INSIDE ...
•

Nation of Islam

Rights Within the Walls ..... p. 3
•

Rhode Island

•

John Conrad

"Eternal Vigilance" is
Hallmark of Prison Case ..... p. 5
An Expert Witness' View of
What Needs to be Done ... p. 12

In the Fall, we'are raising the annual
subscription rate for the JOURNAL to
$20. A JOURNAL subscription will
remain $2 for prisoners.

ISSN 0748·2655

court proceedings, Tennessee, like
almost every other state, was confronted with steadily worsening overcrowding of its prisons. Such overcrowding resulted from the stiff
sentencing policies adopted by state
courts and lawmakers in reaction to
increases in the crime rate in the 1960s
and 1970s. Like most other states, Tennessee responded to the overcrowding
on Tennessee's unique state constitucrisis by attempting to "outbuild" the
tional guarantee of "safe and comfortpopulation trend. The state initiated an
able prisons" and the "humane treatambitious prison construction program,
ment of prisoners." After five years of
which was particularly costly in light of
litigation and early successes in the trial
the fact that Tennessee's per capita
court, the case came to an inconclusive
income is among the lowest in the
end when Tennessee's Supreme Court
country. Between 1973 and 1983, the
refused to rule on the merits of the
prisoner population jumped from 3,000
to 7,000, and the number of major
case, leaving the hot potato of prison
reform to the federal court.
prisons also more than doubled, from
Throughout the course of the state
-continued on page J J
Tennessee prisoners wait for cells to be found for them at one of the reception centers.

Recent Federal Court Orders
Spur Tennessee Toward Prison
Reforms
Gordon Bonnyman
For decades the conventional political wisdom in Tennessee dictated that
there was no political constituency for
prison reform. Although voters could
always be counted on to support longer
prison sentences, they were indifferent
or even hostile to improving prison conditions. The resultant neglect produced
squalor, waste and violence throughout
the prison system.
A federal court has recently turned
conventional wisdom on its head, creating a powerful political constituency
for prison reform almost overnight.
Improvement in conditions has already
been dramatic, and continued reform is
promised. These developments offer an
encouraging example of the progress
made possible by the careful and welltimed intervention of a federal court
committed to the rule of law and the
vindication of prisoner's rights under the
Constitution.

In only three months, the increase
wiped out the gains in population
reduction that had been made over
a period of more than a year.
The recent legal and political developments are the result of court battles
waged by the National Prison Project
and Tennessee co-counsel for more than
ten years. In the fall of 1975 we filed a
class action in state court on behalf of
Tennessee inmates. The prisoners' claims
in that case were based not only on the
Eighth Amendment's prohibition of
"cruel and unusual punishment," but also
AlP World Wide Photos.

A PROJECT OF THE AMERICAN CIVIl... I...IBERTIES UNION FOUNDATION, INC.

Letter to the Editor
In the Winter 1985 issue we published an
article by Susan Sturm entitled, "Special
Masters Aid in Compliance Efforts." The
following letter is in response to that
article.
Dear Ms. Sturm:
This letter is prompted by your
article in the Winter .1985 issue of the
National Prison Project JOURNAL
regarding the role of Special Masters in
implementing prison decrees. Because of
your leadership role in this area, I
thought it might be appropriate to bring
to your attention the experience of one
state which appears to contradict one of
your conclusions.
In the article, you state:
"The master must be able to define
and maintain a position of neutrality in
order to function effectively. In the
past, masters have sometimes carried
out their responsibilities in the absence
of any clear guidelines as to how to proceed, what to achieve and what to
avoid. This absence of a clear mandate
can lead to unrealistic expectations and
mixed signals among inmates and prison
officials alike. For this reason, masters
now recognize the importance of defining carefully, in order of reference, a
master's duties, responsibilities, powers
and limitations."
In 1982, a U.S. District Court
declared unconstitutional major portions
of the Tennessee prison system. Grubbs
v. Bradley, 552 F.Supp. 1052 (M.D.
Tenn. 1982). The initial opinion of the
court called for the appointment of a
Special Master, and, in doing so, set out
in general terms the parameters of the
Special Master's role. 552 F.Supp. at
I 13 I. Actual selection and appointment
of a Special Master did not occur until
three months later, by which time a
decision had been made by the state not
to appeal the original decision. The
order of reference, which was entered
on Novembel'" I2, 1982, read in its
entirety as follows:
"It is ordered that Patrick McManus
be and he is hereby appointed the
Special Master in accordance with a
memorandum and order of this court
entered on August I I, 1982. He will
carry out the provisions of the order
and will be compensated at the rate of
$50 per hour. He will make one report
to the Court when the terms and conditions of the memorandum and order are
complied with. These cases are retired."
Thus, the order of reference was
on the one hand very vague and on the
other hand fraught with quite serious
implications for the state. The court in
2 SUMMER 1986

essence was telling the state that it
would have to make its peace with the
Special Master, to whom the court was,
in effect, entrusting the implementation
of the decree. While the Special
Master's powers were explicitly circumscribed in the original decision of August
I I, 1982, he implicitly was given very
broad powers in the subsequent order
of reference.
The ambiguity of the Special
Master's role has, I think, been an asset
to the parties and the ~ourt in their
efforts to resolve the litigation. The
Tennessee prison system has been
wracked with violence and riots since
the court's initial decision and the
appointment of the Special Master, and
we are still years from achieving a
constitutional system which would justify
the closing of the case. Nonetheless,
there has been very substantial progress
to date, with reason to believe that we
will someday be able to achieve a system
which does more than simply meet
constitutional minima. While "the jury is
still out" on the Tennessee experience,
there is reason to prehminarily judge the
experience with "mastering" here as
being a success.
Although the Grubbs court's
approach to defining the Special Master's
role in ambiguous terms appears to have
worked well in Tennessee, I would hesitate to be prescriptive about using the
same approach in all other cases. The
political climate, as well as the personal

histories, temperaments, and personal
and professional relationships of the various players all tended to create a
context which made the court's
approach particularly appropriate.
I tend to think that the same ambiguous definition of the Special Master's
responsibilities might be similarly desir~
able in some other, but by no means all,
cases.
I do not want to imply that the
course of the litigation since the entry
of the original order has been tranquil or
uncontroversial. On the contrary, it has
been characterized by a great deal of
political and legal controversy, contempt
proceedings, and the imposition of an
unprecedented injunction against admissions into the prison system, pending
resolution of the overcrowding crises.
At the same time, substantial progress
has been made through hard bargaining
and the negotiation of consent decrees.
The Special Master has been able to
modify his role as appropriate to
respond to these varying conditions and
crises. That he has managed to do so
while maintaining his neutrality is attested to by the fact that state officials
concurred in Mr. McManus' appointment
as Special Master in 1985 in a separate
lawsuit dealing with conditions of confinement on Tennessee's death row.
I hope that this information is helpful to you and to others at the national
level who are analyzing the experience
of "mastering" around the country in an
effort to identify which approaches are
the most effective in different cases.
Sincerely,
Gordon Bonnyman

The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N. W.

Washington, D.C. 20036 (202) 331-0500

JAN ELVIN
Editor, NPP JOURNAL

ALVIN j. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

ALEXA FREEMAN
EDWARD I. KOREN
MARY E. McCLYMONT

NKECHI TAl FA-CALDWELL
URVASHI VAID

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

DAN MANVILLE
Research Associate
LYNTHIA SIMONETTE
LORNA TUCKER

STAFF ATTORNEYS
ADjOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

The National Prison Project is a tax-exempt foundation-funded project of the ACLU Foundation which
seeks to strengthen and protect the rights of adult and juvenile offenders; to improve overall conditions in
correctional facilities by using existing administrative, legislative and judicial channels; and to 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 National Prison Project JOURNAL is designed by james True.

Muslims in Prison Seek
Religious Recognition
Nkechi Taifa-Caldwell

In the past, we have seen great
resistance to official recognition of the
practice of certain non-Christian
religions within America's prisons. This
resistance has often stemmed from the
cultural prejudices of prison administrators, under the guise of security concerns. In the I960s the courts began to
carefully scrutinize how those regulations and practices infringed upon the
right of inmates to practice the religion
of their choice. Prison administrators
across the country have begun to recognize, albeit reluctantly, that certain
groups, particularly Black inmates,
possess legitimate religious interests and
modes of expression.
Since the I960s, thousands of Black
prisoners have embraced Islam as their
faith, and many of its most prolific ministers have spent time in prison. A 1960
address by slain Nation of Islam (NOI)
minister Malcolm X, described the
achievements of Nation of Islam leader
Elijah Muhammad, in converting the
imprisoned:
"He has taken men who were
thieves, who broke the law-men who
were in prison-and reformed them so
that no more do they steal, no more do
they commit crimes against the government. I should like to think that this
government would thank Mr. Muhammad for doing what it has failed to do
toward rehabilitating men who have
been classed as hardened criminals. The
psychologists and the penologists-all the
sOciologists-admit that crime is on the
increase, in prison and out. Yet when
the Black Man who is a hardened
criminal hears the teachings of Mr.
Muhammad, immediately he makes an
aboutface. Where the warden couldn't
straighten him out through solitary confinement, as soon as he became a Muslim, he begins ts become a model prisoner rightin that institution, far more
than whites or so-called Negroes who
confess Christianity." I
Contrary to "thanking Mr. Muhammad," as Minister Malcolm suggested,
many prison administrators responded to
the rapid embrace of Islam under the
direction of the Nation of Islam by
claiming that it was not a religion, and
that its converts were protected by
none of the constitutional rights enjoyed
by followers of the more conventional
religions.

At the same time, mass hysteria was
being generated against the Nation of
Islam (popularly known as "Black Muslims") in the larger society. Through the
Freedom of Information Act, we now
have evidence that the Federal Bureau
of Investigation used every "dirty trick"
at its disposal to attempt to misdirect
and disrupt the Black liberation movement in general, and the Nation of Islam
in particular. The FBI targeted' not only
the Nation of Islam for attack, but also

Since the 1960s, thousands of
Black prisoners have embraced
Islam as their faith, and many of
its most prolific ministers have
spent time in prison.

Anthony Coleman, Lonon Photography Workshop

such groups as the NAACP, the Black
Panther Party, the National Urban
League, the Republic of New Afrika, the
Southern Christian Leadership Council,
and the Student Nonviolent Coordinating Committee. The stated goals of the
FBI's program, code-named COINTELPRO, were to prevent the coalition of
Black nationalist groups, prevent the rise
of a Messiah who could unify and electrify the movement, pinpoint potential
troublemakers and neutralize them,
prevent groups and leaders from gaining
respectability, and prevent the growth
of these organizations, especially among
the young. 2
A bulletin emanating from the
Chicago FBI office in 1969 illustrates

Address by Malcolm X. Boston University Human
Relations Center. February 15. 1960. reprinted in
The Black Muslims in America, C. Eric Lincoln.

In addition to the Nation of Islam, other
Muslim groups such as the American
Muslim Mission, Moorish Science Temple
of America, Sunni Muslims, Melanic Muslims, Shiite Muslims, and AI-Islam also
have adherents in prisons, and all have
been engaged in court battles for recognition of their religious faiths.

Religious Rights in Prison
The argument over the constitutionally protected rights of Muslims in
prison has focused on the following: the
right to a religious diet, the recognition
of religious names, and the controversy
over pat frisks by female guards. These
and many other issues have been
addressed by the courts, and the decisions have generally sought to balance
the inmates' right to religious freedom
with prison officials' concern for
security and discipline.

The Right to a Religious Diet
The Islamic religion prohibits the
consumption of pork, and requires the
observance of the religious holiday of
-continued on next page.

2
I

just one of countless examples:
"Over the years considerable
thought has been given, and action taken
with bureau approval, relating to
methods through which the NOI could
be discredited in the eyes of the general
Black populace .... "3
Nation of Islam pronouncements
equating whites with "devils," advocating a separate ·territory for Blacks, and
maintaining a highly disciplined paramilitary force were more than enough
to send chills up the spines of those
who, consciously' or unconsciously, felt
threatened by thh reinvigorated attempt
within segments of the Black community
to blend spirituality, racial pride and
identity into a cohesive force.
Interpretations of Islam and its holy
text, the Koran or Qu'ran, vary, and
such distinctions likewise manifest inside
prison walls. The societal fears and gov~
ernmental efforts to discredit the Islamic
faith, however, demonstrate the obstacles that those who have embraced the
Islamic faith have struggled with in their
arduous battle with prison officials,
simply for recognition of their religion.

"Supplementary Detailed Staff Reports on
Intelligence Activities and the Rights of Americans." Washington: U.S. Government Printing
Office. 1976. pp. 21-22.

3SAC Chicago. "Counterintelligence Program.
Black Nationalist Hate Groups Racial Intelligence
(Nation of Islam)." Chicago: January 22. 1969.
pp. 1-5.

SUMMER 1986 3

-continued from previous page.

Ramadan. In celebrating Ramadan, followers are to refrain from eating during
the daylight hours, and are to consume
only ritually significant foods after sunset
and before sunrise. The dietary
requirements of Muslim prisoners have
often led to conflict between prisoners
and corrections officials. Because of its
low cost, pork and its by-products frequently appear on prison menus, sometimes to the extent that an adequate
non-pork diet is unavailable. Furthermore, prison officials assert that the
widespread use of pork as a seasoning
makes it difficult to isolate pork-free
dishes.
Although prison administrators generally defend these policies on the
grounds of cost, convenience and security, courts have upheld many of the dietary requirements of the religion. The
District of Columbia Circuit, for example, held that inmates in the D.C. jail
had a valid claim against jail administrators since their request for a minimum
of one full-course pork-free meal per
day had been denied. The court held
that the use of pork as a seasoning
could be reduced, non-pork substitutes
for main dishes could be provided,
menus shoWing pork content could be
posted in advance, and pork dishes could
be more evenly dispersed throughout
the meal cycle. 4
Similarly, another court emphasized:
"[T]he state has little affirmative
interest in what kind of food prisoners
eat; and it is of no great problem to
prepare alternative diets. The rule presumably would be different if the prisoner's religion mandated him to eat the
tongues of hummingbirds and drink the
milk of paradise. "S
Once the inmate rejects the pork
items, if the regular menu can prOVide a
nutritionally adequate non-pork diet,
then he is reqUired to accept it. The
Food Services department must identify
any items which might contain pork. 6
Muslim prisoners have also established
the right not to handle pork as part of
their work assignments.?
Courts, however, have placed some
restrictions upon the Islamic prisoner's\
right to adhere to the dietary tenets of .
the religion. Utensils used in preparation
of non-pork meals need not be segre'See, Barnett v. Rogers, 410 F.2d 995, 1002-03

gated from pork items as long as they
are sufficiently cleaned before being used
to cook food consumed by those who
do not eat pork. s
In Walker v. Blackwell, 411 F.2d 23
(5th Cir. 1969), several Muslims alleged
that their First and Fifth Amendment
rights had been violated since prison
administrators refused to prOVide them
with a special diet and special feeding
hours during the observance of Ramadan, which lasts 30 days. The prison officials had been providing Jewish inmates
with one special meal each year during
Passover. The Fifth Circuit, however,
held that a special diet lasting 30 days,
instead of just one, could not be provided because of the added cost of
preparation, and the additional "security
problem" created by assigning security
staff to move the Muslims during the
night hours. These factors served to
outweigh "whatever constitutional
deprivations petitioners may claim. "9

Recognition of Religious Names
A prisoner's need for cultural and
religious identity has compelled many to
adopt another name. A look at the case

. . . [W]e now have evidence that
the [FBI] used every "dirty trick"
at its disposal to attempt to
misdirect and disrupt the Black
liberation movement . . .
law reveals, however, that many prison
administrators have required Muslim
inmates to use religiously offensive, nonMuslim names, under the threat of punishment or the withdrawal of privileges
(such as access to the law library, sick
call, visits, food and clothing). 10
The courts have held that prisoners
who have adopted Muslim names are
entitled to First Amendment protection
as an integral part of their faith and
religious practices, and that they are
entitled to use these names, absent a
compelling state interest, without the
threat of punishment or the withdrawal
of privileges. II In Masjid v. Keve, the district court disagreed with the defendants' assertion that the Muslims' resistance to. use of their previous names
was socially, rather than religiously
based,12

(D.C.Cir. 1969).

sSee, Walsh v. Louisiana High School Athletic
Association, 428 F.Supp. 1261. 1268 (1977).
'See, Battle v. Anderson, 376 F.Supp. 402
(ED.Okla. 1974); X. (Bryant) v. Carlson, 363
F.Supp. 928 (E.D.1I1. 1973); Barnes v. Virgin
Islands. 415 F.Supp. 1218 (D.V.1. 1976).
'See, Chapman v. Pickett, 586 F.2d 22, 26 (7th
Cir. 1978), following remand. 491 F.Supp. 967
(C.D. III. 1980); Kenner v. Phelps. 605 F.2d 850
(5th Cir. 1979).

4 SUMMER 1986

8See, Masjid Muhammad-D.C.C. v Keve, 479 F.Supp.
131 1 (D.DeI.l979).

'Walker. supra, at 25-26; Cochran v. Sielaff. 405

"While it is true that plaintiffs view
those names as insulting for reasons
which could be described as historic or
social, it does not follow that their
animosity towards those names is without a religious base. Plaintiffs regard
their old names as haVing their genesis in
the institution of slavery, but ... they
also regard those names as representatives of a spiritual identity they no
longer have:"13
Thus, courts have held that absent
an important objective and a policy reasonably tailored to the achievement of
that objective~a state may not punish a
prisoner for failing to acknowledge a
particular name; nor may he be punished
for failing to perform a task where to
do so would involve the acknowledgement of a religiously offensive name.
The courts, however, have determined
that this reasoning does not mean that
prisoners are entitled to disregard
orders with impunity whenever a staff
member fails to use the Muslim name.
The holdings only denote that a prisoner
may not be disciplined for his refusal to
acknowledge his non-Muslim name. 14
Prison officials cannot be mandated to
address a prisoner by a religious name,
and they need not change the person's
prison records to reflect the new
name. IS

Pat Searches
Pat searches upon Muslim males by
female guards present a most intriguing
dilemma for those who uphold the
recognition of religious rights for prisoners while advocating the equal employment rights of women. In juxtaposing
two cases which have addressed the
issue, we find contrasting arguments,
both embodying substantial merit.
First, in Madyun v. Franzen, 704
F.2d 954 (7th Cir. 1983), the court
stressed that there was "substantial
interest" in haVing its female officers
perform pat searches on nonconsenting
Muslim inmates. The court reasoned:
"Clearly frisk searches are an integral part of prison security and an
important part of a prison guard's
duties. If women are not allowed to
perform these limited searches-or can
perform them only on women inmatesthe utility of women prison guards
would be significantly diminished ....
[T]he state is obligated under Title VII of
the Civil Rights Act of 1964, 42 U.S.c.
§200e(h) (1976) and Supp. Iv (1980), to
avoid discriminating on the basis of sex
in the employment of guards. [Quoting

F.Supp. 1126 (S.D.1I1. 1976).
'°Azeez v. Fairman, 604 F.Supp. 357. 364 (C.D.1I1.

1985); Masjid Muhammad. supra.
"Azeez, supra, 604 F.Supp. at 365; Masjid, supra.
479 F.Supp. 1324; Akbar v. Canney. 634 F.2d
339. 340 (6th Cir. 1980) (per curiam).
'2Masjid, supra. 479 F.Supp. at 1323.

131d. at 1323.
14/d. at 1325; Azeez, supra, at 364.
ISBarrett v. Commonwealth of Virginia, 689 F.2d
498 (4th Cir. 1982); Imam Ali Abdullah Abda v.
Connery. 634 F.2d 339 (6th Cir. 1980).

..

Smith v. Fairman, 678 F.2d at 54, the
court continued] 'If a state is required
to hire women as guards in its male
prisons, it reasonably seems to follow
that it must be allowed to utilize female
guards to the fullest extent possible.' "16
Thus, the court held that the provision of adequate prison security and
equal opportunity for women to serve
as prison guards were important enough
state interests to allow frisk searches of
male prisoners by female guards.
The second case, Rivera v. Smith,
742 N.E.2d 1015 (N.Y. 1984), however, held that there was no legitimate
security interest and a minimum of frustration of employment opportunity to
justify pat frisks by female guards. In
Rivera, testimony was presented at trial
by William Gohlman, a professor of
Islamic history, about the importance to
Muslims of preserving their bodily
dignity.
"[T]he Qu'ran forbids a Muslim
from revealing his genitals to or having
them touched by a member of the
opposite sex other than his spouse.
According to Gohlman, the Qu'ran is
the 'direct, literal word of God, is the
foundation of all Islamic law and cannot
be controverted in any way.' Gohlman
testified that for a Muslim to have his
body touched, even with clothing on, by
a member of the opposite sex would be
absolutely prohibited, shameful and a
very great sin. He futher indicated that
this prohibition is listed in the Qu'ran
among its major tenets and is put on the
same level as prayer, alms giving and the
other pillars of Islam, the basis of Islamic
religion.' ' 17
Under the circumstances of the
case, Rivera found that no legitimate
security objectives were advanced by
the use of female prison guards to frisk
male Muslim prisoners and that the
state's interest in affording women equal
opportunity to serve as correctional
officers did not compel a different
result. 18
The objectives of upholding the
. dignity of Muslim prisoners and preserving the eqt:lal opportunity for
women are both admirable, and the
dilemma of the clash between the two
will most likely be the subject of future
litigation.
Conclusion
No doubt, much of the opposition
by prison officials to the recognition of
religious rights for Muslim prisoners in
the past had roots in the public hysteria
and smear campaign generated against
the Nation of Islam in the larger society.
Prison officials often raised exaggerated
16Madyun, 704 F.2d 954, 960 (7th Cir. 1983).
Rivera, 742 N.E.2d at 1017.
IS/d. at 1021.

17

Sweeping New Order in Rhode
Island Case Promises Further
Relief
Alvin j. Bronstein
severe and the federal court was once
On May 12, 1986, the United
again asked by the National Prison ProjStates District Court in Rhode Island
ect to intervene.
issued another in a long series of opinions in the Rhode Island State Prison
History of the" Case
case finding two of the facilities unconAfter an extended trial in August
stitutionally overcrowded. In a sweeping
1977, the United States District Court
order, the court set population caps on
in Rhode Island issued an opinion finding
each facility and directed the state to
the entire state prison system unconstidevelop plans to remedy serious current
tutional because of gross Eighth Amendproblems with idleness, environmental
ment violations, and issued an extensive
health and safety, and medical and
remedial order. 2 Among other things,
mental health care.
the
order set forth detailed requireA little over one year ago we
ments for inmate housing, environmental
described the progress that had been
health and safety conditions, inmate
made in the Rhode Island prison system
activity, and medical and mental health
(NPP JOURNAL, Spring 1985), and concare. The order also required the state
cluded that story saying " ... seven
to house pre-trial detainees separate
years of judicial involvement in this
state's prison system have made a differ- . from sentenced prisoners and appointed
a Special Master to oversee and monitor
ence." We also mentioned a concern
compliance. By 1984, many of the faciliabout future overcrowding and that the
ties had come into compliance and the
court had created new timetables and a
court relieved the Master of his duties
reporting mechanism to insure that conbut expressed concern about the rising
ditions in the various facilities did not fall
population and its potential impact.
below constitutional requirements
On November 19, 1984, after a
because of population pressures. By late
series of hearings, the court entered an
1985, the overcrowding at the Medium
Security Facility (Medium) and the Intake order which set forth further compliance requirements and reporting and
Service Center (ISC)I had become quite
compliance deadlines, particularly with
Rhode Island has no jails. All pre-trial detainees are in state
respect to inmate programming, medical
custody and are housed in the ISC.
and mental health services, and inmate
housing space at Medium and the ISC.
concerns for security, discipline or
administration in opposing any attempt
On June 24, 1985, the court reactiby Muslim groups to practice their relivated the Special Master to conduct an
gion. Depsite this, some of those prejuassessment of the state's success in
dices have given way to the recognition
meeting the terms of the November 19,
that rights valued by other religious enti1984 order. On July 22, 1985, the
ties apply equally to adherents of the
Special Master filed his Findings And
Islamic faith in general, and the more
Recommendations which inter alia found
controversial Nation of Islam in particuthat the defendants had not complied
lar. This is the result of massive First
with certain important provisions of the
Amendment litigation emcompassing a
November 19, 1984 order and that
wide variety of issues. The propagation
although they had the plans and
of these issues, regardless of whether
resources to comply with some of those
relief has been obtained, has been an
provisions, they clearly were unable to
attempt by Islamic prisoners to validate
do so under the current compliance
their existence in the face of what once
deadlines.
appeared to be an essentially homoOn September 17, 1985, a status
geneous cultural and religious environconference was held in chambers. The
ment, and to gain at least a modicum of
court considered the Findings And
respect and recognition from other prisRecommendations of the Special Master
oners and the administration. Additionand heard from the parties about the
ally, the raising of such issues has served
current state of overcrowding and idleto garner the much needed pride and
ness at the Medium Security facility and
dignity so instrumental to success in the
the Intake Service Center. The court
rehabilitative process. •
determined that an evidentiary hearing
I

Katy Baird, former law student intern at
NPP. also contributed to this article.

-continued on next page.

-------~

'Palmigiana v. Garrahy, 443 F.5upp. 956 (D.R.I. 1977).

SUMMER 1986 5
.....

"'
....n.........
_n_
.....

..

~I.•l.
J:
j

i

.

I,

I

Photo courtesy Rhode Island Department

of Corrections.

-continued from previous page.

was necessary at the earliest possible
time to examine these issues and to
determine whether further remedial
relief was required to protect the constitutional rights of the plaintiffs as set
forth in the earlier decrees of the court.
An order was then entered setting the
matter for trial beginning December 16,
1985, and stating:
"The Court will take evidence on
the current state of overcrowding and
idleness at the Medium Security Facility,
including its protective custody population, and the Intake Service Center and
the impact of said conditions on the
basic housing, health, environmental and
safety standards which the defendants
are required to meet under the prior
orders of the Court."
Between September and December
of 1985, extensive discovery was conducted and experts in the fields of corrections, environmental health and
safety, medical and mental health care
toured the facilities and reviewed documents. Depositions were taken of the
state's experts; pre-trial stipulations and
briefs were prepared and filed with the
court.

"Old Max" as it looked in May of 1978. As a result of over seven yeors of National Prison Project
litigation, conditions such as this have been eliminated.

The December 1985 Trial
The evidence at the three-day trial
clearly demonstrated two things: the
defendants were not in compliance with
the prior orders of the court; and the
overcrowding at the two facilities had a
serious and adverse impact on the basic
housing, programming, health, environmental and safety standards which the
defendants were required to meet under
those orders. Every essential fact was
not controverted by the defendants and
much of the testimony of plaintiffs'
experts was corroborated by the defendants' experts.
The Medium Security Facility, which
consists primarily of dormitories with
two small cellblocks, has a rated capacity
of 180 inmates. Under prior court
orders, which established population
limits for each dormitory, the capacity
was 222 inn"l'ates. At the time of the
trial, the population was close to 270
inmates, with the most severe overcrowding in the protective custody
dormitory where the population was at
190% of the rated capacity and 160%
of the limit established by the court.
The overcrowding was even more
severe at the ISC, where the 168 cells
are each designed to hold one inmate.
The actual population had exceeded the
design capacity by increasing percentages
for the four years since the facility
opened in 1982. By November I, 1985,
the population reached 347, over 200%
of the design capacity. Each of the cells
had been refurnished with two metal
bunks, one on top of another, and

beginning in July 1985, as many as 39
cells on one day were triple occupancy-the third inmate was required to
sleep on a mattress on the floor. That
arrangement left so little floor space
that the two inmates on the bunks had
to step on the third inmate or his mattress in order to get to the open toilet
in the cell. The detainees spent I9 to 20
hours a day in their cells because of the
lack of adequate day room and recreation space and were required to eat
their meals in their cells. Many of them
were detained for very long periods of
time under these conditions.
The plaintiffs' experts testified that
the overcrowding created tension,
causing security problems and violence.
They noted the high level of assaults,
particularly at the ISC. All of the
experts agreed that the defendants were
wholly out of compliance with the very
specific provisions of the court's order
on programming and that the serious
problem of idleness was even greater
now because of the current overcrowding. At Medium there were only 160
assigned jobs for a population of over
260 and half of these jobs were porter
assignments which barely occupied one
hour a day. This was compounded by
completely inadequate educational and
vocational training opportunities for the
numbers of men housed in the facility.
At the ISC, the previous court
orders required the defendants to provide meaningful programming for detainees, especially for those whose stay at
the facility exceeded 45 days. The evi-

6 SUMMER 1986

dence clearly demonstrated that there
was even more idleness at this facility .
than at Medium. At a time when the
population was over 300, there were
only 82 assigned jobs, of which 57 were
porter assignments. On a particular day
in October 1985, there were 136
inmates who had been incarcerated at
the ISC for 45 days or longer and there
were only 30 non-porter jobs available.
There were no educational or vocational
training programs and recreation was
practically nonexistent because of the
numbers of inmates and lack of space.
The environmental health experts
testified that the defendants were clearly
out of compliance with the court's prior
orders and that the overcrowding at
both facilities had a negative impact on.
public health and safety. They found
specific violations in fire safety, plumbing, rodent infestation, electrical wiring,
ventilation, sanitation, physical deterioration in housing and kitchen areas. They
discovered a complete breakdown of
the Central Kitchen which provides bulk
food for the entire prison system. In
addition, the maintenance staff and its'
ability to do either preventive or repair
work had been overwhelmed as a result
of the problems caused by the overcrowding.
Similarly, the medical and mental
health care experts found that the
defendants were wholly out of compliance with earlier court orders and that
the current overcrowding detrimentally
affected their ability to provide adequate
basic medical and mental health care

services. They testified that serious
medical needs of inmates were not being
adequately addressed and medical and
mental health care services fell below
minimally accepted standards of care.
Among other things, they found: deficiencies in initial medical screening and
physical examinations; a significant backlog of inmates waiting long periods of
time for their intake physical exam;
serious shortages of physician, dental,
mental health, pharmacy, clerical and
nursing staff; inadequate emergency care
and equipment; inadequate training of
staff; inadequate policies, procedures,
protocols and data collection; inadequate
housing, assessment and treatment of
mentally disturbed and suicidal inmates;
and inadequate sick call system and
follow-up procedures.
At the conclusion of the trial, we
made an oral motion asking the court to
immediately enjoin the triple-ceiling at
the ISC in light of the uncontroverted
testimony that this practice deprived
detainees of the minimum civilized
measure of life's necessities, violated all
prior orders of the court, and violated
the Fourteenth Amendment Due Process rights of pre-trial detainees. The
court granted the motion, subsequently
entering a written order to that effect
and directing the parties to file post-trial
briefs while taking the rest of the case
under advisement.

Legal Issues
Two separate legal arguments were
made by the NPP. Because all of the
existing orders of the court are final
judgments and no motions to modify
these orders were made by the defendants, we first argued that these orders
are the law of the case and that the
defendants are precluded from relitigating any of these issues. As in Hutto v.
Finney, 437 U.S. 678 (1978), the court
here could look to see if past constitutional violations had been remedied,
examine the conditions as a whole, while
having ample authority to fashion a
remedy going beyond earlier orders to
bring an ongoifilg present violation to a
halt.
Second, we argued that the two
Supreme Court decisions dealing with
prison and jail overcrowding that have
been decided since the original 1977
decision in this case should not change
the outcome. In Bell v. Wolfish, 441
U.S. 520 (1979), dealing with detainees,
and Rhodes v. Chapman, 452 U.S. 337
(1981), involving sentenced prisoners,
the Supreme Court held that overcrowding per se (in both cases doubleceiling in new facilities designed for single
occupancy) was not unconstitutional.
The decisions in those cases are limited
to the facts of those cases where the
court found that the overcrowding had

Supreme Court Briefs
Mark Tushnet
So far in the 1985-86 term the
Supreme Court has decided four caSes
involving the rights of prisoners.
Although lawyers will not find it difficult
to work around the Court's denial of
prisoners' claims in the first three cases,
the decisions will make it harder for
prisoners who represent themselves to
get trials in federal court on claims that
their rights have been violated. These
decisions also send a signal to the lower
federal courts, already being increasingly
staffed by Reagan appointees, that they
need not listen to prisoners' claims with
too much sympathy. The fourth case,
which eliminated a defense available to
prison officials in certain cases, was the
only one at all favorable to prisoners.

Daniels v. Williams, _ _ U.S.
(1986),38 Cr.L. 3082 (1/22/86), and
Davidson v. Cannon, _ _ U.S. _ _
(1986),38 Cr.L. 3087 (1/22/86), were
.decided on the same day because the
Court thought that they raised the same
legal issue. The question the Court
addressed was whether someone's constitutional rights are violated when a
state official negligently does something
that results in taking away a person's
property or liberty, thereby creating a
cause of action under the Federal Civil
Rights Act. Daniels was an ordinary slip
and fall case, which happened to arise in
a prison. Daniels was an inmate in a city
jail who slipped on a pillow that a deputy

no impact on environmental health and
safety, idleness or medical care. Thus,
unlike the present situation in Rhode
Island, there was no evidence that the
conditions deprived inmates of the minimal civilized measure of life's necessities.

Medium at 222 and the ISC at 168, with
all cells required to be single occupancy
and directed the defendants to achieve
those limits within three and six months
respectively. The court also ordered the
defendants within 60 days to develop
plans for curing the constitutional inadequacies in programming, environmental
health and safety, and medical and men- .
tal health care, and gave them 120 days
to come into compliance. Finally, the
Special Master was directed to inspect
and report on compliance quarterly and
was given the authority to retain
experts to assist him.

The Outcome
We acknowledged that the court
had demonstrated remarkable patience
as it continually granted deadline extensions to the defendants and permitted
them to run their prison system with a
minimum of judicial intervention.
However, we believed that the time had
come for the court to preserve the
integrity of its prior orders and prevent
ongoing constitutional deprivations to
the plaintiffs.
We asked the court to impose
timely population limits on both facilities,
with phased reductions, and to enjoin
the defendants from exceeding those
limits at the end of the relevant time
periods. In addition, we asked that the
defendants be required to develop
specific and timely plans for remedying
the various deficiencies in programming,
environmental health and safety, and
medical and mental health care and that
these plans be fully implemented within
certain periods of time.
Finally, we asked that the Special
Master be directed to conduct semiannual inspections and to prepare
reports indicating the defendants' compliance with each provision of the remedial order and defendants' plans. In conducting those inspections, we asked that
the Master retain the services of experts
in the relevant fields to assist him, as
appropriate, in evaluating compliance.
The May 12, 1986 opinion and
order of the court completely sustained
our position and granted all the relief we
requested. It set population caps on

-continued on next page.

The Lesson To Be Learned
There are a number of lessons to
be learned from the long and difficult
history of this case. Prison overcrowding, unlike the neglect which led to the
problems in the I970s, is often not
capable of being controlled by prison
officials themselves, despite their competence and best intentions. If the legislatures and the courts keep sending them
prisoners in increasing numbers without
correspondingly increasing their
resources, there is little that a prison
official can do. It has been our experience that a state or local jurisdiction will
rarely respond to overcrowding problems in the absence of a court order or
consent decree resulting from court
action. They are aware of the problem,
often know the solutions, but their
political judgment tells them to do nothing unless forced to by the courts. The
courts, and not the politicians, can then
be accused of being soft on criminals.
This story illustrates the need in
prison conditions litigation for eternal
vigilance by counsel for the plaintiffs
and the continued involvement of the
court. •
SUMMER 1986 7

j

-continued from previous page.

had negligently left on the stairs. The
Court unanimously agreed that Daniels'
constitutional rights had been violated
because, according to the majority opinion by Justice Rehnquist, negligent acts
by state officials are not the sort of
thing that the due process clause of the
Fourteenth Amendment was designed to
guard against. He said that it would
"trivialize the centuries-old principle" to
hold that injury caused by negligent
conduct violated the Constitution.
The Court's analysis may be difficult
to reconcile with the language of the
Fourteenth Amendment-after all,
before the accident Daniels had something (his health) that he didn't have
after it, so it looks like he has been
deprived of something, and the question
would seem to be whether the state had
followed the appropriate procedures
(due process) in putting Daniels in that
position. But on the facts of the Daniels.
case, it is hard to see that a special injustice was done to Daniels that demands a
remedy based on the Constitution.
The facts in Davidson are more
troubling. Davidson was a prisoner in the
New Jersey State Prison who had been
threatened by another prisoner. He sent
a note to the prison officials reporting
the threat. The note was sent to the
appropriate official who received it but
did not read it or take any other action.
Two days later the other prisoner
attacked Davidson with a fork, breaking
Davidson's nose and inflicting other
injuries. The Court relied on Daniels and
held that, because Davidson alleged only
that the prison officials had negligently
failed to act in response to his note, his
constitutional rights were not violated.
Justices Brennan, Blackmun, and Marshall, who concurred in Daniels dissented
here, arguing that Davidson had alleged
recklessness by the prison officials, not
mere negligence. Justice Blackmun
argued in addition that because the
state, by placing him in prison, had
deprived Davidson of the ability to
defend himself, it owed him a special
duty to respond to threats against his
safety. The dissent pointed out that
recklessness or deliberate indifference
was all that a prisoner needed to prove
that denial of essential medical care violated the Eighth Amendment ban on
cruel and unusual punishment, and that
the Due Process Clause provides
broader protection than the Eighth
Amendment.
The Court was sharply divided 5-4
six weeks later in Whitley v. Albers, 54
U.S.L.W. 4236 (3/4/86), which arose
from a prison "riot" in Oregon. Albers
had attempted to protect some elderly
prisoners from tear gas. Prison guards
began their assault on the cell block
while Albers was attempting to return
8 SUMMER 1986

D.C. Pushes Panic Button in Jail
Population Crisis
Steven Ney
The District of Columbia's prison
crisis continues. Recent developments
highlight the chaos both inside the
prisons and outside in the larger political
arena where the issues are being fought.
In july 1985, Federal judge William
Bryant imposed a permanent population
cap on the D.C. jail at 1,694. (See
JOURNAL issue No.5, Fall 1985). To
meet that cap the District entered into
a temporary agreement with the federal
government providing that all newly sentenced prisoners in the District would
be sent into the federal prison system.
Utilizing that agreement the District was
able to reduce the jail population from a
high of 2,600 to approximately 1,600
by late 1985. By March 1986, the Federal Bureau of Prisons had taken approximately 700 D.C. prisoners. A total of
2,400 D.C. prisoners are now in the
federal system. These prisoners were
sent hundreds and even thousands of
miles from home; additional prisoners
were jammed into halfway houses and
into existing facilities at Lorton, Virginia.
to his cell, and get out of their way. In
the confusion, the guards shot Albers in
the knee. justice O'Connor's opinion
for the Court held that, where guards
were attempting to resolve a prison disturbance by taking security measures,
the guards should not be liable for the
injuries they inflict unless they used
unnecessary force to inflict pain wantonly. justice O'Connor emphasized the
deference the courts should give to
actions taken in response to riotous
inmates. The opinion then went on to
assess the facts, and concluded that
Albers had not provided sufficient evidence from which a finding of wanton
infliction of pain could be made. The dissenters, in an opinion by justice Marshall,
disagreed with some of justice
O'Connor's formulations of the relevant
standard, but did not fundamentally disagree with the approach she took to the
constitutional question. But they did
challenge the Court's assessment of the
facts that Albers had proved.
It has always been quite difficult to
recover damages from prison officials in
circumstances like those in Albers. Nor
need any of the cases prevent trials
from occurring where attorneys allege
the appropriate degree of recklessness
or wantonness. The disagreements
between the justices over the interpretations of the facts in Davidson and
Albers show that careful attorneys

The federal government, however,
exacted a high price from the District
for this temporary assistance: a commitment from D.C. Mayor Marion Barry to
build yet another 700-800 bed prison in
the District. Although the federal government offered to pick up the initial
construction cdst, the far greater longrun cost of operating the prison would
fall on the District's residents.
With the District already the prison
capital of the country (With I, 100 per
100,000, the nation's highest incarceration rate for any state or city), the new
prison would add one more facility for
caging black men (and perhaps women I).
I

At the present time all women serving sentences
of more than one year are being sent into the
federal prison system from their homes in the
District, a result which has been harshly criticized
but seems impervious to change, despite lawsuits
and recommendations from the U.S. Congress.
"Hearings on the Female Offender-I 979-80, "
House Judiciary's Subcommittee on Courts, Civil
Liberties, and the Administration of Justice. See
also Cosgrove v. Smith, 697 F.2d 1125, 1126-7
(D.C.Cir. 1983).

should be able to construct their claims
so that the cases will proceed beyond
the earliest, pleading stages. The effects
on pro se litigants, who cannot be
expected to be so careful, will be more
serious.
In Cleavinger v. Saxner and Cain,
_ _ U.S. _ _ (1985),54 U.S.L.W.
4048 (12/ I0/85), the Court held that
prison officials who are members of a
disciplinary hearing committee are
entitled to a qualified immunity defense,
rather than absolute immunity, when
sued by prisoners for their actions as
committee members. If the Court had
granted absolute immunity to hearing
officers, such as that given to judges,
they would have been immune from
damage suits by prisoners under the Civil
Rights Act. Under qualified immunity, a
prisoner can recover damages from a
hearing officer if it can be proven that
officers knew or should have known
that they were engaged in constitutionally prohibited activity.
Perhaps most important out of all
these cases is the lack of sympathy with
which the Court read the records in
Davidson and Albers. It will undoubtedly
encourage Reagan's appointees to the
federal district courts to be similarly
unsympathetic to prisoners' claims. •

Mark Tushnet is a Professor of Law at
Georgetown University Law Center.

-n
Darrel Ellis - The Washington Post

I

Inmates arriving in buses were prevented fram entering the D. C. Jail far nearly three hours late ane night in March 1986. Their presence would have
forced the Jail over the court-imposed population ceiling.
In january 1986, the federal govern- trict engaged in a frantic effort to come
Reports filed with the District of
ment terminated the agreement and
up with additional prison space. On sevColumbia indicate that the District:
refused to take additional District priseral occasions the District even kept
I. failed to increase half-way house
oners into the federal system. Thus
prisoners confined on buses outside the
capacity despite a commitment to add
began the real crisis within the District
400 additional beds;
jail for periods of up to 10 hours.
of Columbia as prisoners filled up all of
In March, under the cover of dark2. failed to make timely parole
decisions before an inmate's parole
D. C. 's facilities not already under court
ness, the Corrections Department tried
order.
to transform an abandoned, dilapidated
eligibility date; as a result inmates were
The Mayor hoped that his commitpolice station located in the midst of a
being incarcerated past their eligibility
ment to build a new prison would congentrified residential neighborhood on
dates, increasing the overcrowding;
vince the federal government to
Capitol Hill into a vest-pocket jail. The
3. failed to take any effective
facility had been condemned by the Disreinstate its agreement to accept D.C.
action to lobby on behalf of the Emertrict's Fire Marshal as a firetrap, and was gency Overcrowding Powers Act;
prisoners. It would also ensure smooth
sailing for the Mayor's budget before
totally unsuitable for housing. Finally,
4. failed to implement in any subSenator Arlen Specter, Chairman of the
faced with community opposition, lawstantial way a Third Party Custody
District of Columbia Appropriations Sub- suits, and political pressure, the District
Program;
committee. But, as of this writing, no
dropped the plan.
5. failed to classify the inmate
such arrangement had occurred.
The District also sent busloads of
population to determine which prisoners
Because most of the District's
prisoners to a private prison in Pennsylneeded secure confinement and which
vania. That effort too was thwarted
prisons are under court order - the jail,
could be placed in community-based prothe Central and Maximum Security Facili- when the Attorney General of Penngrams; the expert hired by the District
sylvania sued to enjoin the transfer, and
of Columbia indicated that their own
ties and Youth ~enters I and II - the
a state judge ordered the buses turned
only remaining institutions available for
data were incomplete, inaccurate and
around and sent back to the District of
inconsistently collected.
secure incarceration were the prisons at
Columbia.
Occoquan I, II and III in Virginia.
Because of the combination of the
Finally, at the end of March the Dis- District's failure to implement basic
Each of those three prisons were
trict created about 60 extra spaces for
designed to hold a total of approxialternatives to prisons which they had
weekend prisoners by converting an
mately 1,000 prisoners in open dormiagreed to, the shut off of the federal
abandoned cellblock in the basement of
reservoir known as the Bureau of Pristories. By the end of April 1986, the
the old D.C. Superior Court into a
ons (itself approximately 45% over
Occoquan prisons were holding close to
makeshift jail.
capacity), and the continued aggressive
1,500, about 50% over capacity.
In the eight months since the
prosecution of drug cases by the U.S.
Reports from inmates and newspaper
Attorney's office, the rate of incarceracourt's 1985 order, the District has
accounts indicate that there is a high
tion in the District is continuing to
level of tension and violence, and deplor- failed to implement the alternatives to
incarceration agreed upon in a stipulation climb. And this persists despite a downable living conditions. 2
ward trend in reported crime in the DisDuring February and March the Dis- signed by the Mayor and approved by
trict for the third straight year.
the federal court in an effort to stave
The District still has no short-term
off the ban on intake of additional
2NPP is investigating these facilities, at inmate
request, for possible court action.
prisoners.
-continued on next page.
SUMMER 1986 9

J

--:continued from previous page.
or long-term solution in sight. The
Mayor has committed his administration
to building another prison in order to
foster a positive relationship with Senator Specter's Appropriations Subcommittee, and with the justice Department, which might help the Mayor out
temporarily by taking additional
prisoners into the federal system. The
building approach will not work and the
Mayor knows it. His own Correctional
Facility Study Commission told him in
january 1986, that if a new jailor prison
were built it would be filled up in a matter of months, or perhaps one year.
The Mayor knows from bitter experience that bUilding another jail will not
work. During the last six years his
administration has built 2,000 additional
beds at Lorton; yet, the system is still
massively overcrowded.
Meanwhile, the problems continue
to fester. On April 28, 1986, a riot
erupted in Youth Center I at Lorton.
The inmates ransacked portions of the
administration building and burned down
a wing of the school bUilding. Only shotgun-wielding guards could restore a semblance of order after shooting and injuring II inmates, one seriously.
In March, Mayor Barry was held in
contempt of court for failing to comply
with a long-standing court order at Lorton's Central Facility and the federal
court threatened the appointment of a
Special Master.
This seemingly never-ending saga of
the D.C. prison crisis will continue until
the District does some meaningful longrange planning and decides once and for
all how many prisoners it must have,
until it regards imprisonment as the last
choice rather than the first, and until it
comes up with a comprehensive
approach to this complex problem. The
simple, but certainly not cheap, answer
of more prisons has again been shown
to be a bankrupt approach. Perhaps we
will learn the next time around. •

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Hold Your Nose!

NPP Examines the Diet Loaf
Betsy Bernat
There seems to be a new trend
emerging in the kitchens of America's
prisons. Seems a prison just can't hold
its head up anymore unless it bakes a
diet loaf for its administrative segregation prisoners.
We first encountered the loaf at
Arizona State Prison. Former NPP attorney Claudia Wright described it as a
"mass of chopped foods ... compressed, shaped into loaves, frozen, then
microwaved and presented as a meal .... "
Attorney Urvashi Vaid, who tasted it,
described it as "simply awful." Inmates
were served the diet loaf three times a
day for seven days as punishment.
I was intrigued. Why a diet loaf? I
wondered. I know nutritionists have long
recommended that we eat three square
meals a day, but is this what they meant?
After all, if you're going to get literal,
what about a prisoner's need for a wellbalanced meal? Would it tie in somehow
with the Scales of justice? Should the
supper fit the crime? Exactly what roll
would justice serve here? (None, to inmates on the loaf plan.)
Then it hit me. There was a theme
here! Tell me, due to inadequate programming, what do most prisoners do all
day? Why, they loaf! Those clever chefs.
No doubt they also serve chili on chilly
days. Nothing like a little kitchen humor.
Let's take a closer look at the loaf.
Of course, our nutrition expert judy
Wilson already did, and described it as
"a gray-brown color and lumpy in texture" with "an offensive odor." But I
mean let's really scrutinize it. I for one
see nothing but the brightest of futures
for it. My prediction? The diet loaf will
be America's next big food trend.
You read it here first. Forget the
grilled tuna; say so long to tortellini. The
loaf is a no-muss, no-fuss meal; it
freezes beautifully, and heats up in a
jiffy. You can eat it out of your hand,
and, if you cook it too long, you can
use it as a doorstop. Can you say the
same thing about that messy pan of
jambalaya you made last week?
Creative cooks, take note! Diet
loaves have been known to contain
everything from ground swiss steak to
lime gelatin-in the same loaf!
And what a boon it will be for the
frozen food industry. Can you imagine
the ads? "Diet loaf. It isn't just for
prisoners anymore." Or, "A jug of
wine, a diet loaf and thee."

Get "The Frugal Gourmet" on the
phone. Do you have a little leftover diet
loaf? Chop it up and throw it into your
next batch! What could be more
economical?
I'm mad with the possibilities. The
loaf is so versatile! So adaptable! So-so
rectangular!
Nutritionist Wilson, who felt no
fondness for the loaf, remarked that
from the loaf ingredients could be made
"a meal of bean soup, fried liver, beef
with mashed potatoes, cabbage, and
pudding. "
True, but think of all those dirty
dishes. The diet loaf dirties no more
than one bowl and one pan.
Of course there is one drawback to
the loaf. In fact, perhaps it could be
called more than a drawback. It seems
that prisoners aren't eating it. To quote
them, it's "smelly" and "tastes bad."
Our nutrition expert found it "extremely unappealing. I could not bring myself.
to sample it, as I was fearful of becoming ill." Not a promising start for the
diet loaf industry. And bear in mind,
prisoners are fed the loaf 21 meals in a
row. One prisoner refused to eat it and
lost 15 pounds.
Perhaps we should send the diet loaf
back from whence it came (like to the
mulch pile?). Let's dirty a few more pans
and get back to serving regular meals to
inmates. •

7th Edition of Prisoners' Assistance
Directory now available. See 1'.15.

.300 N. Zeeb Road, Ann Arbor, MI48I06 .

10 SUMMER 1986

...

TENN. REFORMS
-continued from front page.

five to I I. Yet the new facilities were
overcrowded almost as soon as they
opened, and the crisis intensified. After
having increased the prison budget by
nearly 250% in only six years, the st'!te
was worse off than when its bUilding
program started. Moreover, the rate of
growth in prison population had yet to
reach its peak, since several years would
pass before the consequences of stiffer
sentencing laws enacted in the early
1970s were fully felt. By 1985, the
Sorcerer's Apprentice of harsher sentencing and parole policies was producing
a net annual growth of 1,200 inmates
per year, an increase which would have
required the state to bring on line a new
major prison every five months, indefinitely into the future.

. . . the theme sounded by state
officials was punitive, rather than
reformist.
Throughout the course of the state
court litigation, the federal court had
abstained from considering prisoners'
complaints regarding institutional conditions. As soon as it became clear that
the state judiciary was unwilling to
grapple with the problem, however, the
federal court responded promptly and
forcefully. The U.S. District Court in
Nashville accepted jurisdiction of a number of pro se complaints filed by prisoners and appointed to represent them
the same counsel as those who had
handled the state court litigation. In the
summer of 1982, after considering tens
of thousands of pages of testimony and
documentary evidence, the court issued
a I68-page opinion declaring unconstitutional 10 of the state's II prisons.
Grubbs v. Bradley, 552 F.Supp. 1052
(M.D.Tenn. 1982). The court did not
attempt to formulate its own remedy,
showing the same restraint and the same
hopes for responsible ·state leadership
which had pre¥iously led it to abstain
during the pendency of state proceedings. Instead, the court directed Governor Lamar Alexander and Tennessee
Department of Corrections officials to
submit a plan within six months for the
correction of the constitutional deficiencies outlined in the court's ruling. The
court also called for a Special Master to
oversee review of the state's plan. After
negotiations between the parties, the
court approved the appointment of
Patritk McManus, a former administrator of prison systems in Minnesota and
Kansas, as Special Master.
In January 1983, amid much political
fanfare, the state unveiled a "Correctional Plan for the '80s" that purported

to respond to the court's mandate. Acting on the traditional political perception
that prison reform offers no political
dividends, the theme sounded by state
officials was punitive, rather than
reformist. More political rhetoric than
substance, the plan promised to "put
convicts to work." But the court subsequently found, and events confirmed,
that the plan only worsened already
widespread idleness and violence in the
prison system, by cutting out almost all
of the existing meager educational programs. Because of that and other
serious defects the court ultimately
rejected the defendants' plan.
Meanwhile, the overcrowding crisis
worsened. In October 1983, after
lengthy, intense negotiations, and mediation by the Special Master, state officials
proposed a timetable for the gradual
reduction of inmate populations at the
most seriously overcrowded )nstitutions.
The court issued an order ratifying the
state's plan with minor modifications.
The order reqUired a reduction of a net
of 50 inmates per month, until a total
net reduction of approximately 1,200
prisoners had been achieved. The state
chose to enact an Emergency Powers
Act (EPA) similar to that legislated in
several other states, accelerating the
parole eligibility dates of a limited pool
of prisoners.
Although the population reduction
program temporarily eased the overcrowding crisis, it still left unresolved
the many other pervasive constitutional
deficiencies which the Governor's plan
had failed to address. In July 1984, again
follOWing intensive negotiations overseen
by the Special Master, the court entered
an order to which the defendants had
tacitly consented, pressured by their
fear of the court's reaction to the
state's previous political posturing and
footdragging. Under the 1984 order,
the state was required to hire outside
experts to evaluate the system and
make recommendations regarding the
formulation of an appropriate remedial
plan. The evaluators' recommendations
were to be implemented by the state,
unless it could show that they were not
reasonably related to the accomplishment of their objectives, or unless the
state could come up with equally timely
alternatives that would be more costeffective. The parties reached agreement regarding the selection of experts
to be hired, and these evaluators spent
nearly a year developing exhaustive
reports and recommendations, which
were finally filed in July 1985.
The population problem (presumably
solved by the court's October 1983
order of a timetable for phased population reductions at each of the prisons)
flared into crisis again. For more than a
year, the population had declined as the

state implemented the court's timetable.
By the spring of 1985, however, the
pool of potential releases under the
Emergency Powers Act had been
exhausted. Since the state had never
addressed the sentencing laws which had
caused the higher incarceration rates,
once the EPA was exhausted population
again began to balloon out of control. In
only three mqnths the increase wiped
out the gains in population reduction
that had been made over a period of
more than a year. Crowding was again
becoming critical, particularly at several
of the state's mllst troubled institutions.
During this stressful time, there was
a change in judicial personnel. Judge L.
Clure Morton, who had resided over
the case, went into semi-retirement, and
the case was reassigned to Judge Thomas
A. Higgins, a recent Reagan appointee
to the District Court bench. Confronted with rapidly worsening prison
conditions and a request by the state
that it be relieved from the terms of the
October 1983 court order, Judge
Higgins quickly mastered the voluminous
record in the case. In June 1985, he
granted the state a temporary breather
by extending the population reduction
timetable. However, he tightened the
terms of the Special Master's oversight
of the state's compliance and signaled
clearly that he would not tolerate
further deviations from the court's
orders.

Then, with a single stroke, the
court remedied the situation in the
intake facilities and radically
altered the political climate.
Coming quickly on the heels of the
order, riots broke out at six of the
state's institutions during a two-day
period in early July. The riots left one
prisoner dead and caused millions of dollars in damage. The Governor an"
nounced that he would call the legislature into special session in November on
the prison crisis. Prison officials proposed that the legislature fund a corrective plan which would have ignored many
of the outside evaluators' most critical
recommendations, and which would have
sidestepped the need for long-term'
reform of state sentencing and release
eligibility laws.
Against this political backdrop, conditions in the prisons continued to
worsen, aggravated by the damage done
during the July riots. The situation was
particularly grave at the state's three
reception centers, where unclassified
inmates were crammed together,
unsupervised, in makeshift dormitories.
This greatly increased the number of
rapes and the general level of violence
-continued on next page.

SUMMER 1986 II

-continued from previous page.

In September, the plaintiffs filed a new
request with the court for immediate
relief from these conditions. At the
same time the state reported to the
court that it was simply unable to
control the population by any means,
and would therefore be forced to violate the court's new deadline established
in June (when the court had granted the
state's request for an extension of
time).
In spite of the crisis, a consensus in
favor of reform appeared nowhere on
the political horizon. The Governor's
proposals, if adopted, would have committed the state to continued noncompliance with the court's orders, and
many legislative leaders expressed a
determination to openly defy the court.

Improvement in conditions has
been dramatic, and continued
reform is promised.

II

)1
'I

w

Then, with a single stroke, the
court remedied the situation in the .
intake facilities and radically altered the
political climate. Ruling from the bench
on October 23, 1985, at a hearing on
the plaintiffs' request for immediate
relief, the court enjoined the state from
admitting any new prisoners into the system, effective immediately. The injunction was to remain in effect until the
population of the intake facilities was
reduced to constitutionally mandated
limits. On the other hand, the court
continued the pressure on the state to
reform itself, by reaffirming the earlier
deadline requiring reduction of the other
prisons' populations to acceptable limits
by December 3 I .
Although the court's actions
prompted some public and official
resentment, there was widespread
awareness that the state had brought
the crisis upon itself by failing to set its
own house in order. Most important,
the action galvanized local judges, prosecutors, jailers and police officials into a
powerful 10bQY for prison reform. The
court's action put a cork in the prison
bottleneck, backing up the rest of the
state's criminal justice system. Population pressures on local jail and detention
facilities forced the release on recognizance of many defendants and delayed
trials which might have resulted in the
imposition of a prison sentence.
When the special session of the
legislature convened in early November,
movement toward reform was spurred
by these pressures from local officials.
The specter of more court-imposed
sanctions, should the state fail to meet
the December 3 I deadline for further
population reduction, provided greater
pressure. Guided to a great extent by a
12 SUMMER 1986

An Expert Reflects on the
Changing Face of Prison
Litigation
John Conrad
Prison litigation, as conducted by
the National Prison Project *, has
changed the landscape of American
penology beyond the recognition of an
old-timer like myself. I have been proud
to be an occasional small cog in the
process that has brought to an end many
of the most disgraceful features of the
American criminal justice system as it
was managed in 1947, when I began my
penological career, and for many years
thereafter. What I have to say in these
reflections should not be construed as
adverse criticism of AI Bronstein, his
staff, and their influence. We all have a
debt of gratitude to them. The Project's
-.york is a good cause for faith in the
legal profession, the survival of altruism,
and the continuing benefits of the Bill of
Rights.
Nevertheless, there is a lot more to
be done, and I think the National Prison
Project must get on with doing it. It was
'Editor's note: While other groups and individuals
around the country are litigating prison cases, the
NPP is the only group engaged in systematic
challenges to prison conditions on a national scale.

well-staffed and well-led Special Committee on Corrections, the month-long session proved to be extremely productive.
A new overcrowding safety valve was
enacted to replace the bankrupt Emergency Powers Act. Legislators passed a
bill directing the closing of the troubled
19th-century Tennessee State Prison and
ordering its replacement with two new
prisons. Efforts to turn over part or all
of the prison system to a private corporation were rejected.
The Governor revised his remedial
plan to conform with the recommendations of the court's evaluators. The
legislature funded the plan with an additional first-year appropriation of $55
million. The state created a sentencing
commission to study existing sentencing
laws and make recommendations for
their overhaul, a major step toward
long-term population stability.
IneVitably, the court's order has
resulted in some jail overcrowding at the
local level. To a surprising extent, however, the criminal justice system has
responded to the shutdown of prison

one thing to c1~an up the prisons of Alabama, one of tne most enjoyable
reforms I have ever witnessed. It is quite
another to think through and agitate for
the creation of a penal system that
makes sense in late 20th century
America. In what follows, I want to use
the Alabama reforms as a case study
with a fairly happy ending, and then to
consider the implications for future
prison litigation. I shall conclude with a
warning about some dismal omens on
the horizon which suggest a role for
prison litigation in the public advocacy of
common sense in penology.

The Alabama Case
My introduction to the National
Prison Project occurred in August 197~,
when AI Bronstein invited me to be an
expert witness in the case which was
then designated James v. Wallace, now
more generally known as Pugh v. Locke.
It was my first experience as an expert,
and to this day I am still nonplussed
about my role in that case. The conditions prevailing in the overcrowded Alabama prisons have been described elseintake by diverting would-be jail inmates
to pre-trial release or probation programs. The state succeeded in meeting
the deadline and is now slowly beginning
to reopen intake at the prisons.
Although the worst of the overcrowding
has been corrected, pervasive constitutional deficiencies remain.
In spite of these continuing problems, there is now a political, as well as
judicial, mandate for reform for Tennessee's prison system, for the first time
since the convict leasing system was
abolished nearly a century ago. At a
time when many question the propriety
or effectiveness of judicial intervention
in such cases, the Tennessee experience
is an encouraging example of what can
be accomplished when a court, balancing
restraint with resolve, makes it clear to
a state that the Constitution shall be
obeyed. •

Gordon Bonnyman is a senior attorney
with Legal Services of Nashville and Middle
Tennessee and has been a lead attorney in
the Tennessee prison case since its inception in 1976.

where and frequently, they were shown
on national television, and they still
challenge belief. The indifference and
incompetence of an undermanned and
untrained staff shocked me almost as
much as the filth, the vermin, the prevailing idleness, and, most of all, the grotesque crowding of three or four prisoners into spaces where only one should
be. Some prisoners were aSSigned to
spaces where no one should be. (Memorable example: the mattresses installed
over the banks of urinals in the North
Dorm of Mount Meigs.) Prisoners who
failed to report on time for a work
detail were assigned to the infamous
"doghouse," a special unventilated,
unlighted facility in which eight men
were packed into one cell. On the other
hand, there was no supervision in the
dormitories, which housed as many as
250, or in cellblocks, in which the locks
were inoperative, thereby removing all
restraint on opportunities for sexual
assault and other predations.
This was the bottom. In my time,
no prison conditions in this country
approached this level of unintended
depravity.
What kind of expertise is needed to
pronounce on the unacceptability of
such conditions? Ted Gordon, a public
health expert, discovered bed-bugs in
the clothing room, roaches in the
kitchen, weevils in the flour, and rats
everywhere. Such findings require an
expert who knows where to look.
Some of these fauna I could see for
myself, but Gordon knew more about
their hiding places than I will ever know.
No judge, certainly not the redoubtable
judge Frank johnson, who presided over
James v. Wallace, would ignore expertise
such as this.
But what expertise is needed to find
unacceptable the packing of 250 men in
a 50-man dormitory, for 24 hours a
day? Or the jamming of I50 men into
50 cells that had been designed for single
occupancy? I toured these places, testified on what I had seen, and was gratified later on tQ learn that my testimony
had established the unacceptability of
these obViously unacceptable conditions.
But any layman capable of counting numbers into the hundreds and pacing off
the length and breadth of a dormitory
could have done as well as I.
In its wan attempt to defend the
indefensible, the State of Alabama put
no restrictions on my movements or
observations. I could go anywhere, talk
to anyone, and examine any records I
wanted to see. That is the way it should
be, but state attorney generals now
think they have learned a thing or two
to put people like me in a more difficult
position. Expert witnesses cannot be
kept out of prison, but their move-

John Conrad
ments, observations, and inquiries can be
closely monitored by an accompanying
lawyer from the attorney general's
office. The court order authorizing the
expert's visit can be drafted to restrict
observation to specified places and
activities, and to require that no
questions be asked of members of the
staff, even in the presence of the
attorneys.
The benefits to the state of these
boundaries on inquiry are certainly imaginary. The expert can only guess the
nature of the problems confronting the
prison warden and will have no idea how
or whether the warden and his staff plan
to tackle them.

But what expertise is needed to
find unacceptable the packing of
250 men in a 50-man dormitory,
for 24 hours a day?
The plaintiffs won the Alabama case.
judge johnson laid down a comprehensive court order detailing changes that
had to be made to bring the Alabama
prisons into conformity with the Eighth
Amendment of the Constitution. That
order was appealed and modified in part,
but movement toward reform began. It
is still going on.
This is not the place to recite the
well known history of the Alabama
reforms. What I want to do now is to
outline a perspective on them from
which the prison litigator and future expert witnesses can learn. In 1975, none
of us saw what the long run should be.
In the short run, it was easy to agree

that the Alabama prisons had to be drastically changed. The "doghouse" at the
Draper prison was demolished right after
judge johnson issued his decree. The aged and infirm prisoners at the institution
were removed from the dangerous
firetrap in which they had been confined. Most important, the decree required
that the population of the Alabama
prisons could not exceed their rated
capacities, as established in a report submitted to the court.
Overcrowding came to an end, but
the felonious co~duct of some Alabamians did not. The courts continued
to find men and women guilty of serious
offenses, but on conviction they had to
be placed on waiting lists for admission
to the state prisons. While waiting, they
were held in the county jails, which
were certainly no more salubrious than
the prisons had been and which were
becoming equally overcrowded.
Meanwhile, under the supervision of
a citizens' committee appointed by judge
johnson and, with the realization that
the federal court's jurisdiction would
not end until the prisons were in full
compliance with the court's order,
progress was being made. Dilapidated
old prisons were renovated, programs
and industries were installed, and professional staff developed.
In 1980 I was invited to revisit the
Alabama prisons. I was pleasantly astonished by the changes that had been made
in a fairly short time. The louts who
passed for prison guards and higher officials in 1975 had been replaced by reasonably alert and obviously trained men
and women; several good vocational
programs were in operation; some real
live psychologists were on duty; and
wardens and associate wardens had some
administrative talent. No one would
want to do time in an Alabama prison,
but one would not expect to be continuously terrified.
There was a nasty problem which
attracted the attention of john Carroll,
attorney for the prisoner plaintiffs, and
the concern of judge Robert Varner,
successor to judge johnson on the Federal District bench. This was the continued backlog of prisoners waiting in
the county jails for admission to the
state prisons. They accumulated to a
peak of about 2,000 and it was becoming obvious that the' awful conditions
that had prevailed in the prisons had
been shifted to the jails. In December
1982, judge Varner issued a decree that
this backlog be wiped out. To make sure
that it would be done, he appointed an
"implementation committee," consisting
of M.R. Nachman and Ralph I. Knowles,
two Alabama lawyers who had been
deeply involved in the original restruc-continued on next page.
SUMMER 1986 13

________________________J
1

-continued from previous page.

turing of the Department of Corrections; Dr. George Beto, Professor of
Criminal justice at the Sam Houston
State University in Texas; and myself, at
that time a Visiting Fellow at the
National Institute of justice in Washington. Our committee has been in existence ever since. Two developments
have eliminated the backlog of prisoners
in the county jails. Three large new prisons have been built, all of them close to
state of the art. That unfortunate necessity was imposed by the continuing rate
of commitments. We may deplore the
number of Alabamians who are sent to
prison for property crimes, and the
number who are sent to serve life terms
without possibility of parole, but if the
citizens require such severity in the
administration of justice, new prisons
there must be.

In my time, no prison conditions in
this country approached this level
of unintended depravity.
Fortunately, necessity may be the
mother of invention as well as of prison
construction. Making use of a convenient ambiguity in the state law, Commissioner Freddie Smith designed and put
into effect a new program of early
release for property offenders. Under
its provision, prisoners might be released
within six months of the original release
date to take part in a program called
Supervised Intensive Restitution (SIR).
They would be employed full time,
accept daily visitation from a parole
officer, pay any restitution that had
been ordered by the court, and pay an
appropriate monthly fee for the privilege
of their early release. The program has
been under some influential attack by a
politically ambitious attorney general,
but it now seems to be safe and accommodates several hundred selected convicts at any given time.
No state will preen itself on the
excellence of..its prisons, but the Alabama prisons are now a lot more decent
and progressive than the prisons of a
number of much more affluent states I
have visited in the course of my career
as an ..expert. "

The Role of the Expert
I now want to see what lessons we
can draw from this experience. First,
consider the nature of penological
expertise. If experts are to be summoned for the litigation, their experience must be comprehensive enough to
know what is wrong and to enable them
to be authoritative on what can be done
and what ought to be done. That means
that they must know such principles as

how many officers should be on duty
during a watch, what they should be
doing, where they should be stationed
and how they should be trained and
supervised. Or how a classification system should be organized and conducted.
Or what kinds of programs should be
installed in the administrative and protective segregation units.

The aged and infirm prisoners .
were removed from the dangerous
firetrap in which they had been
confined.

serious complaints had been drawn up by
the prisoners. Conditions were about as
alleged, but what could be done? The
California prisons were all overcrowded-and still are. The court's
order to make a drastic reduction in the
San Quentin population relieved the terrible local situation, but shifted the overcrowding to another prison outside the
jurisdiction of the court.
It may be necessary to solve some
prison problems piecemeal, but surely
consideration should be given to the
consequences for the whole system. In
the case of Calilornia, the solution to
almost any local prison problem will have
repercussions throughout the prison circuit, and, sometimes, outside it. The
dilemma for the Department of Corrections, the litigators, the experts, and the
court, is excruciating. Before the case
comes to trial, conferences should take
place to clarify feasible alternatives to
the conditions which constitute the
gravamen of the litigation.

There are general principles governing these matters and many others, any
of which have to be adapted for ancient
and obsolete structures which are still in
use as well as for the spanking new
prisons designed for effective architectural control. The experts should be
familiar with the various standards for
prison management, such as those established by the American Correctional
Association, the Department of justice,
Successful prison litigation states
and the American Bar Association. They
the problem but does not solve it.
should not be expected to know everything. I don't know any prison officials
who would qualify as sanitarians, nor
We have come a long way from the
should anyone like me be expected to
almost Manichean state of affairs that
pronounce on the adequacy of the medi- confronted judge johnson in 1975. At
cal services. Prison experts are needed
that time, experts were hardly needed
to say what ought to be done and
to establish the ineqUity of Alabama
whether it is being done by the manageprison conditions. We still need the NPP
ment of the prison in litigation.
and other prison litigators maybe as
No expert should take the witness
never before, but they need more and
stand without a thorough tour of the
better experts to conduct litigation that
prison about which he or she is to
will contribute to human penology.
testify. I urge litigators not to comSuccessful prison litigation states the
promise on this matter even when nego- problem but does not solve it. The
tiating a consent decree or court order.
court usually retains jurisdiction until it is
If the sole issue is the quality of life in
satisfied that the necessary changes have
been made, but it cannot make the
the Hole, the expert must see the rest
of the prison to have any basis for dischanges itself. That must be done by the
cussing possible changes. The tour
system's administrators, usually supershould allow for freedom to talk with
vised by a Special Master or a monitor.
officials about their perception of probThis arrangement inevitably causes a lot
lems and what should be done about
. of pain. There is a division of authority,
them. When conditions are as dreadful
and in a prison with all the ambiguities of
as they were in Alabama in 1975, then
authority in a three tier set of roles, the
the court needs to know whether there
authority of the Special Master may be a
is any potential for progressive change if fourth and confusing factor in the power
the officials on duty are to remain in
system. Both the warden's staff and the
charge.
guards have authority, and the Master
provides a new upward channel through
which grievances can and do flow.
Statewide Perspective Needed
That brings me to another problem
Under these circumstances it is
that has bothered me in my attempts to
essential that from the outset roles be
play the expert. Nearly all prisons in this defined as clearly as possible. The Special
country are now units in a system of
Master should be limited to the superviprisons. For example, a couple of years
sion of only those changes that the
ago I was asked to be an expert witness
court has prescribed. He or she should
in litigation brought against the warden
abstain from any other intervention in
of San Quentin-in a sense my alma
the system although useful recommater, where my penological career
mendations should be welcomed by both
sides. If these understandings can be
began. Violence was endemic, the place
effected from the beginning, problems
was grossly overcrowded, and a list of

(:1

ji

i
11

14 SUMMER 1986

j~
.

11

r
~

can be solved. If not, the changes the
court has ordered will drag on for
years, and will be carried out in an
atmosphere of resistance, if not outright
hostility.

Comments on the Future of
Litigation
At the outset, I said that the omens
for continued prison improvement are
not good. Prison sentences are longer,
parole boards are becoming more cautious about release, costs of prison construction are rising, programs that
reduce prisoner idleness are being eliminated or drastically pruned, and there
seems to be much less public concern
about the condition of our prisons.

There are signs that the federal courts
are losing patience with prisoners' c1assaction lawsuits. The dramatic abuses that
were brought into court in Alabama and
Texas, for example, are under correction. The less striking inequities can be
consigned to. the attention of administrators, prisoner grievance systems, or to
the ombudsman, if any.
Does this mean that litigation is
about to go out of fashion? I certainly
hope not. The National Prison Project
has accumulated a practical' expertise of
its own that the nation needs, perhaps
as never before. Who else really knows
how to move a reluctant system into
change? Who else knows what changes
are possible?

Many needed changes are beyond
the direct power of the courts to bring
about. If new prisons must be built, the
legislatures must vote the appropriations. If terms are too long, causing
unnecessary crowding, the legislatures
must modify penal codes. If parole policies are unduly restrictive, pressures
must be brought to bear for them to
loosen up. Anc;l if an innovation like Alabama's SIR program will reduce crowding, administrators will have to prepare
public opinion, organize the program,
train the employees who will carry it
out, and protect'it from foolish
decision-making. The National Prison
Project and other Iitigators can do none
-continued on next page.

QTY. COST

The National Prison
Project JOURNAL,
$20/yr. $2/yr. to prisoners.
Back issues, $1 ea.
The Prisoners' Assistance
Directory, the result of a
national survey, identifies and
describes various organizations
and agencies that provide assistance to prisoners. Lists
national, state, and local organizations and sources of assistance including legal, library,
medical, educational, employment and financial aid. NEW
7th Edition, published April
1986. Paperback:"$20 prepaid
from NPP.
Offender Rights Litigation:
Historical and Future Developments. A book 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, $2.50 prepaid
from NPP.
The National Prison
Project Status Report lists
by state those presently under
court order, or those which
have pending litigation either
involving the entire state
prison system or major institutions within the state. Lists
only cases which deal with
overcrowding and/or the total
conditions of confinement.
(No jails except District of
Columbia). Periodically
updated. $3 prepaid from
NPP.
Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
subject contained in our files.
Includes information on abortion, behavior modification programs, lists of other bibliographies, Bureau of Prison
policies affecting women in
prison, juvenile girls, women in
jail, the problem of incarcerated mothers, health care, and
general articles and books. $5
prepaid from NPP.

QTY. COST

It includes chapters on legal
analysis, the use of expert witnesses, class actions, attorneys'
fees, enforcement, discovery,
defenses' proof, remedies, and
many practical suggestions.
Relevant case citations and correctional standards. Ist edition,
February 1984. 180 pages,
paperback, $15 prepaid from
NPP.
The Jail Litigation Status
Report gives a state-by-state
listing of cases involVing jail conditions in both federal and state
courts. The Report covers
unpublished opinions, consent
decrees and cases in progress as
well as published decisions. The
Report is the first nation-wide
compilation of litigation involving jails. It will be updated regularly by the National Jail Project. Ist Edition, published September 1985. $15 prepaid from
NJP.
ACLU Handbook, The
Rights of Prisoners. A guide
to the legal rights of prisoners,
pre-trial detainees, in questionand-answer format with case '" ,"""n,.' .....'
citations. Bantam Books, April
1983. Paperback, $3.95 from
ACLU, 132 West 43rd St.,
New York, N.Y. 10036. Free
to prisoners.

A Primer For Jail Litigators
is a detailed manual with practical suggestions for jail litigation.

.....

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Fill out and send with check payable to
The National Prison Project
161 6 P Street, NW
Washington, D.C. 20036

NAME

_

ADDRESS
CITY. STATE. ZIP

_

SUMMER 1986 IS

111••11111
The following are major developments in the Prison Project's litigation
program since March 31, 1986. Further
details of any of the listed cases may be
obtained by writing the Project.
Abbott v• Richardson-This is the
national class action which challenges the
Federal Bureau of Prisons' mail and literature policies. The appeal was argued in
January before the D.C. Circuit.
Boudreau v. Wainwright-This case
involves the right of inmates in Florida
to wear armbands protesting the execution of John Spinkelink. Our objection
to the Magistrate's report granting
defendants' motion for summary judgment was rejected, and we filed an
appeal this quarter.
Jerry M. v. D.C.-This case deals with
conditions in the District's juvenile facilities. In February we moved for a TRO
concerning the unsafe housing of children in large dormitories in Cedar Knoll.
The parties reached a stipulation prohibiting the number of children that
could be placed in dorms and required a
higher ratio of staff to children.
Nelson v. Leeke-This case challenges
terribly overcrowded conditions in South
Carolina's major prisons. Due to
extreme overcrowding and the resulting
triple-celling at three facilities, we requested
several actions by the court and the
court-appointed monitor.
Palmigiano v. Garrahy-In the Rhode
Island state-wide prison case we received

National Prison Project
American Civil Liberties Union Foundation
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Washington, V.c. 20036
(202) 331-0500

16 SUMMER 1986

an excellent opinion on May I2 holding
that overcrowding had had an unconstitutional impact on various conditions at
two facilities. The court ordered population caps, including single-ceiling at the
new Intake Center, and required the
defendants to develop plans to cure the
deficiencies in programming,
environmental health and safety, and
medical and mental health care.
Ramos v. Lamm-This case challenges
the totality of conditions at the
Colorado State Penitentiary. On March
27, we received a favorable opinion
increasing the fee award to $1,060,000
(less the interim award of $282,000).
On April 21, the state finally agreed to
settle the claim for $960,000, less the
interim award, With payment to be made
in 30 days.
-continued from previous page.

of these things, but they can help to see
to it that they are done when such
measures must be part of the solution.
A federal judge once remarked to
me that when he was in law school he
wondered why judges did not make
more use of their equity powers in the
public interest. When at last he found
himself on the bench, he soon found out
that these powers came with burdens
that fell on him alone. Neither the
National Prison Project nor anyone else
can entirely remove these burdens from
the judge's shoulders, but they can be
lightened. There is a lot more that has
to be done-judges, litigators, and
experts must get on with doing it,

Terry D. v. Rader-This action challenges the conditions in six juvenile institutions in Oklahoma. We filed motions
for summary affirmance in the 10th Circuit in order, to obtain the uncontested
portion of our fees and costs judgment.

u.s. v.

Michigan/Knop v. JohnsonIn U.S. v. Michigan, the court's independent expe~ issued a report finding
subtantial areas of defendants' noncompliance. The court ordered defendants to explain their failure to implement their own mental health care plan
and ordered supplemental relief
regarding mental health services. In
May, the defendants were held in contempt on this issue. In Knop the plaintiffs
won several discovery motions.

enlisting help from governors, administrators, legislators, and the interested
public wherever litigation is not
enough. •

john Conrad has done extensive academic and consulting work in the field of
criminal justice. He has served as project
director and member of the board of
directors of the American justice Institute.
Mr. Conrad has held various positions in
the California Department of Corrections
during his career. He has served as chief of
research of the U.S. Bureau of Prisons and
chief of the Center for Crime Prevention
and Rehabilitation of the National Institute
for Law Enforcement and Criminal justice,
now the National Institute of justice.

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