, 13/24, 18/7,22/7, Vol.7/1/13
Strategies for future prison litigation (2
parts)
1/8, 2/1
Expert reflects on prison litigation
8/12
Evaluating 15 years of prison litigation
11/6
Judge discusses "Tombs" litigation
11/9
Judicial commentary on prison cases
13/2
Civil rights movement a catalyst for
prisoners' rights
13/2
The expanding role of experts in prison
cases
13/12
Lawsuits fundamental to prison reform
13/16
An inmate's view of prison litigation
13/18
Inmate's experience as class representative
13/19
Litigation increasingly costly, complex
13/22
15 years of prison litigation: a timeline
13/26

..

THE NATIONAL PRISON PROJECT JOURNAL

Alabama prison-monitoring committee
folds
20/1
Courts stretch meaning of Whitley v. Albers
Vol. 5/3/3
Judge orders changes at VA penitentiary
Vol.6/1/1;i
An analysis of Wilson decision Vol.6/3/6C;
Proving deliberate indifference after
·A
Wilson
Vol.6/4t5
Alook at post-Wilson decisions.,.'
Vol.6/4/,6CL
P'/
New Orleans jail case plagued by old {'!
problems
Vol. 7/2/4
LOUISIANA
Lawsuit increases legal access on death
row
Vol.6/2/15
Supreme Court to hear brutality case
(Hudson)
Vol.6/3/1
Supreme Court decides brutality case in
prisoner's favor
Vol. 7/2/1
New Orleans jail case plagued by old
problems
Vol. 7/2/4

-MMAGID, JUDITH
In Memory
MARION, ILLINOIS, U.S.
PENITENTIARY
Examining super-max prisons
Lockdown at Marion investigated
MARRIAGE
Supreme Court strikes down marriage
restrictions

5/2

411
5/8

1416
MARYLAND
Agreement reached in Maryland jail case
15/13
Jail litigation encourages alternatives
18/11
NAACP established at Maryland Penitentiary
18/13
Maryland studying women offender policies
19/4

MASSACHUSETIS
Massachusetts studying women offender
policies
19/4
Book review: Jerome Miller's Last One
Over the Wall
Vol. 7/2/16
MAXIMUM SECURITY PRISONS
Examining super-max prisons
411
Minnesota facility sets high super-max
standards
413
Lockdown investigated at Marion
5/8
Danish super-max differs from U.S.
counterparts
6/8
Court denounces FCI-Lexington Control
Unit
17/19
U.S. prisons violate human rights
Vol.6/3/4
MEDIA
Media promotes vicious criminal justice
cycle
13/31

MEDICAL CARE
(See also: AIDS)
NCCHC publishes health care standards
11/12
Correctional health care: past and future
13/29
Imprisoned mothers face extra hardships
1411
Litigation targets medical care in women's
prisons
15/1
Health professionals and the mistreatment
of prisoners
16/9
Executions pd,!;e ethical dilemma for
doctors
'~ij
17/2
Doctors' rore in executions
17/3
Machine can administer lethal injection
17/4
Contract medical care generates concerns
22/5
Courts differ on medical care standard
Vol.5/4II0CL
TB poses threat to prisoners
Vol.7/1/1
Prison health care in crisis
Vol. 7/3/14
MENTAL HEALTH CARE
Forcing psychotropic drugs on mentally ill
prisoners
19/7
Prisons, jails failing mentally ill
Vol.7/3/15
MICHIGAN
NPP challenges consent decree in Michigan
1/1
An update on the Michigan case
12/8
MINNESOTA
Oak Park Heights sets high super-max
standard
413
Minnesota women's prison is humane
17/16
MONTANA
ACLU inspects Montana jails
10/9
MOUNDSVILLE, WEST VIRGINIA
PENITENTIARY
Conditions spark disturbance
7/13
MUSLIMS
Muslims prisoners seek religious
recognition
8/3
Supreme Court decides O'Lone v. Estate of
Shabazz
1416
Effects of Supreme Court decision in
O'Lone
15/8
Post-Shabazz decisions on religious rights
Vol. 5/419

-NNATION OF ISLAM
See: MUSLIMS
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
(NAACP)
Branch established at Maryland
Penitentiary
18/13
NATIONAL INSTITUTE OF CORRECTIONS
NIC to study jail suicides
11/12
NIC publishes "Research in Corrections"
series
16/14
FALL 1992

17

NATIONAL JAIL PROJECT OF TIlE ACLU
National Jail Project of the ACLU underway
1/1
Jail Project releases Jail Status Report
5/12

NATIONAL PRISON PROJECT OF TIlE
ACLU
NPP's Status Report on the courts and the
prisons
3/10, 13/24, 18/7,22/7
Vol 711/13
NPP staff changes
11/12, 12/13, 14114, 16/14
NPP establishes AIDS Project
11/16
NPP releases AIDS Bibliography
12/13
Civil rights movement a catalyst for
prisoners' rights
13/2
The founding of the NPP
13/5
Who are the NPP staff lawyers?
13/12
NPP law interns recall favorite moments
13/14
Catching up with former interns
13/30
NPP staff, past and present
13/34
Inside look at the Prison Project
13/35
NPP marks 15 years with conference,
celebration
14111
Interview with NPP's Edward Koren
16112
ACLU's The Rights ofPrisoners revised
15/14
Bronstein wins MacArthur Award
21/14
Interview with NPP's Alvin Bronstein
Vol.6/2/1
Interview with NPP's Elizabeth Alexander
Vol.6/4114
Results of NPPJOURNAL readers' survey
Vol.7/1/12
NATIVE AMERICANS
Post-Shabazz decisions on religious rights
Vol. 5/419
NELSON V. LEEKE
See: PLYLER V. LEEKE
NEW MEXICO
Attorney general comments on prison riot
7/13

Budget cuts don't excuse violations, says
court
...
11/14
New Mexico falls short on compliance
16/1
NEW YORK
Examining community alternatives 10/13
Judge discusses "Tombs" litigation
11/9
Remembering the Attica uprising
13/5
Astudy of NY inmates with AIDS
15/7
NPP lawyer's work rooted in New York,
Mtia
16112
Twenty years after Attica
Vol.6/4117
TB poses threat to prisons, jails Vol.7/1/1
NY alliance advocates for inmates with
AIDS
Vol.712/18
Progress slow on medical parole
Vol.7/3/18

18

FALL 1992

NORTII CAROLINA
Examining community service alternatives
10/13
Apreventable death at Butner
16/9
BOP response to death of Vinson Harris
16/11'1,
Corrections staff involvement in execution ,':;\.
17/6'-'
., .
'f

-0OAK PARK HEIGHTS
Super-max facility sets high standards
413
OHIO
An analysis of Wilson v. Seiter decision
Vol.6/3/6CL
Proving deliberate indifference after
Wilson
Vol.6/413
Citizens protest proposed prison
Vol.7/3/3
OKLAHOMA
Juvenile system challenged in Terry D. v.
Rader
2/3
Looking back at Battle v. Anderson 10/1
Case brings reforms to Oklahoma juvenile
system
Vol. 5/2/1
O'LONE V. ESTATE OF SHABAZZ
Effect of Supreme Court decisions in
O'Lone and Safley
15/8
Religious rights, post-Shabazz Vol.5/419CL
OVERCROWDING
NPP's Status Report on the courts and the
prisons
3/10, 13/24, 18/7,22/7, Vol.7/1/13
SC settlement limits population
5/1
Hawaii settlement sets populations caps
5/3
Judge sets population cap at DC Jail
5/6
Population reduction program in
8/1
Tennessee
Court imposes population caps in RI
8/5
D.C. panics over jail population
8/8
Court orders SC to comply with population
limits
9/4
The effects of 15 years of prison litigation
11/6
Judge discusses "Tombs" case
11/9
Appeals court upholds pop. cap in SC
11113
Lawsuits fundamental to prison reform
13/16
Prisoners' lawyers face critical issues
13/22
The effect of Rhodes v. Chapman on overcrowding
1414
Overcrowding addressed in MD jail case
agreement
15/13
New books on prison overcrowding
18/14
High school students debate prison overcrowding
Vol. 5/2/15
High school debater discusses overcrowding debate
Vol. 5/2/15

After 200 years, PA prisons still have
problems
Vol. 5/3/1
Appeals courts differ on overcrowding
decisions
Vol.5/419CL
Judge orders changes at VA penitentiary
Vol.6/1/14
US prisons violate human rights
Vol.6/3/4
ACA asked to ease housing standards
Vol.6/3/14
ACA votes to ease housing standards
Vol.7/1/5
ABA report ur~s sentencing, corrections
reform
".:;,,5
Vol.7/3/1
.1,

-pPALMIGIANO V. DiPRETE (formerly
Palmigiano v. Garrahy)
Improvements evident in RI prisons
3/1
Court order promises further relief
8/5
Court fines RI officials for noncompliance
21/1
Palmigiano judge urges use of alternatives
Vol.6/2/5
PAT SEARCHES
Muslims contest searches by female guards
8/3
PAROLE
Reforming federal parole laws
13/21
Supreme Court decides Board of
Pardons v. Allen
1416
PELTIER, LEONARD
Political prisoners do exist in U.S.
Vol. 5/416
PENITENTIARY
200th anniversary of penitentiary spurs
debate
Vol. 5/3/5
Today's penitentiary differs from original
Vol. 5/3/16
PENNSYLVANIA
Private prison planned on toxic waste site
5/10

Plans dropped for prison on toxic waste
~
6111
After 200 years, PA prisons still have
problems
Vol. 5/3/1
Today's penitentiary differs from original
Vol. 5/3/16
Community coalition boosts PA litigation
Vol.7/2/12
PLYLER V. LEEKE (formerly Nelson v.
Leeke)
SC settlement limits population
5/1
Court orders SC to comply with decree
9/4
Appeals court upholds pop. cap in SC case
11/13
POLITICAL PRISONERS
Court denounces FCI-Lexington Control
Unit
17/19

THE NATIONAL PRISON PROJECT JOURNAL

Political prisoners do exist in US
Vol. 51416
PRATI, GERONIMO
Political prisoners do exist in US
Vol. 51416
PRETRIAL DETAINEES
Searches, visits argued in Block
1/9
Judge urges use of alternatives for
detainees
Vol. 6/2/5
PRISON POPULATION
US has world's highest incarceration rate
Vol.6/1/1
PRISONER CORRESPONDENCE
Supreme Court decides Turner v. Safley
1416
Effect of Safley on inmate correspondence
15/8
PRISONER VISITATION AND SUPPORT
PVS provides prisoners link to outside
5/2
PRIVACY
Court says "hands off" in Block decision
1/9
PRIVATIZATION
Private firms venture into prison business
1/6
Legal implications of privatization
2/1
Private prison planned on toxic waste site

SIlO
Prison plans dropped at toxic waste site
6/11

Correctional health care: past and future
13/29
Contract medical care generates concerns
22/5
PROBATION
Third party supervision aids probation
Vol.6/1/16
PROCUNIER V. MARTINEZ
Supreme Court rejects Martinez standards
in Turner
1416
Martinez and the Turner decision
15/8
PSYCHOTROPIC DRUGS
Forcing psychotropic drugs on mentally ill
prisoners
19/7
PUGH V. LOCKE
...
Expert reflects on Alabama case
8/13
Former NPP lawyer remembers Alabama
case
13/8
Nagel: an expert witness reflects
13113
Alabama prison-monitoring committee
folds
20/1

-RRACE AND CRIMINAL JUSTICE SYSTEM
Racism in sentencing extensive problem
2/12
Battle revealed racial discrimination in
Oklahoma
lOll
Review of Wilbanks' book on racism,
criminal justice
11/10
Remembering the Attica uprising
13/5
Alabama case exposed racism
13/8
THE NATIONAL PRISON PROJECT JOURNAL

McClesky decision tolerates racial bias in
death penalty cases
1418
Study reveals racial bias in sentencing
20/8
Report finds racism in NY system
Vol. 51416
ABA report urges reforms
Vol.7/3~1
RELIGION
.;~
Muslim prisoners seek religious:~r·
recognition
..813
Supreme Court decides O'Lone v. Estrlie of
ShabazzAl416
Effects of O'Lone decision
15/8
Religious rights decisions, post-Sht:ibazz
Vol.51419CL
RHODE ISLAND
Litigation in Rhode Island brings change
3/1
Order promises further relief in RI prisons
8/5
Court fines officials over noncompliance
21/1
Palmigiano judge urges use of alternatives
Vol. 6/2/5
RHODES V. CHAPMAN
Rhodes presents litigators with critical
issues
13/22
Analyzing the effects of Rhodes
1414
RIOTS
Disturbance at W.Va. Pen.
7/13
Remembering the Attica uprising
13/5
NPP lawyer's work rooted in Attica 16/12
20 years after Attica
Vol.614117
RUFO V. INMATES OF SUFFOLK
COUNTYJAIL
Supreme Court to review modification of
consent decrees
Vol.6/3/17
An analysis of the Rufo decision
Vol.712/7CL

-5SENTENCING
Racism in sentencing extensive problem
2/12
Sentencing Project publishes sentencing
directory
12/13
Reforming federal sentencing and parole
laws
13/21
Involving victims and offenders in
sentencing
1419
Interpreting BJS public opinion study
15/10
Sentencing planning services, guidelines
encourage alternatives
18/1
Sentencing bibliography published 18/15
Washington's sentencing gUidelines
effective
19/1
Study reveals racial bias in sentencing
20/8
Alternatives to the death penalty Vol. 513/6
Judge resigns over sentencing guidelines
Vol. 51418

ABA report urges sentencing, corrections
reform
Vol. 7/3/1
SENTENCING PROJECT, THE
Project publishes sentencing directory
12/13
Project publishes analysis of NIJ study
15/14
Project publishes sentencing bibliography
18/15
Incarceration rate highest in US, says
report
Vol.6/1/1
SETTLEMENT AGREEMENTS
(See CONSENTlpECREES/SETTLEMENT
AGREEMENTS]
SEX OFFENd'ERS
Depo-provera treatment raises questions
411
SMOKING
Smoking in prison: a question of rights
12/12
SOUTH CAROLINA
SC settlement limits population
5/1
Execution for juvenile crime
challenged
7/13
Court orders SC to comply with decree

9/4
Appeals court upholds pop. cap in SC
11/13
SOUTH DAKOTA
Lawsuit challenges violations at
penitentiary
416
Inmate describes being a class
representative
13/19
SOUTHERN CENTER FOR HUMAN
RIGHTS
Death penalty lawyers accept ACLU award
Vol. 6141 1
SPEAR V. ARIYOSHI
Settlement reached in Hawaii case
5/3
Expert panel negotiates settlement in
Hawaii
616
SPECIAL MASTERS
Special masters aid in compliance efforts
619
Special master appointed in Tennessee
8/1
Special master's role in Tennessee case
8/2
Judge discusses special masters
11/9
Role of special masters ripe for debate
13/15
How to work effectively with special
masters
Vol. 51411
SUICIDE
NIC to study jail suicides
11/12
Jail suicide study, training curriculum
released
18/14
1990 Jail Suicide Update available
Vol.6/1/5
SUPREME COURT, U.S.
Court says 'hands off' in Block v.
Rutherford
1/9
Death penalty upheld for juvenile crime
7/13
FALL 1992

19

Recent prisoners' rights decisions
Recent prisoners' rights decisions

8/7

1416
Effect of O'Lone and Safley
15/8
Court to hear brutality case (Hudson v.
McMillian)
Vol.6/311
An analysis of Wilson
Vol.6/3/6CL
Court to review modification of consent
decrees (Rujo v. Inmates ojSuffolk Co.
jail)
Vol.6/3/17
Court decides Hudson
Vol.7/2/1
An analysis ofRujo
Vol.712/7CL
SWEDEN
Swedes confused by U.S. death penalty
419
Swedes enact animal treatment legislation
19/9

-TTENNESSEE
Court orders spur reforms
8/1
Special Master's role in Tennessee case
812
TERRY D. V. RADER
Lawsuit challenges Oklahoma juvenile
system
2/3
Lawsuit leads to reform in Oklahoma juvenile system
Vol. 51211
TEXAS
Unusual practices found in Texas jails 1/8
Legislature develops prison reform package
1/12
TILLERY V. OWENS
Third Circuit upholds ban on doubleceIling
Vol. 51419CL
TUBERCULOSIS
TB poses threat to prisoners
Vol. 7/1/1
TURNER V. SAFLEY
Effect of Supreme Court decisions in
O'Lone and Safley
15/8

-uU.S. V. MICHIGAN
NPP challenges Michigan consent decree
An update on the Michigan case

.URINALYSIS ..
Urinalysis not always reliable
USE OF FORCE (See BRUTALITY)

1/1
12/8
9/13

-yVICTIMS'RIGHTS
PACT publishes VORP Network News
12/15
Involving victims and offenders in
sentencing
1419
Victim-Offender mediation assn.
established
19/13
Victim services and alternatives to the death
penalty
Vol. 5/316
VIRGINIA
Lawyer access a problem at Mecklenburg
312

20

FAll 1992

Early prisoner advocacy efforts in Virginia
13/3
Is Joe Giarratano innocent?
22/1
Judge orders changes at VA penitentiary
Vol.6/1/14
VOTING RIGHTS
Ex-offenders find barriers to voting

-wWASHINGTON
Reforms, guidelines reduce prison
population
L~}I
Prison population may increase
22/18
WEST VIRGINIA
Conditions spark Moundsville disturbance
7/12
WHITLEY V. ALBERS
Supreme Court decides use of force case
8/7
Courts stretch meaning of Whitley v. Albers
Vol. 5/3/3
WILSON V. SEITER
An analysis of Wilson decision
Vol.6/3/6CL
Proving deliberate indifference after
Wilson
Vol.61413
Alook at post-Wilson decisions
Vol.61416CL
NPP attorney discusses Wilson
VoL 614114
WOMEN
Women in jail have special problems
2/9

ACLU opens Women Prisoners' Rights
Project
7/10
Prison not always answer for female
offenders
11/1
Few alternative programs exist for women
12/9
Pursuing equal treatment for women in
prison
13126
The connections between feminism and
justice
13/33
Imprisoned mothers face extra hardships
1411
Litigation targe~ medical care in women's
prisons
..;}
15/1
New MinnesQprwomen's prison is humane
17/16
Court denounces FCI-Lexington Control
Unit
17/19
States study policies affecting women
offenders
19/4
Elderly prison population includes women
20/9
High number of girls held as status
offenders
VoL512118
AIDS education program for women at
Rikers Island
Vol. 5/3/18
Alternative programs that work
Vol.6/312
NPP releases new bibliography on women .
in prison
VoL614111
Women prisoners develop AIDS education
program
Vol.614118

(cont'dfrom page 5)

on the court that it required heightened
scrutiny on our part."
In July of 1991, in a rare move, concerned Northern District of California federal judges held a meeting with Pelican
Bay warden Charles Marshall and two top
attorneys from the California attorney general's office. Subsequently, Judge Henderson appointed Wilson, Sonsini to represent
one prisoner at Pelican Bay. The firm has
since converted that one case into a class
action because of the extreme conditions
at the prison.
Plaintiffs allege that defendants' deliberate use of excessive force and isolation,
and failure to provide medical care, meaningful access to the courts, and due
process in segregation assignments subject
prisoners to needless suffering and violate
their rights under the First, Sixth, Eighth
and Fourteenth Amendments to the United
States Constitution.
Madrid v. Gomez (Case No. C-90-3094,
U.S. District Court for Northern California)
covers the entire Pelican Bay State Prison,
which includes not only the SHU and the
Violence Control Unit (VCU) witWn it, but
the entire "regular" maximum security
sections of the prison. For purposes of tWs
article, however, focus will be on the section of the prison known as the SHU.
Excessive Force

The lawsuit specifically alleges brutality
and excessive use of force by correctional
officers in the SHU. Violent incidents
between staff and inmates are commonplace: "Because of the improper training
and supervision given to correctional staff,
and the failure of the defendants to investigate and discipline correctional staff when
appropriate, an atmosphere of terror and
violence exists at Pelican Bay State
Prison."
In the lexicon of prison euphemisms,
"cell extraction" is surely among the most
bizarre. Thetell Extraction Team is
equipped with sWelds, helmets, a woodenbullet weapon called Big Bertha, baton
sticks and Taser guns. "Cell extraction"
takes place when a prisoner needs to be
moved for a cell change, a trip to court,
the infirmary, to a disciplinary hearing, the
Violence Control Unit, or whatever other
reason the prison officials deem important. Prisoners have been extracted for
refusing to return a food tray. Some
observers say that prisoners, desperate for
human contact, may even set the stage for
the extraction, out of the skull-numbing
boredom of endless 22-1/2 hour days
without a blip on the screen.
Adeaf prisoner was beaten by officers
THE NATIONAL PRISON PROJECT JOURNAL

because he could not hear orders given
Wm. He had earlier been denied batteries
for Ws hearing aid.
Isolation

In a direct attack on the underlying ideology of the institution, the class action suit l'
'c~

makes the claim that the extreme use of isolation violates the Eighth Amendment ban
on cruel and unusual punishment, calling it
inhumane, cruel and dehumanizing.
1\venty-two-and-a-half hours a day are
spent in the cells. The "free" hour and a
half is spent in an "exercise yard" wWch is
essentially a small bare concrete room
with Wgh ceilings. Handcuffed and in waist
chains, prisoners are put under double
escort when they go to the "yard," and
once there, they are continually monitored
by cameras while they exercise in solitude.
Officers communicate with prisoners
through disembodied speakers in the
walls. The ceiling is covered with heavy
mesh on one side and heavy plastic on the
other, and the resulting filtered light
allowed through the screen is the closest
the prisoners in the SHU ever get to feeling
the sunlight.
Every move is monitored by a closed-circuit camera. Activity is severely limited.
There are no training programs for prisoners, no correspondence courses, and no
vocational training.
Inside the SHU, four 500-foot long corridors are monitored by video cameras.
Every 100 feet there are "crash gates"
which can be closed during an emergency.
All staff carry pocket alarms, which, if activated, set off\red lights in the hallways.
Each set of four corridors is overseen
from a control room where all cameras
are monitored.
Each concrete cell contains a concrete
stool, concrete bed, concrete writing table,
and a toilet and sink made of heavy stainless steel. NotWng is allowed on the walls.
The cells of SHU prisoners are lined with
opaque materials, so that prisoners cannot
see out. Prisoners never walk freely, they
never emerge from their cells without
being handcuffed and in chains. They shuffle to the law library single file, chained to
each other at the ankles. Prisoners eat on
trays of food wWch are passed through a

slot in the cell door. Toothpaste is
removed from the tube. There is no
unread mail. No personal calls are permitted unless there is a verifiable emergency
such as a death in the family. Smoking is
not allowed.
According to the complaint, "Pelican
Bay disciplines VCU prisoners by denying
them basic necessities. Prison offiCials, for
example, put VCU prisoners on 'sheet
restriction,' by wWch prisoners receive no
bedding, or 'cup restriction,' bywWch
prisoners are1fenied cups to drink from.
Pelican BayQ;$cials may also deny VCU
prisoners e~tfug utensils; or leave prisoners handcuffed or hogtied (with hands tied
beWnd their backs), forcing them to lap
their food from their plates as best they
can. Pelican Bay officials also put VCU
prisoners on 'paper gown' status....Over
time the gown becomes shredded and may
not be replaced."
James Park, former assistant warden at
San Quentin, now a consultant on prison
policy to the state Legislature and retired
from the California Department of
Corrections after 31 years in corrections,
told the San]ose Mercury News, "The
amount of isolation and limited sensory .
input isn't a good thing. I'd keep it tough,
strict, not a lot of fun. But I'd provide an
expanded opportunity for inmates to work
off their problems. They need counseling
and rehabilitation work. I'd say that when
people are released from the SHU into the
community they're not prepared to
adjust."
Classification

One of Pelican Bay's stated purposes is
to eradicate, or at least control, the prison
gangs within the California system. Pelican
Bay officials frequently assign prisoners
indeterminate SHU sentences based upon
suspected prison gang affiliations. The
prisoner has no opportunity to challenge
the assignment, wWch may be made only
on the basis of a tattoo.
"Once assigned an indeterminate SHU
sentence," alleges the lawsuit, "prison officials routinely tell prisoners accused of
gang affiliation that the only way out of the
SHU is to 'snitch, parole or die.' By tWs
statement, prison officials demand that
prisoners provide information relating to
prison gang activities. If prisoners do not
'snitch,' prison officials promise that they
will only leave SHU if they parole or die."
Medical Care

The lawsuit alleges that medical technicians are inadequately trained to perform
their duties. These "gatekeepers" for prisoner access to the medical care system are
FALL 1992

21

called upon to make medical diagnoses
and are grossly unprepared to do so. One
prisoner repeatedly complained of stomach
pains, requested medical attention, and
eventually required emergency surgery. The
physician who performed the surgery discovered that the prisoner's appendix had
burst several days earlier and that he was
suffering from gangrene as a result. The
doctor who finally performed surgery in the
local hospital told the prisoner he was
"lucky to be alive."
Psychiatric care is inadequate as well.
"Instead of providing proper psychiatric
treatment and/or therapy to these prisoners, Pelican Bay officials routinely house
prisoners suffering from these grave conditions in the Violence Control Unit [VCU, a
40-50 bed subsection of the SHU] ....
Prisoners housed in the SHU and VCU frequently engage in behavior so extreme and
disturbing that in and of itself it should
give notice to guards and Pelican Bay medical staff that psychiatric treatment is
required," states the lawsuit.
Legal Access

"Pelican Bay officials are not permitted
to read prisoner legal mail. Nevertheless,
they do," alleges the federal court complaint. Officials also demand that prisoners

recount their conversations with attorneys
who visit them.
SHU and VCU prisoners must submit to a
strip search before going to and upon
returning from the library.
A Remote Location

Called "Skeleton Bay" by prisoners,
Pelican Bay is located in Del Norte County.,{<
near the Oregon border, in a spot distanr'

from where most of them call home. When
visitors do come, they speak through a
plexiglass wall by phone in a tiny windowless room. Because a large number of the
prisoners in the SHU are Hispanics from
the Los Angeles area (900 miles away) and
have so far to travel, visitors are a rare
sight at Pelican Bay.
Not only are the prisoners who are
housed in Pelican Bay's SHU living virtually in solitary confinement, the staff of

Good Staff-Prisoner Relations Key
to Success of Scotland's Supermax
BY PETER McKINLAY
met Ai Bronstein at the International
Conference on the Future of
Corrections in Ottawa, Canada, in
June 1991. During a conversation over
dinner one evening, I described the
Barlinnie Specill Unit (BSU) in Scotland.
Ai wrote to me later and asked if I would
write this article. I agreed, albeit with
some hesitation.
This article does not pretend to have the
weight of academic research of the BSU.
Others better able than I have done-and
are doing-this. Nor can I claim the
length and depth of experience of the Unit
that many other commentators have. But I
do have a unique insight into the Unit from
the vantage point of director of the
Scottish Prison Service (SPS) from January
1988 to October 1991 (when the Service
as a whole began a process of fundamental
change) and from a Civil Service career
background of total ignorance of the penal

I

22

FALL 1992

system in Scotland before taking up that
post.
It is a mistake to consider prison systems in a vacuum. Every nation gets the
prison service it deserves. Equally, it is
impossible to judge every nation's prison
system on exactly the same basis. Prisons
reflect differences which obtain among
countries. Third World prisons must differ
in this sense from those of modern, rich
industrial nations. Again, social and religious mores will inevitably lead to different criteria being applied to socially aberrant or criminal behavior. Different political, economic, and legal systems also have
different impacts on prison systems.
Finally-and most importantly-the "will
of a nation," for want of a better phrase,
has a profound impact. In a democracy,
the "will of the nation" is determined
through the ballot box and the politicians
who control the mechanisms which fill or
empty prisons. They decide what areas will
merit custodial punishment, they appoint
the judges, empower the police and prose-

the entire prison is isolated. They are
free from the kind of community scrutiny
that would exist in a less remote location, and are more able to reinforce the
belief that their behavior is appropriate.
Fortunately, the whole notion and philosophy behind Pelican Bay is now being
seriously challenged, as well as specific
practices.
State officials at the highest levelpolicy makers in California-conceived
of this throwback to the medieval dungeon. Californiay>fficials have implemented policies andJractices which are prohibited by all.i»ternational human rights
standards and treaties, 1 and then boast
about practices that our own Department
of State condemns in the prisons of other
countries.•

Jan Elvin is editor ofthe NPPJOURNAL.
I Eg., Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 16) at 197
(I984) (entered into force June 26,1987).

For more information, contact the
Pelican Bay Information Project, 2489
Mission St. #28, San Francisco, G4
94110,415/821-6545.

cuting authorities, and establish the
ground rules for the legal process and the
running of prisons. All of this they do in
the name of the people and they will only
do it differently when the "will of the
nation" indicates that if they do not
change, they will lose power. Prisons in
Scandinavian countries reflect what the
people of these countries demand of the
system for dealing with people sentenced
to prison terms. s6 do those in the USA
and the United Kingdom. Comparison of
the systems in these countries speak for
themselves. 1
Again, prison systems do not operate in
a vacuum. They-and the Governors [wardens], staff and prisoners-remain part of
society. In the case of prisoners it is only
too easy to see them as having been exiled
from society. They are not. The system
itself is an integral part of the social and
criminal justice system of a nation.
The Birth of the BSU

Prison systems, therefore, have to be
seen in a wider context. So the BSU must
be seen in the wider context of the SPS,
itself a part of the Scottish justice system.
There were special units in the SPS
before the BSU. In 1951 aform of
THE NATIONAL PRISON PROJECT JOURNAL

Segregation Unit was established in
Peterhead Prison. This unit was shortlived, being abandoned in 1957. But it
nevertheless established the notion that for
violent and disruptive prisoners a period
of segregation in small groups in deSignated units was a good idea.
"The Inverness Cages"
In 1966 a new Segregation Unit was
opened in Inverness prison-to serve the
prison service as a whole-not just
Peterhead. Over the years the regime
changed as did the physical layout. But it
was always intended to operate as a "limited" regime, broadly along the lines of a
mainstream prison, but with the prisoner
having restricted association and movement. The basic principle remained one of
allowing the prisoner to mend his ways
and demonstrate, in time, his fitness to be

returned to a normal prison. As with the
earlier Unit, an Advisory Board met every

Every nation gets the
prison system it
deserves.
two months to consider a prisoner's .'
behavior. The recommended maximufl1
stay was six months.
The Inverness Unit, while never closed
as such, was unoccupied between March
1973 and December 1978. The rules then
became much stricter and the layout of the
five cells-for a maximum of five prisoners-was very different.
The design of the cell is unique in
Scotland. The prisoner was in a cage that

"Community Meetings"
Invoke. Personal

R~sponsibility

The Barlinnie Unit was evaluated by David Cooke, a clinical
psychologist who conducted his research as a Cropwood
Fellow at the Institute of Criminology,the Universityof Cambridge.IForthecasestudy, he used a variety of sources,
including prison records, psychiatricand psychological
reports, criminal records, and independent observations.
The following summarizes his findings:
The majority ofthe, prisoners at Barlinnie are serving life
sentences.••Sixty-eight percent had received additional sentences while in,prison. The unit, thus,. was designed for those
who would engage in long-term disruptive and violent behavior.
Alarge proportion (76%) have psychopathictraits, although
individuals with severe functional, or organic disturbance are
screened out.Confinementin theSpecialUnit,CookeJol.lnd,
resulted in a significant and substantiald~crease in thenumbel'S,of physical assaults and.levels.of disruptive behavior. The
reasonfQI this maybe that the Unit places special emphasis on
"personal problem orientation," "practicaLorientation,"
"autonomy," "support,""expressiveness," and "involvement."
Other prisons ("the usual regime") rated higher on "staff control"and "order and organization."
Certain features of the "usual" prison environment may
actively promote violent behavior (such as concentration on
control, poor food, limited access to education, "closed" visits,
problems with mail, lack of work, monotony, etc.), but they may
also passively affect behavior by denying prisoners the normal
means of expressing or dealing with aggressive feelings.
plisoners in the Barlinnie Special Unit are responsible for
the day-to-day running of the community, for forming their
daily routine., They hold "community meetings" which are central to the Unit's success, the authorsays,for tworeasons:
First, the meetings provide a safety valve for aggressive feelings,

THE NATIONAL PRISON PROJECT JOURNAL

is part of a larger cage, allOWing staff to
enter the cell in the knowledge that they
could not be attacked. Typically inmates
spent 23 out of 24 hours a day locked in.
Over the years the unit gained a reputation as the unit of last resort in the system. Its regime was based on the assumption that the prisoners could only be controlled by coercion. There was little or no
trust between staff and prisoners and an
atmosphere of violence permeated the
place. In 1991, at the suggestion of a
joint group o~trade union and management represeptatives, the Unit was closed.
During its lif~time, it had gained in the
media a great deal of notoriety attached
to violent incidents and, to a degree, the
design of the cells themselves, which
earned the Unit the soubriquet "the
Inverness Cages."
(cont'd on next page)

allOWing prisoners to discharge e
in the traditional physical I9-ann
ing at any time, giving them im
where a grievance can be discu
Second, community meetings proVl
social control to conform to group n
the Unit a group decision was mad
was unacceptable, and the com
norm.
The relations between
the whole prison system
prisoner, said, "What rna e
the way staff and prisoners
down and talk together.
factor of the Unit." The p
general in high regard. T
access to regular andfr
prisoners value their vis
loss acts as a powerful
munity as a sanction
Lower assault rates
changes made possible
notes that there are Ion
with the Barlinnie utiit,
1) Prisoners may lear
way, or they may learn t
physically. The experien
resulted in improved ve
bal facility upon entry;
2) Over several year ,
new, nonprisoner social c
ferent values;
3) Some prisoners w
artistic talents, which pI' ,
value to them upon l'

FALL 1992

23

Barlinnie Special Unit
Against tWs background of use of segregation units in 1979, a working party,
under the chairmansWp of Alex Stephen,
considered the topic of "The Treatment of
Certain Male Long-Term Prisoners and
Potentially Violent Prisoners." The working party included senior prison service
officials, a psychiatrist, two prison governors and representatives of the prison
officers' association. The report was published in 1971 and implemented in 1973
with the opening of the Barlinnie Special
Unit.
What prompted the government of the
day to take what was-and is still
acknowledged as-a major risk in penal
reform? Alex Stephen himself said in an
interview in 1982, "In my mind the possible need for some type of special unit
arose in 1965 when capital punishment
was abolished, albeit on a trial basis in the
first instance. If one took history as a
guide the prison service was going to be
faced with the strong possibility that it
would have to contain a prisoner for the
rest of Ws life. This was based on the
assumption that before 1965, the 'bad'
murderer was hanged and the others
reprieved and eventually released on
license. To my mind, it would be necessary
to make some kind of prison to contain
the unreleasable lifer at the stage when,
for one reason or another, he could no
longer be contained by the routine of the
ordinary prison system.
"There were two other factors," says
Stephen, "which suggested to me that
some special provision might be
required. The first was the increasing
reluctance of the psychiatric profession to
accept psychopaths into the mental hospital setting-a reluctance based genuinely
on the growing belief that the most effective treatment was to allow the psychopath to mature in conditions of security, a
purpose whichJhe prison service could
fulfill.
"The second of these factors was the
growing evidence of violence by prisoners
against prison staff. It seemed to me that
the reasons for such violence had to be
examined and, if possible, steps taken to
ensure that the atmosphere wWch produced such violence should, as far as posSible, be changed," Stephen continued.
Stephen subsequently filled the post of
Controller, Operations, 1973-74 in the
SPS. In 1974 he was able to state, "By all
accounts, the Barlinnie experiment has
had a significant depressurising effect.
Since the Unit was set up, there has been
no violent assault of any gravity in a
Scottish Prison." TWs was not to last.
24

FALL 1992

How the BSU Operates
The rules by wWch the Barlinnie Special
Unit was run cannot, of themselves,
describe the extent to wWch it differed
from mainstream prison regimes. The
essence of the Barlinnie Special Unit lies in
the attitudes of the staff and the prisoners.
Up to that point, the culture of the SPS had
been, by and large, that prisoners were on:t
one side and Governors and staff on the'
other. In many ways and for long periods,
the majority of staff and prisoners had,,~
rubbed along reasonably well. But in order

to prosper, prisoners had to conform. The
ones who could not come to terms with
the normal regime ended up fighting itliterally and figuratively.
The community meeting-This was the
key to breaking down the traditional culture. These meetings take place every
'fuesday, but anyone can call one for any
reason at any time, day or night. At the
meetings, minutes are taken and staff and
prisoners have an equal opportunity to
speak. Grievances can be aired and hostility expressed orally, but without physical
violence. The group establishes the norms
for individual behavior. No formal penalties apply-such as loss of remission or
privileges-if anyone is judged to have
offended. Peer pressure then transcends
the "them" and "us" barrier which normally obtains in a mainstream prison. It
becomes, effectively, "us."
Choice and responsibility-Prisoners

in the BSU have the freedom, witWn very
broad parameters, to determine how they
spend their days. Over the years, several
have found a useful and rewarding outlet
for many of their problems in the artspainting, writing, sculpture, etc. TWs has
always been encouraged and, in the early
days especially, it helped enormously to
establish the BSU's reputation as a useful
experience for Wtherto violent and disruptive prisoners. But the key feature is the
power to choose, which is given to a prisoner, and the concomitant responsibility.
Visiting-Visiting rights are much more
extensive than in a mainstream prison.
Access to regular and frequent visits from
families and friends helps prisoners to

develop new relationsWps and renew or
strengthen old ones. These visits are so
important to prisoners that the fear of losing them acts as a powerful incentive to
self-control.
These factors combine to create an environment witWn wWch real personal relationsWps can be formed between staff and
prisoners. It leads to mutual understanding and respect-if not to friendship. This
in turn enables prisoners and staff to
establish mutual trust. Lack of trust lies at
the heart of the p\"oblems in mainstream
prisons.
,d
It is, neverth¢ess, salutary to reflect that
even after 18 years of existence, the BSU is
still regarded as an experiment. From its
early days, it was derided by the media as a
"gravy train" and "holiday camp" for evil
men whose shocking behavior in mainstream prisons was "rewarded" by the soft
life. Scandal stories from time to time hit
the headlines suggesting that prisoners
could obtain women, drugs and alcohol in
the Unit. Equally, the Unit had many vocal
and prominent supporters who saw it as
"an imaginative and enlightened experiment in penal reform."z Thus the debate,
as happens all too frequently, was polarized into "liberal do-gooders" versus
"right-wing fascists." It has been fortunate
indeed that on the occasions when these
outbursts occurred, neither the g'overnment of the day (Conservative and Labour)
nor the prison authorities lost their nerve.
They refused to be panicked or pressured
into closing it.
But, unfortunately, Alex Stephen's hope
that the BSU would lead to extensive
changes in mainstream prisoners and a
reduction in violence has not materialized.
The Unit's success is relative and narrow.
The prisoners who have gone there have
clearly benefited, and the prison system
has benefited from having them sent
there. 3 But the Unit has never been integrated into the system; it is separate from
it. Indeed, it operated throughout the
period that the Inverness Unit operated
and many of the BSU prisoners had experienced the Inverness Unit. It has also
proved well nigh impossible to translate
the culture of the BSU to staff and prisoners in mainstream prisons. Not surprising,
perhaps, when you consider that the
staff/prisoner ratio is much higher in the
BSU than in a mainstream hall in Barlinnie
Prison. The staff costs alone make it
impossible to translate the BSU model to
mainstream prisons.
The existence of the BSU has done nothing to avert the wave of violence, involving
staff hostages, riots, wholesale destruction
of halls and a general increase in unrest in
THE NATIONAL PRISON PROJECT JOURNAL

Scottish prisons during 1986-1988. The
system came close to breaking point;
implementing the lessons of the BSU took
second place to halting the steady decline
into anarchy and regaining control. But
while these steps were being taken,
thought was being given to the root causes
of the problems. Perhaps not surprisingly,
special units to contain the most dangerous and disruptive prisoners were once
again considered. Adocument entitled
"Assessment and Control: The Management of Violent and Disruptive Prisoners"
was issued widely for consultation by the
SPS. Fortunately, the Service listened to
what some people said in response to
it and a new policy was enunciated in
two documents, "A Shared Enterprise"
which is a strategy outline for the Service,
and "Opportunity and Responsibility:
Developing New Approaches to the
Management of the Long-Term Prison
System in Scotland."
The Future

I believe the lessons of the BSU experiment are now beginning to be put into
practice in the SPS. Plans for the future
management of long-term prisoners will
be based on a belief that the prisoner is a
responsible individual who should be presented with a range of opportunities to
allow him or her to use the time in custody
responsibly for personal development. The
SPS will continue to press for measures to
reduce overcrowding in prisons through,
for example, more noncustodial community-based punishments. It will continue to
open up the system to the public by edu-

THE NATIONAL PRISON PROJECT JOURNAL

cating it into a better appreciation of the
problems, opportunities and costs of the
system. Increasing investment in the training and personal development of the staff
and Governors will heighten their selfesteem and self-confidence and the regard
in which they are held by the public. The-:t
<./r

SPS has begun to improve visiting arrangements including escorted and unescorted
home leaves in order to strengthen family
ties and personal relationships. Abetter
balance is being sought among the competing demands of security-no escapes;
control-no riots; and opportunitiesprisoners exercising a degree of choice
over how they spend their own time.
Finally, there is a commitment to developing a greater number of small regimes
within the mainstream prisons. These
small units must be regarded as an integral part of the whole prison system and
each should be encouraged to develop its
own persona.
Conclusion
The BSU was and is ahead of its time. It
should continue to flourish and help pris-

oners who found no other hope in the system. But I believe its impact-and that of
other similarly inspired units-will always
be relatively limited in relation to the
problems of the SPS. Ultimately, the solution to these problems lies in the hearts
and minds of all the people in the whole
system-not just prisons, and in Ministers
continuing to support sensible, cost-effective management policies which resist
labels such as "liberal," "authoritarian,"
or "punitive." I have great faith in the ability of the pe0i¥e who manage Scotland's
prisons todaYJo incorporate the lessons of
the BSU int<dhe rest of the system. _

Peter McKinlay, former director ofthe
Scottish Prison Service, is chiefexecutive ofScottish Homes, a governmentfunded housing development agency.
I Prisons in the United States and United Kingdom
are more arbitrary, much harsher and more punitive
than those in Scandinavia (Ed. note).
2 Ludovic Kennedy.
3 D. Cooke, "Current Issues in Scottish Prisons:
Systems of Accountability and Regimes for Difficult
Prisoners," Scottish Prison Service Occasional
Papers, No. 2/1989.

References:
Third Eye Centre, The Special Unit: Barlinnie
Prison-Its Evolution Through its Art, Glasgow
(1982).
David J. Cooke, "Violence in Prisons: The Influence
of Regime Factors," The HowardJournal of
CriminalJustice, Vol. 30, NO.2 (May 1991).
David J. Cooke, "Containing Violent Prisoners:
An Analysis of the Barlinnie Special Unit,"
BritishJournalofCriminology, 29(2):140, Spring
1989.

FALL 1992

25

IDSU ,~te

Condom
Distribution
ommunity-based organizations,
angry taxpayers, and prisoners call
me periodically in search of strategies for condom distribution. I have talked
with prisoners who tell me that, without
condoms in prison, they've made do with
what's available to protect themselves: men
save bread wrappers, plastic baggies and
garbage bags to provide some type of barrier dUring sex; women make do with
sheets of plastic wrap.
Currently five jurisdictions make condoms available to prisoners-New York
City, San Francisco, Mississippi, Vermont
and Philadelphia. The latest condomavailability program is underway in
Washington, D.C. Most correctional
departments have looked the other way
regarding rules against sex in prison due
to the public health crisis of HIV/AIDS.
Women are excluded from most programs
because they do not provide dental dams,
the only method of HIV prevention for
women having sex with women. Only San
Francisco provides both dental dams and
condoms to prisoners. None of the systems have evaluated their programs to see
if condom availability has decreased the
rate of HIV infection. What follows is an
overview of eacll program and its
progress.

C

New York City-One Per Sick Visit

New York City started condom distribution in 1988 and now distributes rougWy
1,200 condoms a year, according to Iris
Solis, director of the Corrections AIDS
Prevention Program. Although there were
some security concerns, there have been
few problems. Prisoners register for sick
call and can receive only one condom per
visit from the medical staff.
Solis offers this advice to other systems
considering condom distribution: "First
start a small pilot program and monitor it.
I would strongly recommend using the
26

FALL 1992

medical model and giving out one con- ':
dom. Also monitor prisoners who are ,~
coming down on a daily basis. If it is successful expand it to other facilities."

something to arise later on that's going to
be far more costly. And as a taxpayer, providing condoms ~ a preventive measure
makes perfect s~.gse."
/~

San Francisco-A No Nonsense
Approach

Vermont-Condoms As A Public
Health Issue

The Forensic AIDS Project (FAP) started
San Francisco's condom-distribution program in 1988. Since under California penal
laws sex in correctional facilities is pUnishable as a felony, FAP persuaded state officials
to agree not to charge prisoners under this
statute. FAP provides HIY/AIDS education
five times a week and prisoners may receive
two condoms during any of these educational programs. And although women were not
written into the original policy concerning
condom distribution, they have been given
dental dams.
Ralle Greenberg, director of the Forensic
AIDS Project, takes a no-nonsense approach
to condom distribution: "We basically integrate it as part of our education program.
I'd advise correctional people not to make a
big deal about it. Also, if prisoners begin
using condoms while in custody they'll be
more likely to continue that use once they're
released into the community."

Vermont's condom-distribution program
began in 1988. Thomas Powell, director of
clinical services for the Vermont Department of Corrections says, "The condom
issue is based on HIV prevention."
Prisoners can only receive condoms during sick call and are limited to one per
visit.
According to Powell, "Condom distribution has to be viewed in the context of
public health policy instead of correctional
policy. Since 99% of all prisoners return to
the streets, one of our imperatives should
be not to make the HIY/AIDS epidemic
worse." Powell also offers the following
advice for systems considering condom
programs: "Look at condom distribution
as one component of a comprehensive
program of education, confidential testing
and counseling. Condom distribution
needs to be embedded in a comprehensive
policy of risk reduction. Otherwise you're
kidding yourself."

Mississippi-Condoms From
the Canteen

Condoms are not new in Mississippi,
since they have always been provided for
conjugal visits. In 1987, William Steiger,
hospital administrator at the state facility
in Parchman proposed making condoms
available in response to the HIV/AIDS epidemic. Prisoners must buy condoms at the
canteen, and there is no limit on the
amount a prisoner may buy. Initially they
cost five cents but the price was later
increased to 25 cents by state law, Outside
groups have repeatedly offered to provide
condoms for the indigent. Hospital administration has noted that condom sales usually increase after the end of HIV/AIDS
educational programs. Steiger can only
remember one incident when a condom
was used for contraband.
Steiger is pragmatic. "Education is the
most essential part. Everything after that is
common-sense. Being realistic, if we don't
provide condoms we're just asking for

Philadelphia-Sending a Message

Philadelphia's condom distribution was
implemented as part of an comprehensive
HIV/AIDS education program in 1988.
This program allows prisoners to receive
condoms through on-going educational
programs, during sick call, or at HIV
antibody-test counseling sessions. The
original idea was to allow prisoners to
pick up condoms with as little discussion
as possible.
Louis Tanner Moore, AIDS education
program supervisor, says, "I think you can
do some things without it [condom distribution] . But if you have people in an adult
setting they're going to make certain
choices. Some people will choose to be
sexually active. Having condoms available
sends the message that a prisoner's health
is important." •

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

blications
The National Prison Project
Status Report lists by state ;J:

1990 AIDS in Prison
Bibliography lists resources

those presently under court order,
or those which have pending:;litigation either involving the· .
entire state prison systemq,
major institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.)
Updated January 1992. $5 prepaid
from NPP.

on AIDS in prison that are
available from the National Prison
Project and other sources,
including corrections policies on
AIDS, educational materials,
nkdical
and legal articles, and
.,
.' f<tcentAIDS 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/$25. 500 copies/$IOO.
1,000 copies/$150 prepaid.

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

The National Prison
ProjectJOURNAL, $30/yr.
$21yr. to prisoners.

The Prisoners Assistance
Directory, the result of a
national sUlVey, identifies and
describes various organizations and
agencies that provide assistance to
prisoners. Usts 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
is a detailed manual with practical
suggestions for jail litigation. It

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

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

(order
from
ACLU)

QTY. COST

ACLU Handbook, The
Rights of Prisoners. Guide to
the legal rights of prisoners,
parolees, pre-trial detainees, etc.,
in question-and-answer form.
Contains citations. $7.95; $5 for
prisoners. ACLU Dept. L, P.O. Box
794, Medford, NY 11763.

QTY. COST

Fill out and send with check payable to:

Name

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

Address

THE NATIONAL PRISON PROJEG JOURNAL

_

_

City, State, Zip

_
FALL 1992

27

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

rettes a day. The district court's decision in
favor of prison officials was reversed by
the Ninth Circuit Court of Appeals. The
Supreme Court gl.'fllted certiorari in June
1992; oral argt1ITJ~nt will be heard in
December 1993,~or January 1993.

T

Austin v. Lehman-This case challenges overcrowding and conditions in 14
Pennsylvania state prisons. On August 6,
plaintiffs filed a motion for a preliminary
injunction challenging the failure of defendants to implement an appropriate program of tuberculosis (TB) control. The
motion followed an outbreak of tuberculosis at the Muncy facility. On September 6,
the state announced a new TB control policy; a three-day hearing on plaintiffs'
motion was held soon after. On September
29, the judge issued the preliminary
injunction, ordering the state to implement
its new TB control policy.
Hamilton v. Morial challenges conditions at the Orleans Parish Prison, the
municipal jail for the City of New Orleans.
Plaintiffs moved for contempt sanctions
upon learning that officials had failed to

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

Inman v. Board of SupervisorsThis case challenges overcrowding and
conditions at the Northampton, Virginia
County Jail. The Sheriff has made considerable improvements at the jail as result of
the lawsuit. On August 5, at the request of
both parties, the judge dismissed the case.
However, he denied our request for attorneys' fees; we have appealed this decision
to the Fourth Circuit.
Helling v. McKinney-The NPP is
appearing as amicus curiae in this case of
whether the Constitution is violated when a
prisoner is exposed to levels of environmental tobacco smoke (ETS) that pose a
serious risk to his or her health. Nevada
state prisoner William McKinney filed suit
in federal court alleging that he was forced
to share a small, POQrly ventilated cell with
a prisoner who smoked five packs of ciga-

u.s. v. MichiganIKnop v. JohnsonThis is a statewide prison conditions case;
the National Prison Project appears as
amicus in U.S. v. Michigan. On September
8, the court issued an order rejecting the
stipulation filed in April by the Department
of]ustice to withdraw their motion to find
the state in contempt on mental health
issues.

Nonprofit Org.
U.S. Postage

PAID
Washington D.C.
Permit No. 5248

mt
." on
(t.
Recycled

/f# Paper

28

FAll1992

THE NATIONAL PRISON PROJECT JOURNAL