A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 8, NO.2, SPRING 1993 • ISSN ~748-2655
~j

Moscow Prison Conference Breaks New Groyud
he International Conference on
Prison Reform in Former Totalitarian Countries was held at a
conference center about 30 miles outside ofMoscow from November 14-19,
1992. Participants camefrom a number
offormer Soviet republics, from Russia
to Kazakhstan. In addition, there were
East Europeans from Croatia, Hungary

T

and Poland, and West Europeans from
France, Switzerland, Belgium, the
Netherlands, Germany, Denmark, Sweden, Norway and the United Kingdom. A
handful camefrom the United States.
Alvin] Bronstein, executive director of
the National Prison Project, was one of
the participants. He said, "In light ofthe
economic chaos in the Russian
confederation the impact ofthis confrrence on prison reform remains to be
seen. However, the warmth and openness
ofthe Easterners and the many
friendships that developed will
result in a continuing exchange. "Afollowup conference
has already been scheduledfor
May 1993, in Kazakhstan. (Also
see sidebar, p. 20.)

Visitors were dismayed by conditions in the Russian
prison beyond this gate. Their visit was part of the
International Conference on Prison Reform in Former
Totalitarian Countries.

"You are the bait," Alex Petrov
told us as we came off the plane
at Moscow. "By inviting foreigners to this conference, we
enticed our own big names. With
you here, our authorities
couldn't refuse."
The strategy worked. The
Russian human rights activists,
coordinated by the Moscow
Helsinki Group, had got together
ministry officials and senior
prison administrators from all
over the former USSR. They had
invited doctors and advocates
with first-hand knowledge of
prison conditions, and academics involved in legislative
reform. Many of the organizers
themselves knew the Gulag from
the inside, having served sentences as political prisoners in
the years before perestroika,
and a number of their conference guests shared the same
background. This was not a
meeting where officialdom was
going to get off lightly. Indeed,

this was not a meeting that had ever happened before.
The foreign participation was the result of
collaboration with Penal Reform
International (PRI), a non-governmental
organization based in London (U.K.) which
has individual members in over 40 countries. Nearly 60 PRI members attended,
mainly from West and East Europe, and the
rest came from the U.S.
Without the foreign "bait" the organizers
almost certainly would not have achieved
their aim of assembling all the interested _
parties together. The very title of the conference, "Prison Reform in Former Totalitarian
Countries," caused annoyance in the
Ministry of the Interior. Not surprisingly,
since many of the bureaucrats managing the
criminal justice system today are those who
did the same job under the old regime.
Given the mix of former dissidents on the
one hand,and apparatchiki on the other,
the tone was remarkably free of personal
recrimination. There was no vindictiveness,
no point-scoring. The whole four days saw
an intensely serious debate which ran virtually non-stop and was still going full tilt at
the press conference on the fifth day. It was
essentially a Russian affair: the old-world
courtesies of language (first name and
patronymic as the term of address) contrasted oddly with the harsh testimony of

we've given you, push for the
money." What we are seeing
are the mechanics of reform in
action.
The new code outlaws the
deprivation of food, clothing or
bedding, or the cancellation of ,j'
visits, as prison punishments; it ".;
guarantees freedom of conscience and religion; it permits
prisoners to send complaintsJo
organizations outside the ";,.
prison administration; it
increases allowances of visits
and food parcels; it sets a minimum wage and grants convicts
a week's leave off work.
But the code has not succeeded in abolishing compulsory labor, the bedrock of the
system both under commuc:
o
nism and before. The penal
...c:
oc:
colonies therefore remain
o
~
essentially
a means of forced
--;
state production. Evidence
(;
,
,
presented at the conference
::>
shows that no one is spared.
-....
.
ou
Women with small children,
-§
...c:
invalids, tuberculosis cases
"(11 % of all prisoners), have
to put in their hours.
This prisoner, shown in the segregation block of
"Enterprise 136.2," a labor camp 70 km. north of
The convict in Russia is
Moscow, requested segregation after stealing food
well off compared with the
from other prisoners.
prisoner awaiting trial. At the
conference, former prisoners
20th century experience. We, the outsiders,
and independent witnesses described how
had come in on one chapter of a very long
the pretrial prisons, known as "investigastory.
tion wards," are so overcrowded that cells
Like everything in the former Soviet
designed for two hold up to seven.
Union, the prison system exists now in a
Prisoners have to take turns to lie down;
shifting no-man's land, between the old
lack of ventilation causes fainting. Sanitary
order and whatever new order may emerge.
arrangements are a row of stinking holes.
The notorious Kresty prison in St.
The cast of the conference rostrum was a
living demonstration of recent shifts. Sergei
Petersburg was cited. Built for 3,000 [ed.
Adamovich Kovalev, in the chair on the first
note: other reports cite 1,000], it houses
morning, is chairman of the Human Rights
6-7,000. Amass hunger strike last May
Committee of the]ussian Supreme Soviet
produced no effect, except to have the
and an influential voice in drafting legislaactivists outside who publicized it threattion. Not so long ago he was in a labor camp
ened by the "special services" (KGB). An
serving a political sentence.
approach was made to the United Nations,
who asked for more detailed information,
Refonn Code
which cannot be obtained because no one
Areformed penitentiary code has been
can get in.
introduced-it scraped through Parliament
Perhaps the most horrific account came
on the third attempt lastJune. But given the
from an advocate who described the plight of
lack of resources, asked the questioners on
juveniles. Marina Natanovna Rodman said
the floor, how would it be implemented? For
that when she visited youngsters being held
instance, how would prisoners exercise the
in the investigation wards, she found them
new right to make phone calls home, when
hungry, sick and terrorized. Under the curthe camps lack phones? Kovalev stressed that
rent law, she said, a lawyer could visit a
it is essential to get the principle established,
detainee after 24 hours. But the first day and
"to get it on paper, as a right." He turned to
night were used to extract confessions, and
two prison directors, also on the rostrum,
teenagers often complained that they had
and told them they must now "use the law
been beaten. When the trial finally took

f -

2

SPRING 1993

',.

"~

place, the lawyer was not informed.
Complaints were now possible under the law,
but she knew of only two successful outcomes when a detainee had been released.
Prison Visits

Visits to prisons by members of the conference confirmed these accounts. Members
of the party that went to one of Moscow's
two large remand prisons were amazed
that they had been allowed to see such
appalling conditions.
The party I joirred went to a labor camp
near Moscow for,}irst-time convicts.
Physical conditions were spartan, and
dysentery hit the camp last summer. But the
diet was no less varied than in current life
outside. The colonel in charge (a perestroika appointment) allowed us unrestricted access to all parts of the camp,
including the segregation block, where
Russian speakers were allowed to talk to
prisoners. Another party visited a prison
for women, and had great problems even
being allowed through the gates. Alot
depends on whomever is in charge on the
spot, now that central power has less grip.
(con't. on page 20)

Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, DC 20009
(202) 234·4830 FAX (202) 234·4890
The National Prison Project is a tax-exempt foundationfunded project of the ACLU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
judicial channels; and to 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 Notional Prison Proiect. Materials ~nd suggestions
are welcome.

The NPP JOURNAL is available on 16mm
microfilm, 35mm microfilm and 105mm
microfiche from University Microfilms
International, 300 North Zeeb Rd., Ann
Arbor, MI 48106-1346.
. THE NATIONAL PRISON PROJECT JOURNAL

I

"Infamous Punishment":
The Psychological Consequences
of Isolation
II

~

I
I

I

The NPPJOURNAL continues its indepth coverage ofsupermaximum security prisons. In the Fall 1992 issue, we
ran an overview article, "The Marionization ofAmerican Prisons, " and a
piece on Barlin.nie, the Scottish equivalent ofour supermax. It operates in a
very different mannerfrom its u.s.
counterparts with very different results.
A third article on California's Pelican
Bay State Prison, the most restrictive
prison in the country, focused on its
severe and restrictive confinement. In
the following article, University of
California psychologist Craig Haney
examines the psychological effects of
confinement in prisons like Pelican Bay.

austere. Indeed, Pelican Bay's low, windowless, slate-gray exterior gives no hin~,
to outsiders that this is a place where "
human beings live. But the barrennes~of
the prison's interior is what is most sflirtling. On each visit to this prison I have
been struck by the harsh, visual sameness
and monotony of the physical design and
the layout of these units. Architects and
corrections officials have created living

prison grounds, which are covered instead
by gray gravel stones. This is no small
accomplishment since the prison sits adjacent to the Redwood National Forest and
the surrounding landscape is lush enough
to support some of the oldest living things
on earth. Yet here is where the California
Department of Corrections has chosen to
create the most lifeless environment in
its-or any-correctional system.
When prisoners do get out of their cells
for "yard," they are released into a barren
concrete encajiement that contains no
exercise equipment, not even a ball. They
cannot see any of the surrounding landscape because of the solid concrete walls
that extend up some 20 feet around them.

-fE.

ince the discovery of the asylum, prisons have been used to isolate inmates
from the outside world, and often
from each other. As most students of the
American penitentiary know, the first real
prisons in the United States were characterized by the regimen of extreme isolation
that they imposed upon their prisoners.
Although both the Auburn and Pennsylvania models (which varied only in the
degree of isolation they imposed) eventually were abandoned, in part because of
their harmful effects upon prisoners, 1
most prison systems have retained and
employed-however sparingly-some
form of punitive solitary confinement. Yet,
because of the technological spin that they
put on institlltional design and procedure,
the new super-maximum security prisons
are unique in the modern history of American corrections. These prisons represent
the application of sophisticated, modern
technology dedicated entirely to the task of
social control, and they isolate, regulate,
and surveil more effectively than anything
that has preceded them.

S

I

~

I

The Pelican Bay SHU
The Security Housing Unit at California's
Pelican Bay State Prison is the prototype
for this marriage of technology and total
control,2 The design of the Security
Housing Unit-where well over a thousand prisoners are confined for periods of
six months to several years-is starkly
THE NATIONAL PRISON PROJECT JOURNAL

Bare concrete walls form an exercise "yard" at Pelican Bay where prisoners
engage in solitary recreation. An opaque roof covers half the yard; the wire
screen which covers the other half provides prisoners with their only view of
open sky.

environments that are devoid of social
stimulation. The atmosphere is antiseptic
and sterile; you search in vain for humanizing touches or physical traces that
human activity takes place here. The
"pods" where prisoners live are virtually
identical; there is little inside to mark
location or give prisoners a sense of place.
Prisoners who are housed inside these
units are completely isolated from the natural environment and from most of the
natural rhythms of life. SHU prisoners,
whose housing units have no windows, get
only a glimpse of natural light. One prisoner captured the feeling created here when
he told me, "When I first got here I felt
like I was underground." Prisoners at
Pelican Bay are not even permitted to see
grass, trees or shrubbery. Indeed, little or
none exists within the perimeters of the

Overhead, an opaque roof covers half the
yard; the other half, although covered with
a wire screen, provides prisoners with
their only view of the open sky. When outside conditions are not intolerably
inclement (the weather at Pelican Bay
often brings harsh cold and driving rain),
prisoners may exercise in this concrete
cage for approximately an hour-and-a-half
a day. Their movements are monitored by
video camera, watched by control officers
on overhead television screens. In the control booth, the televised images of several
inmates, each in separate exercise cages,
show them walking around and around the
perimeter of their concrete yards, like laboratory animals engaged in mindless and
repetitive activity.
Prisoners in these units endure an
unprecedented degree of involuntary,
SPRING 1993

3

enforced idleness. Put simply: prisoners
here have virtually nothing to do. Although
prisoners who can afford them are permitted to have radios and small, regulationsize televisions in their cells, there is no
activity in which they may engage. Except
for the limited exercise I have described
and showers (three times a week), there
are no prison routines that regularly take
them out of their cells. All prisoners are
"cell fed"-twice a day meals are placed
on tray slots in the cell doors to be eaten
by the prisoners inside. (Indeed, on my
first tour of the institution one guard told
me that this was the only flaw in the design
of the prison-that they had not figured
out a way to feed the prisoners "automatically," thus eliminating the need for any
contact with them.) Prisoners are not permitted to do work of any kind, and they
have no opportunities for educational or
vocational training. They are never permitted out on their tiers unless they are moving to and from showers or yard, or being
escorted-in chains and accompanied by
two baton-wielding correctional officers
per inmate-to the law library or infirmary outside the unit. Thus, with minor
and insignificant exceptions, a prisoner's
entire life is lived within the parameters of
his 80 square-foot cell, a space that is typically shared with another prisoner whose
life is similarly circumscribed.
All movement within these units is tightly
regulated and controlled, and takes place
under constant surveillance. Prisoners are
permitted to initiate little or no meaningful
behavior of their own. When they go to
shower or "yard," they do so at prescribed
times and in a prescribed manner and the
procedure is elaborate. Guards must first
unlock the padlocks on the steel doors to
their cells. Once the guards have left the
tier (they are never permitted on the tier
when an unchained prisoner is out of his
cell), the control officer opens the cell
door by remote control. The prisoner must
appear naked atthe front of the control
booth and submit to a routinized visual
strip search before going to yard and,
afterwards, before returning to his cell.
Some prisoners are embarrassed by this
public display of nudity (which takes place
not only in front of control officers and
other prisoners, but whomever else happens to be in the open area around the
outside of the control booth.) As might be
expected, many inmates forego the privilege of taking "yard" because of the humiliating procedures to which they must submit and the draconian conditions under
which they are required to exercise.
Whenever prisoners are in the presence of
another human being (except for those
4

SPRING 1993

can't even take pictures of ourselves" to
send to loved ones. 3 Their isolation from
the social world, a world to which most of
them will return, could hardly be more
complete.
The operational procedures employed
within the units themselves insure that
who have cellmates), they are placed in
even interactions with correctional staff
chains, at both their waist and ankles.,' occur infrequently and on higWy distorted,
Indeed, they are chained even before the,.y
unnatural terms. The institutional routines
are permitted to exit their cells. There are
are structured so that prisoners are within
also special holding cages in which pris,4:,
close proximity of staff only when they are
oners are often left when they are being
being fed, visually searched through the
moved from one place to another.
window of thec.qintrol booth before going
Prisoners are kept chained even during
to "yard," beit).gplaced in chains and
their classification hearings. I witnessed
escorted elsewhere within the institution.
one prisoner, who was apparently new to
There is always a physical barrier or
the process, stumble as he attempted to sit
mechanical restraint between them and
down at the start of his hearing. Because
other human beings.
he was chained with his hands behind his
The only exceptions occur for prisoners
back, the correctional counselor had to
who are double-celled. Yet double-ceiling
instruct him to "sit on the chair like it was
under these conditions hardly constitutes
a horse"-unstable, with the back of the
normal social contact. In fact, it is difficult
chair flush against his chest.
to conceptualize a more strained and perThe cells themselves are designed so that
verse form of intense and intrusive social
a perforated metal screen, instead of a
interaction. For many prisoners, this kind
door, covers the entrance to the cells. This
of forced, invasive contact becomes a
permits open, around-the-clock surveilsource of conflict and pain. They are
thrust into intimate, constant co-living with .
lance whenever guards enter the tiers. In
addition, television cameras have been
another person-typically a total stranger
placed at strategic locations inside the cell-whose entire existence is similarly and
unavoidably co-mingled with their own.
blocks and elsewhere within the prison.
Because the individual "pods" are small
Such pressurized contact can become the
(four cells on each of two floors), both
occasion for explosive violence. It also
visual and auditory surveillance are facilifails to provide any semblance of social
tated. Speakers and microphones have
"reality testing" that is intrinsic to human
been placed in each cell to permit contact
social existence. 4
The psychological significance of this
with control booth officers. Many prisoners believe that the microphones are used
level of longterm social deprivation cannot
to monitor their conversations. There is
be overstated. The destructive conselittle or no personal privacy that prisoners
quences can only be understood in terms
may maintain in these units.
of the profound importance of social contact and social context in providing an
interpretive framework for all human
Psychological Consequences
The overall level of longterm social
experience, no matter how personal and
deprivation within these units is nearly
seemingly private. Human identity formatotal and, in many ways, represents the
tion occurs by virtue of social contact with
destructive essence of this kind of confineothers. As one SHU prisoner explained: "I
ment. Men in these units are deprived of
liked to be around people. I'm happy and
human contact, touch and affection for
I enjoy people. They take that away from
years on end. They are denied the opporyou [here]. It's like we're dead. As the
tunity for contact visits of any kind; even
Catholics say, in purgatory. They've taken
attorneys and experts must interview them
away everything that might give a little purin visiting cells that prohibit contact. They
pose to your life." Moreover, when our
cannot embrace or shake hands, even with
reality is not grounded in social context,
visitors who have traveled long distances
the internal stimuli and beliefs that we
to see them. Many of these prisoners have
generate are impossible to test against the
not had visits from the outside world in
reactions of others. For this reason, the
years. They are not permitted to make
first step in any program of extreme social
phone calls except for emergencies or
influence-ranging from police interroga, tion to indoctrination and "brainwashother extraordinary circumstances. As one
prisoner told me: "Family and friends,
ing"-is to isolate the intended targets
after the years, they just start dropping off.
from others, and to create a context in
Plus, the mail here is real irregular. We
which social reality testing is controlled by
THE NATIONAL PRISON PROJECT JOURNAL

I

j

those who would shape their thoughts,
beliefs, emotions, and behavior. Most people are so disoriented by the loss of social
context that they become highly malleable,
unnaturally sensitive, and vulnerable to the
influence of those who control the environment around them. Indeed, this may be
its very purpose. As one SHU prisoner told
me: "You're going to be what the place
wants you to be or you're going to be
nothing."
Longterm confinement under these conditions has several predictable psychological consequences. Although not everyone
will manifest negative psychological effects
to the same degree, and it is difficult to
specify the point in time at which the
destructive consequences will manifest
themselves, few escape unscathed. The
norms of prison life require prisoners to
struggle to conceal weakness, to minimize
admissions of psychic damage or pain. It
is part of a prisoner ethic in which preserving dignity and autonomy, and minimizing vulnerability, is highly valued. Thus,
the early stages of these destructive
processes are often effectively concealed.
They will not be apparent to untrained or
casual observers, nor will they be revealed
to persons whom the prisoners do not
trust. But over time, the more damaging
parts of adaptation to this kind of environment begin to emerge and become more
obvious. 5
The first adaptation derives from the
totality of control that is created inside a
place like Pelican Bay. Incarceration itself
makes prisoners dependent to some
degree upon institutional routines to gUide
and organize their behavior. However, the
totality of control imposed in a place like
Pelican Bay is extreme enough to produce
a qualitatively different adaptation.
Eventually, many prisoners become entirely dependent upon the structure and routines of the institution for the control of
their behaviO,f. There are two related components to this adaptation. Some prisoners
become dependent upon the institution to
limit their behavior. That is, because their
behavior is so carefully and completely
circumscribed during their confinement in
lockup, they begin to lose the ability to set
limits for themselves. Some report becoming uncomfortable with even small
amounts of freedom because they have lost
the sense of how to behave without the
constantly enforced restrictions, tight
external structure, and totality of behavioral restraints.
Other prisoners suffer an opposite but
related reaction, caused by the same set of
circumstances. These prisoners lose the
ability to initiate behavior of any kindTHE NATIONAL PRISON PROJECT JOURNAL

to organize their own lives around activity
and purpose-because they have been
stripped of any opportunity to do so for
such prolonged periods of time. Apathy
and lethargy set in. They report being tired
all the time, despite the fact that they have
been allowed to do nothing. They find it ':!"
difficult to focus their attention, their ;,;
minds wander, they cannot concentrate or
organize thoughts or actions in a coherent
way. In extreme cases, a sense of prof9und
despair and hopelessness is created. ;';,.
The experience of total social isolation
can lead, paradoxically, to social withdrawal. That is, some prisoners in isolation draw further into themselves as a way
of adjusting to the deprivation of meaningful social contact imposed upon them.
They become uncomfortable in the course
of the little social contact they are permitted. They take steps to avoid even that-by
refusing to go to "yard," refraining from
conversation with staff, discouraging any
visits from family members or friends, and
ceasing correspondence with the outside
world. They move from being starved for
social contact to being frightened by it. Of
course, as they become increasingly unfamiliar and uncomfortable with social
interaction, they are further alienated from
others and disoriented in their presence.
The absence of social contact and social
context creates an air of unreality to one's
existence in these units. Some prisoners
act out as a way of getting a reaction from
their environment, proving to themselves
that they still exist, that they are still alive
and capable of eliciting a human
response-however hostile-from other
human beings. This is the context in which
seemingly irrational refusals of prisoners
to "cuff up" take place-which occur in
the Pelican Bay SHU with some regularity,
in spite of the knowledge that such
refusals invariably result in brutal "cell
extractions" in which they are physically
subdued, struck with a large shield and
special cell extraction baton, and likely to
be shot with a taser gun or wooden or rubber bullets before being placed in leg
irons and handcuffs. 6
In some cases, another pattern emerges.
The line between their own thought
processes and the bizarre reality around
them becomes increasingly tenuous. Social
contact grounds and anchors us; whenit is
gone, there is nothing to take its place.
Moreover, for some, the environment
around them is so painful and so painfully
impossible to make sense of, that they create their own reality, one seemingly
"crazy" but easier for them to tolerate and
make sense of. Thus, they live in world of
fantasy instead of the world of control,

surveillance, and inhumanity that has been
imposed upon them by the explicit and
conscious policies of the correctional
authorities.
For others, the deprivations, the restrictions, and the totality of control fills them
with intolerable levels of frustration.
Combined with the complete absence of
activity or meaningful outlets through
which they can vent this frustration, it can
lead to outright anger and then to rage.
This rage is a reaction against, not a justification for, t~ir oppressive confinement.
Such anger c~not be abated by intensifying the very..deprivations that have produced it. They will fight against the system
that they perceive only as haVing surrounded and oppressed them. Some will lash out

violently against the people whom they
hold responsible for the frustration and
deprivation that fills their lives. Ultimately,
the outward expression of this violent frustration is marked by its irrationality, primarily because of the way in which it leads
prisoners into courses of action that further insure their continued mistreatment.
But the levels of deprivation are so profound, and the resulting frustration so
immediate and overwhelming, that for
some this lesson is unlikely ever to be
learned. The pattern can only be broken
through drastic changes in the nature of
the environment, changes that produce
more habitable and less painful conditions
of confinement.
The magnitude and extremity of oppressive control that exists in these units helps
to explain another feature of confinement
in the Pelican Bay SHU that, in myexperience, is unique in modern American corrections. Prisoners there have repeatedly
voiced fears of physical mistreatment and
brutality on a widespread and frequent
basis. They speak of physical intimidation
and the fear of violence at the hands of
correctional officers. These concerns
extend beyond the physical intimidation
that is structured into the design of the
units themselves-the totality of restraint,
the presence of guards who are all clad in
heavy flak jackets inside the units, the use
of chains to move prisoners out of their
cells, and the constant presence of control
officers armed with assault rifles slung
across their chests as they monitor prisoners within their housing units. Beyond thiS,
SPRING 1993

5

prisoners speak of the frequency of "cell
extractions" which they describe in frightening terms. Most have witnessed extractions in which groups of correctional officers (the previously described "cell
extraction team") have entered prisoners'
cells, fired wooden or rubber bullets and
electrical tasers at prisoners, forcibly
chained and removed them from their
cells, sometimes for the slightest provocation (such as the failure to return food
trays on command). And many note that
this mistreatment may be precipitated by
prisoners whose obvious psychiatric problems preclude them from conforming to
SHU rules or responding to commands
issued by correctional officers. 7 One prisoner reported being constantly frightened
that guards were going to hurt him. The
day I interviewed him, he told me that he
had been sure the correctional staff was
"going to come get him." He stuck his
toothbrush in the door of his cell so they
couldn't come inside. He vowed "to hang
myself or stop eating [and] starve to
death" in order to get out of the SHU.
I believe that the existence of such brutality can be attributed in part to the psychology of oppression that has been created in and around this prison. Correctional
staff, themselves isolated from more
diverse and conflicting points of view that
they might encounter in more urban or
cosmopolitan environments, have been
encouraged to create their own unique
worldview at Pelican Bay. Nothing counters
the prefabricated ideology into which they
step at Pelican Bay, a prison that was designated as a place for the "worst of the
worst" even before the first prisoners ever
arrived. They work daily in an environment
whose very structure powerfully conveys
the message that these prisoners are not
human beings. There is no reciprocity to
their perverse and limited interactions with
prisoners-who are always in cages or
chains, seen tlu:ough screens or windows
or television cameras or protective helmets-and who are given no opportunities
to act like human beings. Pelican Bay has
become a massive self-fulfilling prophecy.
Violence is one mechanism with which to
accommodate to the fear inevitably generated on both sides of the bars.

Psychiatric Disorders
The psychological consequences of living in these units for long periods of time
are predictably destructive, and the
potential for these psychic stressors to
precipitate various forms of psychopathology is clear-cut. When prisoners who
are deprived of meaningful social contact
begin to shun all forms of interaction,
6

SPRING 1993

withdraw more deeply into themselves
and cease initiating social interaction,
they are in pain and require psychiatric
attention. They get little or none. 8
Prisoners who have become uncomfortable in the presence of others will be
unable to adjust to housing in a mainline
prison population, not to mention free
society. They are also at risk of developing disabling, clinical psychiatric symp~.: .
toms. Thus, numerous studies have
,',
underscored the role of social isolation::·
as a correlate of mental illness. Similarly,
when prisoners become profoundly
lethargic in the face of their monotonous,
empty existence, the potential exists for
this lethargy to shade into despondency
and, finally, to clinical depression. For
others who feel the frustration of the
totality of control more acutely, their frustration may become increasingly difficult
to control and manage. Longterm problems of impulse control may develop that
are psychiatric in nature.
This kind of environment is capable of
creating clinical syndromes in even healthy
personalities, and can be psychologically
destructive for anyone who enters and
endures it for significant periods of time.
However, prisoners who enter these places
with pre-existing psychiatric disorders suffer more acutely. The psychic pain and vulnerability that they bring into the lockup
unit may grow and fester if unattended to.
In the absence of psychiatric help, there is
nothing to keep many of these prisoners
from entering the abyss of psychosis.
Indeed, in the course of my interviews
at Pelican Bay, numerous prisoners spoke
to me about their inability to handle the
stress of SHU confinement. Some who
entered the unit with pre-existing problems could perceive that they had gotten
worse. Others had decompensated so
badly that they had no memory of ever having functioned well, or had little awareness
that their present level of functioning was
tenuous, fragile, and psychotic. More than
a few expressed concerns about what they
would do when released-either from the
SHU into mainline housing, or directly into
free society (as a number are). One prisoner who was housed in the unit that is
reserved for those who are maintained on
psychotropic medication told me that he
was sure that the guards in this unit were
putting poison in his food. He was concerned because when released (this year),
he told me "I know I won't be able to
work or be normal."
Many SHU prisoners also reported being
suicidal or self-mutilating. Anumber of
them showed me scars on their arms and
necks where they had attempted to cut

themselves. One prisoner told me matterof-factly, "I've been slicing on my arms for
years, sometimes four times a day, just to
see the blood flow." One suicidal prisoner
who is also deaf reported being cell
extracted because he was unable to hear
the correctional officers call count (or
"show skin"-a procedure used so that
staff knows a prisoner is in his cell). He
now sleeps on the floor of his cell "so that
the officers can see my skin." Another
prisoner, who has reported hearing voices
in the past and s~eing "little furry things,"
has slashed his.:¢Tists on more than one
occasion. Instead of being transferred to a
facility where he could receive mental
health treatment-since obviously none is
available at Pelican Bay-he has been
moved back and forth between the VCU
and SHU units. While in the VCU, he saw a
demon who knew his name and frequently
spoke to him. As I interviewed him, he told
me that the voices were cursing at him for
talking to me. In the course of our discussion, he was clearly distracted by these
voices and, periodically, he laughed inappropriately. One psychotic SHU prisoner
announced to me at the start of our interview that he was a "super power man"
who could not only fly, but see through
steel and hear things that were being said
about him from great distances. He had
lived in a board-and-care home and been
maintained on Thorazine before his incarceration. Although he had attempted suicide three times while at Pelican Bay, he
was confident that when he was placed
back in the mainline he would not have to
attempt to kill himself again-because he .
thought he could convince his cellmate to
do it for him. Another flagrantly psychotic
SHU prisoner talked about a miniature
implant that the Department of Corrections
had placed inside his head, connected to
their "main computer," which they were
using to control him electronically, by pro~
gramming him to say and do things that
would continually get him into trouble.
When I asked him whether or not he had
seen any of the mental health staff, he
became agitated and earnestly explained to
me that his problem was medical-the
computer implant inserted into his brainnot psychiatric. He offered to show me the
paperwork from a lawsuit he had rued protesting this unauthorized medical procedure.
When prison systems become seriously
overcrowded---'as California's is (operating now at more than 180% of capacity)psychiatric resources become increasingly
scarce and disturbed prisoners are handled poorly, if at all. Often, behavior that is
caused primarily by psychiatric disfunction
results in placement in punitive solitary
THE NATIONAL PRISON PROJECT JOURNAL

confinement, where little or no psychiatric
precautions are taken to protect or treat
them. They are transferred from one such
punitive isolation unit to another, in what
has been derisively labeled "bus therapy."9
In fact, I have come to the conclusion that
the Pelican Bay SHU has become a kind of
"dumping ground" of last resort for many
psychiatrically disturbed prisoners who
were inappropriately housed and poorly
treated-because of their psychiatric disorders-in other SHU units. Because such
prisoners were unable to manage their
disorders in these other units-in the face
of psychologically destructive conditions
of confinement and in the absence of
appropriate treatment-their continued
rules violations, whichin many cases were
the direct product of their psychiatricdisorders, have resulted in their transfer to
Pelican Bay. Thus, their placement in the
Pelican Bay SHU is all the more inappropriate because of the process by which they
got there. Their inability to adjust to the
harsh conditions that prevailed at these
other units should disqualify them for
placement in this most harsh and destructive environment, yet, the opposite appears
to be the case.
Conclusions

Although I have seen conditions elsewhere that approximate those at the
Pelican Bay SHU, and have testified about
their harmful psychological effects, I have
never seen longterm social deprivation so
totally and completely enforced. Neither
have I seen prisoner movements so completely regimented and controlled. Never
have I seen the technology of social control used to this degree to deprive captive
human beings of the opportunity to initiate meaningful activity, nor have I seen
such an array of deliberate practices
designed for the sole purpose of preventing prisoners from engaging in any semblance of normal social intercourse. The
technologic'al structure of this environment adds to its impersonality and
anonymity. Prisoners interact with their
captors over microphones, in chains or
through thick windows, peering into the
shields that hide the faces of cell extraction teams as they move in coordinated
violence. It is axiomatic among those who
study human behavior that social connectedness and social support are the prerequisites to longterm social adjustment. Yet,
persons who have been wrenched from a
human community of any kind risk
profound and chronic alienation and
asociality.
Acentury and a half ago, social commentators like Dickens and de Tocqueville
THE NATIONAL PRISON PROJECT JOURNAL

marveled at the willingness of American
society to incarcerate its least favored citizens in "despotic" places of solitary confinement. 10 De Tocqueville understood that
complete isolation from others "produces
a deeper effect on the soul of the convict,"
an effect that he worried might prove disT

abling when the convict was released into
free society. Although he admired the
power that American penitentiaries wielded over prisoners, he did not have the
tools to measure their longterm effects nor
the benefit of more than a hundred years
of experience and humane intelligence
that has led us away from these destructive
interventions. Ignoring all of this, places
like Pelican Bay appear to have brought us
full circle. And then some. II

Craig Haney is aprofessor ofpsychology
and director ofthe program in legal studies at the University ofCalifornia at Santa
Cruz. He received a Ph.D. in Social Psychology and alD. degreefrom Stanford
University. He has studied and written
extensively on the psychological efftcts of
living and working in maximum security
prisons, as well as the backgrounds and.
social histories ofpersons accused ofviolent crimes. Prof Haney has testified in
numerous state andfederal courts about
conditions ofconfinement.
1 In words it appears to have long since forgotten,
the United States Supreme Court, more than a century ago, characterized solitary confinement as an
'infamous punishment' and provided this
explanation for its abandonment: '[E]xperience
demonstrated that there were serious objections to
it. Aconsiderable number of the prisoners fell, after
even a short confinement, into a semi-fatuous condition, from which it was next to impossible to
arouse them, and others became Violently insane;
others still, committed suicide; while those who
stood the ordeal better were not generally
reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service'... [I] tis \vithin the memory of many persons
interested in prison discipline that some 30 or 40
years ago the whole subject attracted the general
public attention, and its main feature of solitary
confinement was found to be too severe.' In re
Medley, 134 U.S. 160, 168 (1890).
2 Its predecessor, the federal prison at Marion,
Illinois, is now more than 25 years old and a technological generation behind Pelican Bay. Although
many of the same oppreSSive conditions and

restrictive procedures are approximated at
Marion, these comments are focused on Pelican
Bay, where my observations and interviews are
more recent and where conditions are more severe
and extreme. In addition to some of the descriptive
comments that follow, conditions at the Pelican
Bay SHU have been described in Elvin, J.
"Isolation, Excessive Force Under Attack at
California's Supermax," NPPJOURNAL, Vol. 7, No.
4, (1992), and White, 1. "Inside the Alcatraz of the
'90s," California Lawyer 42-48 (1992). The
unique nature of this environment has also generated some media attention. E.g., Hentoff, N.,
"Buried Alive in American Prisons," The
Washington Po~t, January 9, 1993; Mintz, H., "Is
Pelican Bay Too~ough?" 182 The Recorder, p.1,
September 19,-J991; Roemer, J "High-Tech
Deprivation,':..Sanjose Mercury News, June 7,
1992; Ross, J "High-tech dungeon," The Bay
Guardian 15-17, (1992). The creation of such a
unit in California is particularly unfortunate in light
of fully 20 years of federal litigation over conditions
of confinement in the "lockup" units in four of the
state's maximum security prisons (Deuel Vocational
Institution, Folsom, San Quentin, and Soledad). E.g.,
Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal.
1976). In a lengthy evidentiary hearing conducted
before Judge Stanley Weigel, the state's attorneys and
corrections officials were present during expert testimony from numerous witnesses concerning the
harmful effects of the punitive solitary confinement
they were imposing upon prisoners in these units.
Except for some disagreement offered up by
Departmeut of Corrections employees, this testimony
went unanswered and unrebutted. Toussaint v.
Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983), affd
in part Toussaint v. Yockey, 722 F.2d 1490 (9th
Cir. 1984). Only a few years after this hearing, and
while a federal monitor was still in place to oversee
the conditions in these other units, the Department of
Corrections began construction of Pelican Bay. In
apparent deliberate indifference to this extensive
record, and seemingly without seeking any outside
opinions on the psychological consequences of housing prisoners in a unit like the one they intended to
create or engaging in public debate over the wisdom
of such a project, they proceeded to commit over
$200 million in state funds to construct a prison
whose conditions were in many ways worse than
those at the other prisons, whose harmful effect had
been litigated over the preceding decade.
3 Most corrections experts understand the significance of maintaining social connectedness and
social ties for longterm adjustment, in and out of
prison. See, e.g., Schafer, N. "Prison Visiting: Is It
Time to Review the Rules?" Federal Probation 25-30
(1989). This simple lesson has been completely
ignored at Pelican Bay.
4 Indeed, in my opinion, double-ceiling in Security
Housing Units like those at Pelican Bay constitutes a
clear form of overcrowding. As such, it can be
expected to produce its own, independently harmful
effects, as the literature on the negative consequences of overcrowding attests.
5 Although not extensive, the literature on the negative psychological effects of solitary confinement and
related situations is useful in interpreting contemporary observations and interview data from prisoners
placed in punitive isolation like Pelican Bay. See,
e.g., Heron, W. "The Pathology of Boredom,"
Scientific American, 196 (1957); Burney, C.
"Solitary Confinement," London: Macmillan
(1961); Cormier, B., & Wiiliams, P. "Excessive
(con't. on page 21)
SPRING 1993

7

A PROJECT OF THE AMERICAN CIVllllBERTIE~ UNION FOUNDATION, INC.
VOl. 8, NO.2, SPRING 1993 • ISSN 0748-2655

Highlights of Most
Important Cases
The due process theory of "liberty interests"
created by statute or regulation has by now
surpassed Eleventh Amendment interpretation
as the most obscure legal doctrine commonly
encountered by prison litigators. Several
recent cases illustrate the clear contradictions
emerging from the murk in the interpretation
of the liberty interests doctrine-contradictions that find their source in the decisions of
the United States Supreme Court.
The origins of the problem are easy to
state. Once upon a time, due process law
looked simple. A"grievous loss" could only
be imposed in a manner consistent with "fundamental fairness." SeeJoint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S.
123, 161 (1951) (Frankfurter, J., concurring). However, the civil rights revolution of
the late 1960s and early 1970s resulted in a
huge increase in citizens' challenges to government action. Not surprisingly, these
demands from below prompted a search for
limits among society's power-holders, including the courts. Insofar as the challenges took
the form of litigation alleging the denial of
due process, the judicial search for limits
focused on the language of the Due Process
Clause, which applies only to deprivations of
"life, liberty, or property." The definition of
these terms has preoccupied the courts for
two decades.
The first big step in the domestication of
due process involved property. Auniversity
professor argued that his job constituted
property and that his discharge without procedural protections deprived him of that
property without due process. The Supreme
Court rej ected his claim, stating:
To have a property interest in a
benefit, a person clearly must have
more than an abstract need or desire
for it. He must have more than a unilateral expectation ofit. He must,
8 SPRING 1993

instead, have a legitimate claim of
entitlement to it. It is apurpose ofthe
ancient institution ofproperty to protect those claims upon which people
rely in their daily lives, reliance that
must not be arbitrarily undermined.
Board ofRegents v. Roth, 408 U.S. 564, 577
(1972). This formulation relied heavily on
the Court's earlier decision in Goldberg v.
Kelly, 397 U.S. 254, 262 and n.8 (1970), that
welfare benefits were protected by due
process because they were "a matter of statutory entitlement" for persons eligible to
receive them, and therefore amounted to
property.
Two years later the Court was presented
with the question whether prisoners are entitled to due process in disciplinary proceedings involVing the deprivation of statutory
good time. It held:
... [Tlhe State having created the
right to good time and itselfrecognizing that its deprivation is a sanction authorizedfor major misconduct, the prisoner's interest has real
substance and is sufficiently
embraced within Fourteenth Amendment 'liberty' to entitle him to those
minimum procedures appropriate
under the circumstances....
This analysis as to liberty parallels
the accepted due process analysis as
to property....
Wolffv. McDonnell, 418 U.S. 539, 557 (1974).
For prisoners, this focus on state-created
rights very quickly became a near-exclusive
focus. In Meachum v. Fano, 427 U.S. 215
(1976), the Court refused to apply due
process protections to transfers between prisons of different security levels. In doing so it
broadly rejected the notion of degrees of protected liberty within the context of penal confinement, holding that a criminal conviction
"sufficiently extinguishers] the [prisoner's]
liberty interest to empower the State to
confine him in any of its prisons" and
to subject the prisoner to any treatment that
is "within the normal limits or range of custody which the conviction has authorized
the State to impose." 427 U.S. at 224-25
(emphasis in original).

"

In Hewitt v. H.elms, 459 U.S. 460 (1983),
the Court held thii placement in administrative segregation; Jike transfer, implicates no
liberty interest of prisoners unless such an
interest is created by statute or regulation. It
also articulated a method for determining
whether statutes and regulations have created
a liberty interest: "the repeated use of explicitly mandatory language in connection with
requiring specific substantive predicates
demands a conclusion that the State has created a protected liberty interest." 459 U.S. at
472. "Substantive predicates" are standards
or conditions that are used by officials in
making decisions. Language is "mandatory" if
it links a particular outcome or decision with _
a substantive predicate in a way that limits the
discretion of the decision-maker.
In Hewitt, the "substantive predicates"
consisted of regulatory provisions authorizing
administrative segregation only to serve "the
need for control" or in case of "the threat of
a serious disturbance." The regulations provided that segregation "may" be imposed
under those circumstances, a phrase the
Court reasonably interpreted as meaning that
segregation "will not occur absent [the] substantive predicates...." 459 U.S. at 471-72 and
n.6 (emphasis supplied). Citing this requirement as well as certain procedural requirements of the regulations, the Court stated that
Pennsylvania had "used language of an
unmistakably mandatory character." Id.
So far, clear enough, whatever one may
think of this abstract and mechanical gloss on
a "broad and majestic" word like "liberty."
Board ofRegents v. Roth, 408 U.S. at 571.
The fog rolled in several years later with
Kentucky Dept. ofCorrections v. Thompson,
490 U.S. 454 (1989), which presented the
question whether state prison visiting regulations created a liberty interest in avoiding the
suspension of visits. The Court held that they
did not. Although the regulations contained
substantive predicates stating the circumstances that justify excluding visitors, the
Court found that they lacked the necessary
mandatory language. The regulations "stop
short of requiring that a particular result is to
be reached upon a finding that the substantive
predicates are met.. ..Visitors may be excludTHE NATIONAL PRISON PROJECT JOURNAL

ed if they fall within one of the described categories, ...but they need not be. Nor need visitors fall within one of the described categories in order to be excluded." 490 u.s. at
464 (emphasis in original).
On its face, Thompson appears irreconcilable with Hewitt v. Helms, in which the relevant regulation provided that inmates "may"
be placed in administrative segregation if
officials found that one of the required substantive predicates was present, and Vitek v.
Jones, 445 U.S. 480, 483 n.l (1980), which
found a liberty interest in a statute providing
that a prisoner "may" be transferred to a
mental hospital if certain medical findings
have been made. Justice Marshall, dissenting
in Thompson, squarely stated, "If the use of
the word 'may' could not defeat a liberty
interest in Hewitt or Vitek, I fail to see how
it could do so here." 490 u.s. at 475.
The restrictions in Hewitt and Vitek can be
described as "one-way" limits on discretion,
since they forbid the liberty deprivation if the
substantive predicates are absent, but do not
require it if they are present. By contrast,
Thompson's "need not" language suggests on
its face that a "two-way" limit on discretion is
required to create a liberty interest. That is,
either the presence or the absence of the
substantive predicates must dictate the action
taken by the official.
This reading of Thompson amounts to a
significant narrowing of the due process
rights both of prisoners and of nonprisoners
who rely on statutes or regulations for their
claim of a liberty interest. Under this view,
statutes or regulations not only must limit
officials' discretion; they must eliminate it
entirely.
This is exactly the position taken by some
courts. In Russ v. Young, 895 F.2d 1149,
1153 (7th Cir. 1990), the court held that regulations prOViding that a prisoner "may" be
placed in "temporary lockup" only if one of
five specified conditions is found to exist did
not create a liberty interest, despite the close
similarity of.the regulations to those in
Hewitt. Similarly, in Burgin v. Nix, 899 F.2d
733, 734-35 (8th Cir. 1990) (per curiam), a
regulation provided that "incorrigible"
inmates could be served sacked meals "in
some cases" with the warden's approval. The
definition of "incorrigible" is rather explicit,
and the plain import of the regulation is that
sacked meals will not be served to inmates
who do not fit the definition. Again, despite
the parallel to Hewitt, the regulation was
held not to create a liberty interest.
Other courts have rejected this view and
reaffirmed that a one-way limit on discretion
can create a liberty interest. In Smith v.
Shettle, 946 F.2d 1250 (7th Cir. 1991), an
administrative segregation case, Judge Posner
referred to Thompson's discussion of
THE NATIONAL PRISON PROJECT JOURNAL

mandatory language as "dicta," and dismissed the conclusion of Russ v. Young as a
"suggestion" that "a statute which permits
but does not require administrative segregation or some other deprivation" fails to create a liberty interest. Judge Posner declared:
It... makes no difference... that the ,'j
statute does not require but only per- ,~;
mits segregation-most statutes leave
discretion to the persons charged w;ith
their enforcement rather than commanding them to enforce the statd~
to the hilt-this is the famous "prosecutorial discretion.... "
946 F.2d at 1253 (emphasis in original).
Judge Posner's view was echoed in
Mendoza v. Blodgett, 960 F.2d 1425 (9th
Cir. 1992), cert. denied, 113 S.Ct. 1005 and
113 S.Ct. 1027 (1993). There, the court
addressed a prison procedure called "Feces
Watch" (no doubt a prized assignment among
correctional staff), and found a liberty interest in regulations authorizing it only upon a
determination that there is reasonable suspicion that the prisoner is secreting contraband. The court stated:
The defendants mistakenly focus
upon the question whether the superintendent has discretion not to place
a prisoner on dry cell watch even
though he may have reasonable suspicion that the prisoner has secreted
contraband. The relevant question is
whether the superintendent has discretion to fail to follow dry cell watch
procedures once he determines to
place a prisoner on a watch.
960 F.2d at 1429 (emphasis in original).
Although Kentucky Dept. ofCorrections v.
Thompson was cited in the opinion, the
court did not directly address the view that
Thompson requires a two-way limit on discretion in order for a liberty interest to be
recognized.
The most explicit review of the tension
between Thompson and Hewitt v. Helms
appears in Layton v. Brewer, 953 F.2d 839
(3rd Cir. 1992), which finds a liberty interest
in regulations governing placement in the
Management Control Units of the New Jersey
prison system. As in Mendoza, the defendants
argued that under Thompson, the existence
of discretion not to impose a liberty deprivation if the substantive predicates are found
precludes a finding of a liberty interest.
The Layton court, unlike Mendoza or
Smith v. Shettle, addressed the Thompson
language directly. As noted above, Thompson
states that the regulations:
stop short ofrequiring that a particular result is to be reached upon a
finding that the substantive predicates are met.... Visitors may be
excluded if they fall within one of

the described categories, ... but they
need not be. Nor need visitors fall
within one ofthe described categories in order to be excluded.
490 U.S. at 464 (emphasis in original).
It is the second of these sentences-the
one containing the "need not" languagethat supports the defendants' argument that·
the existence of any discretion defeats a liberty interest. However, Layton focuses
instead on the third sentence, and it states
that the key to the Thompson holding is that
the Kentucky~egulations permitted exclusion
of visitors b~d on the listed reasons "'but
not limitedJb' them." 953 F.2d 848. That is,
if a statute or regulation lists substantive
predicates, but does not make them the
exclusive basis for the liberty deprivation at
issue, it does not limit officials' discretion
sufficiently to create a liberty interest.
Accord, Kellas v. Lane, 923 F.2d 492,495
and n.2 (7th Cir. 1990) (criteria that "among
other factors, may" justify segregation did not
create a liberty interest).
Having declared this issue of exclusivity to
be the focus of the Thompson holding, the
Layton court turned to the issue of one-way
versus two-way limits on dis~retion. It stated,
"Some language in Thompson can arguably
be read to suggest that to create a liberty
interest the statute must not only provide for
substantive predicates which must be met in
order for the deprivation to occur, but that
once they are met, the outcome must then be
mandated so as to eliminate all official discretion." 953 F.2d at 848-49. However, it
asserted that Thompson's requirement that
the statute or regulation must "mandat[e] the
outcome to be reached" if the substantive
predicates exist means only "that the statutes
must force the decision-maker to use the listed criteria as the only reasons for depriVing
the prisoner of the liberty interest in question." 953 F.2d at 849.
This interpretation robs Thompson's "need
not" language of any significance, ordinarily
an unsatisfactory result. But the court points
out that Thompson contains other language
supporting the Hewitt approach of "determining whether an inmate may [not 'must']
be deprived of the particular interest in question." Layton, 953 !,,-2d at 849 n.15, citing
Thompson, 490 U.S. at 464 n.4. Moreover,
any other interpretation requires an even
more unsatisfactory result: the conclusion
that Thompson silently overruled Hewitt v.
Helms and Vitek v. Jones while citing both
with apparent approval.
This clear conflict among circuits in the
interpretation of an important Supreme Court
decision must ultimately be resolved by the
Supreme Court itself. However, no resolution
is in sight; the Court denied certiorari in
Mendoza v. Blodgett.
SPRING 1993

9

There is an even more fundamental contradiction in the liberty interest doctrine.
The statutes and regulations discussed up
to this point have been those that limit official
discretion in a contingent fashion---,.-"if X...,
then Y," as one court put it. Smith v. Shettle,
946 F.2d at 1253. If a liberty interest is found
to exist, the task of due process analysis is to
determine what measures are necessary to
ensure a fair and reliable decision as to the
existence of "X." However, in many statutes
and regulations, official discretion is limited
in absolute, rather than contingent, language.
In Shettle's terms, such regulations require
"Y, period." In Hewitt's language, they have
"mandatory language" but no "substantive
predicates."
For example, in Domegan v. Fair, 859 F.2d
1059 (1st Cir. 1988), state regulations provided that segregated inmates "shall" be provided with regular meals, electricity, and
water. No exceptions were allowed. The court
held that the regulation created a liberty
interest in avoiding having one's electricity or
water turned off and in receiving the same
meals as other prisoners. There is now a
small family of cases finding liberty interests
in such noncontingent statutes and regulations. See, e.g. ,jackson v. Cain, 864 F.2d
1235, 1250-51 (5th Cir. 1989) (limit on
punitive segregation time); Williams v. Lane,
85 f F.2d 867, 880-81 (7th Cir. 1988) (regulations providing for equal housing and program opportunities for protective custody
inmates), cert. denied, 488 U.S. 1047
(1989); Madden v. Kemna, 739 F.Supp.
1358, 1363 (W.D.Mo. 1990) (regulation
requiring "substantial equality" of privileges
for protective custody inmates); Nicoletti v.
Brown, 740 F.Supp. 1268, 1284-85
(N.D.Ohio 1987) (statutory standards for
institutions for the developmentally disabled);
and Morgan v. District ofColumbia, 647
F.Supp. 694, 697 (D.D.C. 1986) (limit on segregation time).
The results of these cases are absolutely
consistent with tb,.e founding axiom of the liberty interest doctrine: that limits on official
discretion give rise to a "legitimate claim of
entitlement" of the kind "upon which people
rely in their daily lives," Board ofRegents v.
Roth, 408 U.S. at 561-a concept conceived
in property but qUickly extended to liberty.
Woljfv. McDonnell, 418 U.S. at 557. The
solidest of all limits on discretion is the one
that removes discretion entirely by forbidding
officials to deprive an individual of an interest
under any circumstances.
At least one court has vigorously rejected
the approach of Domegan and similar cases.
In Meis v. Gunter, 906 F.2d 364 (8th Cir.
1990), the plaintiff argued that a statute providing that prisoners shall be informed of
prison rules and policies created a liberty
10

SPRING 1993

interest in being provided on request with
those rules and policies. The court responded:
... [T]his is not the kind ofstate
statute that would create a liberty
interest as that term has come to be
used in Fourteenth Amendmentjurisprudence. The terms liberty interest
andproperty interest are used in the
context ofprocedural-due processclaims.... The statute quoted above
certainly uses mandatory language,
but it does not create a certain right
or entitlement subject to specified
factual findings....Instead, the state
statute required unconditionally that
information with respect to the programs in question be given to all
committedpersons....
This is the language ofsubstance,
not procedure, and the concepts of
liberty and property interests are, as
we have noted, useful solely in the
context ofprocedural due
process.... [To hold otherwise] would
be holding, in effect, every state
statute which imposes a mandatory
duty, or creates a legal right, is constitutional in nature, and the violation ofevery such statute would be a
violation ofthe Due Process Clause
ofthe Fourteenth Amendment. This
is emphatically not the law....
906 F.2d at 348.
Meis's claim that the concepts of liberty
and property interest are "useful solely in the
context of procedural due process" trivializes
the labor the Supreme Court has put into
developing them. They clearly are not flags of
analytical convenience to be raised and lowered at will. Rather, they reflect a systematic
effort to define the central terms in the Due
Process Clause. Liberty and property do not
change their natures depending on whether
the plaintiff is asserting a procedural or a
substantive claim, DeTomaso v. McGinnis,
970 F.2d 211,213-14 (7th Cir. 1992);
Nicoletti v. Brown, 740 F.Supp. at 1284-86,
and their'basic definitions cannot be invoked
for one purpose and then abandoned when
they lead to unsettling conclusions.
Yet Meis correctly recognizes the pitfalls of
acknowledging noncontingent liberty interests. If there is no contingency, there is nothing to have a hearing about, and the usual
inquiry as to the "process due" is irrelevant.
What, then, does due process require? The
only logical answer is that it requires compliance with the statute or regulation.
This result, as Meis recognizes, amounts to
saying that violations of state law are ipso
facto violations of the federal Constitution
and that due process categorically reqUires
official agencies to follow their own regulations. See Nicoletti v. Brown, 740 F.Supp. at

1286-87 (official's failure to perform a
mandatory, nondiscretionary duty is arbitrary
and denies substantive due process). Both
propositions fly in the face of two decades of
effort by the Supreme Court to restrict the
scope of constitutionally protected interests
and to distinguish sharply between the interests protected by the federal Constitution and
by state law. See, e.g., United States v.
Caceres, 440 U.S. 741, 752-53 (1979)
(restricting due process claims based on
agency departures from regulations); Paul v.
Davis, 424 U.S. 6~, 701 (1976) (cautioning
that the Constitutio.n must not become a "font
of tort law"). Bqfthey are difficult to refute
without also repudiating or ignoring the most
basic foundation of the liberty interest doctrine.

Other Cases
Worth Noting
u.s. COURT OF APPEALS
Access to

Courts~uveniles

John L. v. Adams, 969 F.2d 228 (6th Cir.
1992). The right of access to courts has its
sources in the Due Process Clause, the Equal
Protection Clause, the Privileges and
Immunities Clause, and the First Amendment
right to petition for a redress of grievances
(231-32). The right extends to incarcerated
juveniles. Despite the different treatment of
adults and juveniles in the criminal justice
system, "the stigma of being found to have
violated the law and the resulting incarceration are the key similarities between juveniles
and adults that make it logical for juveniles to
be entitled to the right of access to courts."
(233)
The court "read[s] Bounds as extending
the right of access only to civil rights actions
that are related to prisoners' incarceration"
(234), and defendants may limit their reimbursement of contract attorneys accordingly.
Nor must the state affirmatively assist prisoners with claims concerning state law education and treatment issues. With respect to
state law civil actions, defendants need not
provide "affirmative assistance" but need only
refrain from imposing barriers or impediments to court access (235-37).

Protection from Inmate Assault
Swofford v. Mandrell, 969 F.2d 547 (7th
Cir. 1992). The plaintiff was arrested for
aggravated sexual assault and placed in a jail
holding cell with other inmates, who beat
him, urinated on him, and sodomized him
with a broom handle. No one responded to
his screams for help for eight hours.
At 549:
THE NATIONAL PRISON PROJECT JOURNAL

The due process clause protects
pretrial detainees from deliberate
exposure to violence andfrom the
failure to protect when prison officials learn ofa strong likelihood that
a prisoner will be assaulted. ... Our
recent decisions have held that a due
process violation requires "deliberate indifference" to or "reckless disregard" ofthe detainee's right to be
protectedfrom harm.: ..A detainee
must show that the state actor knew
ofthe risk or "that the risk ofviolence was so substantial or pervasive
that the defendants' knowledge could
be inferred." [Citations omitted]
The plaintiff's allegations state a claim. At
549:
... The facts themselves-including
the failure to inspect the cellfor over
eight hours despite Swofford's
screams, the accessibility ofa
makeshift weapon in the cell and the
placement ofSwofford into a crowded
and dangerous population, given the
charge against him-are indeed quite
shocking, and couldgive rise to an
inference ofknowledge on the part of
the defendant.
Assuming it was necessary to plead the
defendant's state of mind, the allegation that
the sheriff "had to know" of the danger was
sufficient. Violations of state jail standards
and internal and state tool control regulations, though they may not have denied due
process themselves, support a conclusion of
recklessness or deliberate indifference.
The fact that the plaintiff had not previously
reported being attacked or threatened did not
defeat the claim. At 551: "... [W]hen prison
officials themselves actively and knowingly
(or recklessly) place a detainee in a particular situation that is dangerous, then such a
report becomes superfluous."
Procedural Due ProcessDisciplinar¥ Proceedings,
Administrative Segregation
Brown-El v. Delo, 969 F.2d 644 (8th Cir.
1992). The plaintiff was convicted of several
minor disciplinary violations; two months
later, after no further misconduct, he was
placed in administrative segregation based
only on the disciplinary violations. This
sequence of events supported an inference
that he was segregated improperly for punitive reasons without a Wo(ffhearing.
Appointment of Counsel
Rayes v. Johnson, 969 F.2d 700 (8th Cir.
1992). The plaintiff's court-appointed attorney withdrew with permission; the court gave
the plaintiff 60 days to retain a lawyer, which
he was unable to do; the district court
THE NATIONAL PRISON PROJECT JOURNAL

refused his two requests for substitute counsel. This refusal was an abuse of discretion.
The plaintiff, as an "adjustment center"
inmate, lacked ready access to a law library,
did not understand his rights to obtain
records and to seek discovery; he was unabl~
to articulate his claims against all defendani~;
the case turned on conflicting testimony. The'
plaintiff had also attempted unsuccessfully to
retain an attorney.
Procedural Due Process.;,.
Disciplinary Proceedings
Qualified Immunity
Zavaro v. Coughlin, 970 F.2d 1148 (2nd
Cir. 1992). The plaintiff was convicted of participating in a violent disturbance based on
reports that "every inmate in the messhall"
participated and on confidential information
that was not corroborated in any fashion. The
district court granted summary judgment for
the plaintiff against the hearing officer based
on the lack of any reliable evidence to support the conviction.
The statements that "every inmate" in a
group of 100 participated, coming from officers who were being assaulted at the time,
are so "blatantly implausible" that they do not
constitute "soine evidence" of a particular
inmate's guilt.
Federal Officials and Prisons!
Searches-Person-Arrestees!
Qualified Immunity
Act UP! Portland v. Bagley, 971 F.2d 298
(9th Cir. 1992). The plaintiffs were arrested
at a demonstration and strip searched by U.S.
Marshals. The district court denied the defendants' motion for summary judgment based
on qualified immunity.
The district court correctly understood
that it was clearly established that reasonable suspicion of contraband is required in
order to justify strip searching arrestees
accused of minor offenses, and that strip
searches must be conducted in a reasonable
manner that respects arrestees' privacy
interests. However, the district court should
also have determined whether a reasonable
officer could have believed his conduct was
proper under this established law. Previous
cases holding that this question is for the
jury were overruled by the Supreme Court in
Hunter v. Bryant.
Suicide PreventionlPersonal
Involvement and Supervisory Liability
Gordon v. Kidd, 971 F.2d 1087 (4th Cir.
1992). The decedent Was arrested, drunk,
after threatening to kill himself and then
threatening police officers. He had a history
of alcohol abuse, mental illness, and depression. He hanged himself in jail that night.
It is clearly established that the deliberate

indifference standard applies to jail suicide
cases; that under the standard officials are
not liable unless they had prior knowledge of
the prisoner's suicidal tendenCies; and that
there is no duty to screen detainees for suicidal tendencies without such knowledge.
An officer who was told of the suicide risk
but failed to make a note of it, call the jail
nurse to screen the decedent, or tell anyone
else about the risk, could be found deliberately indifferent. The officer was not entitled
to qualified immunity since the law was clearly established ihd there were no extraordinary circumsra,nces justifying a belief that his
conduct was.-legal.
Grievances and Complaints
about Prison
Wolfel v. Morris, 972 F.2d 712 (8th Cir.
1992). The plaintiffs were disciplined for circulating a petition under a rule prohibiting
group organizing activities without prior
approval by prison authorities.
The group organizing rule was vague as
applied to the plaintiffs, since prisoners had
preViously been allowed to circulate petitions.
Although the degree of specificity required in
prison regulations is less than that required
in other contexts, these plaintiffs did not have
fair warning that their actions were prohibited.
The district court's order expunging the disciplinary convictions is affirmed. However, defendants are entitled to qualified immunity from
damages. They were relying on published and
facially valid regulations, and the court cannot
say that no reasonable official could have
thought that the regulation was properly
applied.
Use of ForcelEvidentiary Questions
Robinson v. City ofSt. Charles, Mo., 972
F.2d 974 (8th Cir. 1992). Police officers' personnel files were not admissible in a use of
force case to show that they acted maliciously
and sadistically because the Fourth Amendment
standard is one of objective reasonableness
and their state of mind is not relevant.
Qualified Immunity
Rainey v. Conerley, 973 F.2d 321 (4th Cir.
1992). The defendant officer was not entitled
to qualified immunity in a use of force case.
Although the question is whether a reasonable officer could have believed his conduct
was lawful based on his perception of the
facts, this defendant's testimony was generally
inconsistent with his argument as to what his
perceptions were.
It was reversible error for the trial judge to
refuse to ask members of the jury panel "whether
they would tend to credit the testimony of a law
enforcement official over that of a prisoner, simply because of their respective positions." (325)
SPRING 1993

11

Suicide Prevention/Municipalities
Rhyne v. Henderson County, 973 F.2d 386
(5th Cif. 1992). The mother of a detainee
who committed suicide in jail had standing to
recover for her own injuries arising from her
son's wrongful death. State law providing for
such claims is incorporated into § 1983 by
§ 1988. There is a conflict among circuits on
this point.
At 391:
...Pre-trial detainees m'e entitled to
a greater degree ofmedical care than
convicted inmates. They must be provided with "reasonable medical care,
unless the failure to supply it is reasonably related to a legitimate governmental objective." (Citation omitted]

Heating and Ventilation
Gordon v. Faber, 973 F.2d 686 (8th Cir.
1992). Prisoners who were reqUired to go
outside into exercise pens during sub-freezing, windy weather, for periods of an hour to
an hour and 45 minutes, while their living
quarters were searched, and who were
denied hats and gloves even though these
were readily available, were found to have
been subjected to "extreme" deprivations
through deliberate indifference, thereby
establishing both elements of their Eighth
Amendment claim. These findings were not
clearly erroneous.

Summary JudgmentlUse of
ForcelProtection from Inmate
AssaultlPro Se Litigation
Northingtonv.Jackson, 973 F.2d 1518
(lOth Cir. 1992). The Tenth Circuit's procedure for determining whether pro se prisoners' complaints are frivolous, under which
prison officials' report and investigation is
treated as an affidavit, is not intended to
resolve material factual issues; the report's
findings are not to be accepted if the prisoner
presents conflicting evidence. The same rules
apply to a telephonic hearing. The court
should not have dismissed the case based on
a telephonic hearing without complying with
the notice and response requirements of the
summary judgment rule.
An allegation that jail officials put a gun to
the plaintiff's head while he was on his way to
his work release assignment, threatened to
kill him, and returned him to the jail and
forced him to entrap another member of the
jail staff was not fantastic or delusional. The
fact that the plaintiff may have engaged in
other fantastic or delusional behavior during
a telephonic conference (I.e., trying to communicate with a ghost) does not render his
legal claim frivolous, The allegation that a
. defendant put a gun to his head and threatened to kill him stated an Eighth Amendment
claim for excessive force; such conduct "is
12 SPRING 1993

not per se de minimis and...the ensuing psychological injury may constitute pain under
the Eighth Amendment excessive force standard." (l524)

Municipalities
Walker v. City ofNew York, 974 F.2d 295
(2nd Cif. 1992). At 297-98:
... (W]e discern three requirements
that must be met before a municipality'sfailure to train or supervise
constitutes deliberate indifference
to the constitutional rights ofcitizens. First, the plaintiffmust show
that a policymaker knows "to a
moral certainty" that her employees
will confront a given situation....
Second, the plaintiffmust show
that the situation either presents the
employee with a difficult choice of
the sort that training or supervision
will make less difficult or that there
is a history ofemployees mishandling the situation....
Finally, the plaintiffmust show
that the wrong choice by the city
employee willfrequently cause the
deprivation ofa citizen's constitutional rights....

Hazardous Substances and
Conditions
Hunt v. Reynolds, 974 F.2d 734 (6th Cif.
1992). At 735:
The circuits are in accord that
mere exposure to Environmental
Tobacco Smoke ("ETS"), without
more, does not constitute a deprivation ofa prisoner's Eighth
Amendment rights.... However, those
circuits that have addressed the
question have accepted the possibility that a prisoner may be able to
show a medical need to be placed
with a non-smoking cellmate that is
sufficiently serious to implicate the
Eighth Amendment.
At 736: "Thus we will adhere to the position,
adopted by every circuit to address the issue,
that the Eighth Amendment's objective component is violated by forcing a prisoner with
a serious medical need for a smoke-free environment to share his cell with an inmate who
smokes." The district court should consider
whether the plaintiffs in this case (one of
whom has pulmonary disease, heart disease,
and a peptic ulcer) have such needs.

one defendant only in the caption, since there
were allegations of deliberate indifference by
"the entire medical department" (which
included this defendant) and specific allegations against the defendant were contained in
the plaintiff's response to the summary judgment motion. Pro se complaints may not be
dismissed for failure to state a claim without
giving the plaintiff notice of the deficiencies
and an opportunity to amend.
The district court should not have dismissed a claim against a defendant whose
name was misspell~d on the ground that "no
such person exists)' He clearly existed, an
attorney appeared on his behalf, and a pro se
prisoner's inability to spell his name correctly should not lead to dismissal. The plaintiff
.should have been provided an opportunity to
remedy this defect in the complaint also.
The plaintiff showed "good cause" for failing to serve the misspelled defendant within
120 days. Simple negligence ordinarily is not
an excuse, but a pro se litigant should be
provided more latitude-"especialry when
that litigant is incarcerated" (l058, emphasis
supplied). The court also notes that the
plaintiff provided detailed instructions for service, that prison officials or the Marshals were
at fault, and that the defendant was represented by counsel and suffered no prejudice.
At 1059-60:
A "serious" medical need exists if
the failure to treat a prisoner's condition could result in further Significant injury or the "unnecessary and
wanton infliction ofpain." .... The
existence ofan injury that a reasonable doctor or patient wouldfind
important and worthy ofcomment or
treatment; the presence ofa medical
condition that significantly affects
an individual's daily activities; or
the existence ofchronic and substantialpain are examples ofindications that a prisoner has a "serious"
needfor medical treatment.
Apainful back condition treatable by surgery
constituted a serious medical need.
At 1060: "A defendant must purposefully
ignore or fail to respond to a prisoner's pain
or possible medical need in order for deliberate indifference to be established." Aclaim
of "mere delay of surgery" does not amount
to deliberate indifference unless the denial
was "harmful." However, "substantial" harm
is not necessary.

Psychotropic Medications
Pro Se Litigation/Medical CareStandards of Liability-Deliberate
Indifference/Service of Process
McGuckin v. Smith, 974 F.2d 1050 (9th
Cif. 1992). The plaintiff should have been
allowed to amend a complaint that named

Felce v. Fiedler, 974 F.2d 1484 (7th Cir.
1992). The plaintiff was paroled on the condition that he submit to monthly injections of
Prolixin.
The plaintiff had a liberty interest based on
the Constitution in avoiding the unwanted
THE NATIONAL PRISON PROJECT JOURNAL

administration of antipsychotic drugs. He
also had a constitutionally based liberty interest in staying on parole and a state law based
liberty interest in being released on parole.
His liberty interest in avoiding unwanted
medication is "essentially the same" as that
enjoyed by prisoners.
After an extensive analysis under Mathews
v. Eldridge, the court concludes that the
Wisconsin procedure, which heavily emphasizes the judgment of the individual parole
agent and does not "subject [the decision] to
independent medical evaluation," does not
meet due process requirements. The court
remands for the entry of a suitable injunction.

provide a prisoner with a diet that is
consistent with his religious scrupIes.... Kahane has never been overruled and remains the law.... The
principle it established was not
placed in any reasonable doubt by
intervening Supreme Court rulings
in [O'Lone and Turner], that prison
.'(
officials need meet less exacting
standards when a prisoner's interest~ in marrying, or attending religious ",
ceremonies, or maintaining the
;.~,:
length ofhis hair is to be balanced
against interests ofrehabilitation
and prison security.

Correspondence-Legal and Official
Reneer v. Sewell, 975 F.2d 258 (6th Cir.
1992). The plaintiff's allegation that items of
his legal mail were read, rather than simply
being inspected for contraband, in retaliation
for his prior complaints against a prison staff
member, made out a First Amendment claim.
The court emphasizes the fact that such reading is prohibited by state regulation without
explaining how that fact fits into the constitutional analysis. (The case can be read as suggesting that lower-level prison officials cannot rely on a supposed penological interest
disclaimed by their superiors.)

In Forma Pauperis
Moore v. Mabus, 976 F.2d 268 (5th Cir.
1992). The plaintiffs' claims concerning the
inadequacy of medical treatment for HIV-posHive inmates and unjustified denial of privileges to them should not have been dismissed
as frivolous. The court observes in dictum:
"Wilson [v. Seiter] does not require a
'smoking gun' in order to find deliberate
indifference." (271)
One plaintiff's claims regarding loss of his
privacy rights were appropriately dismissed
based on the court's prior rejection of his
motion for a preliminary injunction; his claim
about segregation is rejected because "the
identification and segregation of HIV-positive
prisoners obviously serves a legitimate penological interest." (271, footnote omitted)
The district court should promptly appoint
counsel because of the complexity, scope,
and need for resources and expert testimony
presented by this case.

Equal Protection
Albright v. Oliver, 975 F.2d 343 (7th Cir.
1992). Equal protection is violated only by discrimination based on membership in a class
and not by random governmental incompetence.
Hazardous Conditions and
Substances/lnjunctive Relief
Burton v.Armontrout, 975 F.2d 543 (8th
Cir. 1992). The plaintiffs alleged that they
were involved in a large-scale cleanup of
sewage and prison officials failed to warn
them that the sewage was contaminated with
the HIV virus and other infectious diseases. A
jury found for the defendants.
The court PtVperly granted an injunction
requiring defendants to supply protective
clothing and masks and to post warnings.
Although equitable relief must be consistent
with the jury findings, a general verdict of no
damages did not preclude injunctive relief
because it did not clearly establish the factual
bases for denial of relief. The court was entitled to take additional evidence not heard by
the jUry concerning prison officials' continuing failure to remedy the problem in considering injunctive relief.
Religion-Practices-DietJDeference
Bass v. Coughlin, 976 F.2d 99 (2nd Cir.
1992) (per curiam). At 99:
At least as early as 1975, it was
established that prison officials must
THE NATIONAL PRISON PROJECT JOURNAL

Procedural Due ProcessDisciplinary Proceedings
Hamilton v. a'Lemy, 976 F.2d 341 (7th
Cir. 1992). The plaintiff was found guilty of
possessing contraband based on the finding
of weapons in a vent to which a total of 32
prisoners had access. His three cellmates
were also charged, but not inmates in an
adjacent cell. The disposition stated that prisoners are "responsible for whatever is found
in the cell."
At 345: "The ticket, together with constructive possession, is 'some evidence' of
Hamilton's guilt." The court concedes that if
32 inmates had access to the vent, yielding a
3.1 %chance the plaintiff was guilty, the
"some evidence" rule would not be met.
However, the plaintiff did not say that he
heard the weapons being thrown in the vent
by other inmates or that 32 inmates had
access to the vent, and the court doubts that
the disciplinary board members knew the
engineering of the vents. Therefore, from the
committee's point of view, considering the
plaintiff and his cellmates, there was a 25%

chance of his guilt, which meets the "some
evidence" standard.
Judge Posner, dissenting, says it was
absolutely clear that the plaintiff told the
disciplinary committee that eight inmates had
access to the vent, yielding a known probability of guilt of 12.5%. At 347: "That is not my
idea of 'some evidence,' ...unless purely collective guilt is deemed to satisfy due process
-which in prison circumstances it might
be,...but the defendants do not defend the disciplinary committee's action on that ground."
'\·1

DISTRICT CO-VRTS
Use of ForcelMunicipalities
Berry v. City ofPhillipsburg, Kan., 796
F.Supp. 1400 (D.Kan. 1992). Evidence that
the mayor had told the City Council that the
police chief had a history of failure to supervise adequately and of personally using
excessive force, and that the Council members told him they did not care, supported a
claim of municipal liability for his misuse of
force, as did evidence that the police chief
himself was the city's "policymaker" with
respect to arrests.
Pre-Trial DetaineeslModification
ofjudgments!Closing of Facilities!
Mental Health
Inmates ofAllegheny County jail v. Wecht,
797 F.Supp. 425 (W.D.Pa. 1992). The agreed
deadline for closing an antiquated and unconstitutional jail is extended to correspond to
the schedule for completing a new jail.
The court increases the population cap to
10 less than the Single-celled capacity of the
632-cell jail, based on improvements in conditions and services and a decrease in the number of "down cells," and contingent on the
maintenance of the present level of staffing
and the expansion of the counselling staff.
The court approves defendants' plan for an
"intensive case management" program in the
jail, i.e., a program of providing services to
inmates in the general population, rather
than their previous plan for construction of a
separate mental health facility. The court
"believe[s] that the deinstitutionalization philosophy in the mental health field constitutes
a significant change in treatment prescribed
for the mentally ill." This "significant
change" entitles the defendants to consideration under the Rufo standard. Since no one
disputes that the proposed program meets or
exceeds constitutional minima, the modification is justified.
Defendants are to be permitted to use fine
money accumulated for previous judgment
violations to implement the new mental
health program, with monitoring by the
court's jail monitor.
The court states its belief that this 16-yearSPRING 1993

13

old case is "progressing toward resolution."
However, it keeps the monetary sanctions for
violation of the new population cap in place.

Modification of Judgments~udicial
Disengagement
Patterson v. Newspaper and Mail
Deliverers' Union, 797 F.Supp. 1174
(S.D.N.Y. 1992). At 1179: "Before exercising
its power to modify or vacate a judicial
decree, a court must be convinced by the
party seeking relief that the purposes of the
litigation as incorporated into the decree have
been fully achieved." Dowell and Rufo are
applied to a consent decree in a Title VII
employment discrimination case. The exceeding of the goal of 25% minority representation for a period of seven months leads the
court to conclude that the decree's purposes
have been achieved and that the enforcement
structure of the consent decree "is now an
unnecessary and expensive relic, and ought to
be retired." (1180) The court also cites language in the decree itself suggesting that it
was intended to terminate at some point.
After 18 years, the decree is vacated in its
entirety.
The court declines to hold an evidentiary
hearing on the plaintiffs' contentions that discriminatory actions have continued and will
continue, and reiterates its prior holding that
if the plaintiffs think that the consent decree
was insufficient to end discrimination, they
must bring a new lawsuit rather than seek
modification of this judgment.
Civil Rights of Institutionalized
Persons Act
United States v. State ofTennessee, 798
F.Supp. 483 (W.D.Tenn. 1992). There is no
minimum number of affected residents
required to support an action by1he federal
government under the Civil Rights of
Institutionalized Persons Act. Aclaim under
the Individuals with Disabilities Education Act
is permitted to go forward under CRIPA.
The fact that the institution is certified as
an Intermediate Care Facility for the Mentally
Retarded under the Social Security Act does
not establish a presumption of constitutional
conditions. At 489:
Certification does not guarantee
that constitutional minima exist. See
Lelsz v. Kavanagh, 673 F.Supp. 828,
841 (N.D. Tex. 1987) ("Surveyors
examine whether policies andprograms exist, not whether those policies or programs result in adequate
care"). Additionally, facilities with
serious deficiencies are allowed to
provide a "plan ofcorrection" and
maintain their certification. Thus,
certification is not equivalent to a
legalpresumption ofconstitutional
·14

SPRING 1993

conditions, although it may provide
some evidence on that point.
Heating and Ventilation/Clothing
Gordon v. Faber, 800 F.Supp. 793
(N.D.Iowa 1991), remandedfor additional
findings, 963 F.2d 187 (8th Cir. 1992), on
remand, 800 F.Supp. 797 (N.D.Iowa), afj'd,
973 F.2d 686 (8th Cir. 1992). The plaintiffs
were forced to exercise for several hours
without hats or gloves in sub-freezing weath;,
er, even though some of them did not wish to
go out and hats and gloves were readily available. They claimed no long-term injury.
This treatment violated the Eighth
Amendment. At 796: "Adequate clothing is
one of the necessities of life of which prison
officials cannot deprive an inmate....Prison
officials violate the Constitution if they provide inmates with clothing that is 'patently
insufficient to protect [them] from the cold
in the winter months.'" The court does not
believe testimony that this was done because
of concerns for contraband, and even if this
were true, the concerns would be unfounded
in this situation.
Heating and Ventilation/Clothing!
Cruel and Unusual Punishment
Gordon v. Faber, 800 F.Supp. 797
(N.D.Iowa), afj'd, 973 F.2d 686 (8th Cir.
1992). The appeals court remanded for clarification of the disti:ict court's findings as to
whether the objective component of the
Eighth Amendment had been established by
the plaintiffs.
The court concludes that the deprivation
was "extreme" because of the length of time
that the inmates were subjected to extreme
weather conditions without minimal protection, the defendants' knowledge of the conditions (the officer on duty had thick gloves
and a thick hat), and the plaintiffs' description of pain and numbness. The duration is
characterized as "over one hour." (800)
The deprivation in this case was without
legitimate penological justification, "which is
relevant to the determination of whether the
objective standard has been violated." (800)
Religion-Practices-Diet
Bass v. Coughlin, 800 F.Supp. 1066
(N.D.N.Y. 1991), afj'd, 976 F.2d 98 (2nd Cir.
1992). The plaintiff alleged that he was not
prOVided with a kosher diet for about 15
months at Clinton Correctional Facility. (The
prison prOVides a "Cold Alternative Diet" but
only for prisoners preViously enrolled in the
kosher diet program at Green Haven.)
The defendants are not entitled to summary
judgment despite their claim that the plaintiff
could have bought his own food (which he
said he couldn't afford) or eaten only the
kosher items in the regular diet (which he

said weren't marked). The right of observant
Jews to a nutritionally adequate kosher diet
has been established since Kahane v. Carlson
(2nd Cir. 1975), which has not been overruled. The change in the governing constitutional standard in Turner v. Safley did not
"dis-establish" this rule. At 1071: "When the
Court of Appeals announces a principle of law
for this circuit, it remains the law until the
case is overruled or reversed. DOCS officials
should not be entitled to speculate as to how
the Court of Appeals would rule if faced with
the question again:f

,)

Use of ForcelDamages-Punitive
King v. Macri, 800 F.Supp. 1157 (S.D.N.Y.
1992). The court precluded plaintiff's counsel from inquiring into officers' prior disciplinary histories, but defendants' counsel's
inquiries of two of the officers, who had not
been disciplined, "opened the door" for
plaintiff's counsel to argue to the jury that
there was a reason the question was not
asked of the third officer.
The failure to award compensatory damages is not dispositive of the question whether
the plaintiff suffered a constitutional violation
and does not preclude the award of punitive
damages.
Acompensatory award of $75,000 for two
months' wrongful incarceration is not excessive. Awards of punitive damages of $75,000
for excessive force against one defendant and
$75,000, $50,000 and $75,000 for excessive
force, false arrest and malicious prosecution
against the other were not excessive.
Defendants' failure to introduce evidence of
their earning power or resources precludes
their argument that damages should be
reduced as disproportionate to them.
The verdict need not be set aside even
though it may have been affected by "passion
and emotion" resulting from the Rodney King
verdict and its sequelae because this verdict
was supported by substantial evidence and
the Los Angeles riots may legitimately have
altered community perceptions in this area.
Staffing-SexiSearches-PersonPrisoners
Canedy v. Boardman, 801 F.Supp. 254
(W.D.Wis. 1992). Astrip search of a male
prisoner supervised by a female officer did
not violate the Fourth Amendment. This court
rejects the numerous prior cases holding that
the Fourth Amendment permits only inadvertent, infrequent or random observations of
nude prisoners by opposite-sex staff on the
ground that prisoners' privacy interests are
outweighed by the equal employment rights of
prison staff. Gender cannot be a bona fide
occupational qualification under Title VII for
this purpose.

THE NATIONAL PRISON PROJECT JOURNAL

of a single death pe
, making capital pu
risonmentwithout
.allevel, and thus
end toward limitin
For more informati
'on Center, 1606 20th
9. 2021347-2531.

• The treatment of seri
is "appalling,'; according to
DistrictJudge Carl Muecke in P
Ruling in Casey v. Lewis, a cl
behalf of all Arizona prisoners
deficiencies in the prison men
ate indifference to inmates's
the inmates' constitution
unusual punishment are
Prison Project of the Arne
Washington, D.C. and atto
Union brought the ease for
Muecke rejected prison
cies were a result of budge
of staff and programming is
from the Legislatureis not a
violations," he wrote.
Arizona prison officialsal
female prisoners by failing
vices comparable to those
Muecke also found that
systems were unconstituti
However, he found, the'
cials to make numerous i·
constitutional by the ti
cannot be assured that
the new programs," Mue
periodic reports on the sta
systems.
"It's a victory for basic
H. Adams, Jr. "A senten
death or needless suffe
tal health care."

son Project announces
ners' A~sis!ance.pi11
orgamzatlOns W;'Pc
ilies including,tegal
port, visitatioft; and ad
ups focusing on the
S, women, juveniles
ge Directory is avai
Prison Project, 187
20009. (Note to priso
ts from the Directory

• The Death Penalty I
report on the costs of the d

In Forma Pauperis
Mwphy v.Jones, 801 F.Supp. 283 (E.D.Mo.
1992). Pursua.qt to local rule, a plaintiff
granted in forma pauperis was required to
notify the court of any substantial change in
his financial status. Dismissal is one of several
possible sanctions for noncompliance, but
given the ambiguity in the local rule and the
plaintiff's eventual compliance, it is too harsh
a penalty here. The court may revoke IFP status if the evidence shows that "plaintiff's economic situation is no longer a significant barrier to maintaining the action." (289) Several
courts have found that revocation of IFP status
is retroactive, requiring the litigant to pay the
entire filing fee plus all other costs accrued.
The court rejects this "payor dismiss" view,
at least as applied to a litigant whose financial
situation improves after filing, since the IFP
statute permits dismissal only if the affidavit of
THE NATIONAL PRISON PROJECT JOURNAL

poverty is "untrue." The court also rejects
other decisions' analogy to proceedings under
the Criminal Justice Act. Finally, there is no
reason to require retroactive payments in this
case, since the previously paid partial filing
fee of $13 served the purpose of deterring
frivolous complaints.

Class Actions-Settlement of Actions/
Judicial Disengagement/Crowding
Diaz v. Romer, 801 F.Supp. 405 (D.Colo.
1992). Defendants were ordered to post notice
of a class action settlement and a copy of the
proposed agreement in every living unit and
law library of each affected prison. The court
makes factual findings concerning compliance
and the adequacy of notice. The court also
notes that class counsel met with class members, discussed the settlement at length, and
obtained changes in the agreements to reflect

concerns raised in these meetings (410).
At 407:
".. .[T]he fact that the agreements
reached do not address each and
every issue raised in the Complaint
or Motion for Contempt does not in
and ofitselfgive cause to question
the fairness ofthe agreements or the
process involved in reaching them. "
One of the agreements amounts to a final
resolution of Ramos v. Lamm. At 408:
In return for the immediate dissolution ofallprevious orders ofthe Court
in this action, and the withdrawal of
plaintiffs'pending (contempt
motion], defendants have agreed to
make capital improvements and to
undertake other steps, most notably
staffing increases, at the affectedprisons.... Except for the limitedpurpose
SPRING 1993

15

ofenforcing the terms ofthe settlement agreement, this case will be
closed in its entireZv and the Court's
jurisdiction over the parties will end.
The agreements contain a "two-year period of
compliance," which is not explained but presumably limits all the terms of the agreement.
Class members objected to the removal of
population caps that would prohibit doublebunking and the failure to eliminate it where
it eXists, but the court finds that with the
increase in staff, and given the adequacy of
other conditions, it is not unconstitutional.
The court also approves provisions involving
medical and mental health care, sex offender
treatment programs, and food service.
Procedural Due Process.Administrative Segregation!
Protective Custody
Banks v. Fauver, 801 F.Supp. 1422

(D.N.]. 1992). The plaintiff was placed in
protective custody based on an anonymous
tip that his life was in danger and that he
was involved in drug trafficking as well as
the charge that his wife had tried to smuggle
money to him.
New Jersey regulations create a liberty
interest in staying out of protective custody
(1428- 30). They define protective custody
as confinement to a secure unit "in order to
provide protection to the inmate from injury
or harm actually threatened or reasonably
believed to exist"; this phrase constitutes
the regulation's substantive predicates. This
definition, combined with language requiring the superintendent to review the reasons
for PC placement "to determine whether ...
there is a reasonable basis to conclude that
the inmate is in need of Protective Custody,"
and the requirement that the initial placement decision be supported by evidence and

reasons related to the PC definition, constitutes mandatory language.

FEDERAL RULES
Use of ForcelDiscovery
Castle v.fallah, 142 F.R.D. 618 (E.D.Va.
1982). At 620: "... [P]ro se litigants are entitled to the use of discovery procedures in
civil cases on the same terms as litigants represented by counsel."
The plaintiff was entitled to discover factual
material in prison teports of incidents; if they
contain deliberati,,~ material, defendants may
submit them for.consideration of redaction
within 20 days. III

john Boston is the director ofthe
Prisoners' Rights Project, LegalAid
Society ofNew York. He regularly contributes this column to the NPPJOURNAL.

"Dear Prison'Project..."
The National Prison Project l'
over500 letters each
weekfrom p1'isoners. Many oft
tel'S include legal questions which, unfortunately, we have neither the time nOt' the
staffto answer individually. In order to giveprisoners some
ofthe information requested, we have begun an "advice" column, a sort of"DearAbbY"for . rs on legal questions.
This issue's 'DearAbby" isjoe
Dear Prison Project:
I am currently litigating a Secti
complaint in the federal court. In response to my
the defendants argue
that my claims should be dismecause they are barred by
the doctrine(s) of resjudicata and/or collateral estoppel. I am
confused because, from my understanding, these doctrines
appear to be the same. What am I missing?
Confused
Dear Confused:
The legal doctrines of resjudicata and collateral estoppel
are not synonymous. Each has a distinct application. They
appear to be the same because both doctrines are procedural
mechanisms designed, and used, to preclude claims (bar
review). Both serve the same underlying principle of issue
preclusion: Le., stop repeated litigation of issues by the same
parties.
If the lawsuit you filed contains issues where there has
already been a "judgment on the merits by a court of competent
jurisdiction in a prior lawsuit involving the same parties or
their agents," then resjudicata may apply. The application of
resjudicata requires that certain defined conditions exit: (1)
there must have been a prior judgment on the melits; (2) the
judgment must come from a court with competent jurisdiction;
(3) the suit must involve the same patties or agents; and (4)

16

SPRING 1993

the suit must stem from the same cause
conditions do n
t then you should
does not apply to yo case.
Collateral estoppel promotes a distinct as
underlying principle: you cannot ni-litiga
issues that were actually litigated and de
involving you iN'
ctive of wheth
was previousl
In other
that resjudi
lies, and yot
qualify as th
ause of actio ,
not apply to
. But, your sam
cluded under t
ctrine of collater.
dants can show that your underlying f
are the saine as those previously decided a
As with resjudicata, certain conditions
collateral estoppel can be applied to p
Collateral estoppel should not app
was based on: (1) a "full and fair oppo
an issue previously decided but the rull
necessary to th
sion in the prior c
impossible to
ine what was litigat
.prior action, then collateral estoppel sho
burden of proof rests with the defendants
was not litigated and deCided. It is import
show the court
ur claims are not t
conditions ou
bove.

THE NATIONAL PRISON PROJECT JOURNAL

Is Legal Punishment Right? The Answer is No.
he official and stated purpose of
Canada's criminal justice system is
to punish. In fact, Canada's most
recent policy proposal clearly names
"retribution" as the aim of our criminal
law. Punishment is endorsed as "a
requirement of justice" simply because it
is seen as "a fitting response to wrongdoing."
No one questions whether it is "right"
to retain legal punishment in the face of
overwhelming evidence that our punishment-based criminal justice system has
not only failed but has had a destructive
effect. The 1987 Canadian Sentencing
Commission reported 952 pages of such
evidence, but still endorsed punishment.
The Commissioners called it a solution
"of despair, not of hope," but necessary
so that criminals would get what they
deserve. This way of thinking has become
so formalized that it is referred to as the
theory of "just deserts."1
Proponents of the theory claim that
legal punishment can be justified if the
purpose is censure and blame, and when
this is what an offender "deserves." In
this view, punishment is required
because of its role in expressing disapproval of misconduct.
According to the theory of just deserts,
punishment serves two intertwined purposes: deterrence and denunciation. It is
in order to serve the dual purposes that
the criminal sanction must have two
essential features-the imposition of
painfUl consequences and a message of
condemnation.

T

Commonly Accepted Ethical
Considerations and Constraints
Following a checklist of some of the
critical issues identified in the literature
and Canadian official policy documents:
Proportionality: Punishment is supposed to comport with the seriousness of
the crime, Le., it must be deserved.
Parsimony or use 0/ restraint: Stateinflicted suffering should be kept to the
minimum needed to achieve the purpose
of intervention.
Preventive effect: The use of something so intrusive as the criminal law and
legal punishment can only be "right" if
its use can be justified by some preventive effect. Often referred to as "the
Kantian injunction," this requires that no
offender be made to suffer harsh punish-

rs

THE NATIONAL PRISON PROJECT JOURNAL

ment merely in order to alter the behaviour of others.
Censure: The punishment must express
moral condemnation, disapproval, and '\'
blame.
./~;
The overall magnitude o/the penalty,
scale must be just:
.
There should be limits to how disapproval may be expressed, particularly
upper limits.
Seriously wrongful conduct: Law professor Andrew von Hirsch's whole justification for making legal punishment
"right" takes for granted, he says, that it
would only apply to serious violations of
others' rights.
Economic conditions in society must
be just: This is the biggest caveat of all.
Just deserts in an unjust society may not
be possible. Von Hirsch notes that all his
assumptions-about wrongfulness of the
criminal conduct and the culpability of
the actors who engage in it-could be
questioned "in situations of sufficient
social and economic deprivation." A
growing literature also draws attention to
gender and race.
Collateral burden o/punishment
must not overwhelm: The burden must
not be so large as to overcome the
desert-based case that makes punishment "right."
These are the ethical considerations
accepted today as criteria for ensuring
that legal punishment is right. They also
represent a scathing indictment of current sentencing practices in Canada and
the U.S., and probably around the world.
At the least, a radical downscaling of
penalties is required even to pay lip service to the ethics of just deserts.
So much depends on what von Hirsch
calls "one's moral assumptions, political
ideology, and values about which reasonable people can disagree." The fatal flaw
in the theory of just deserts is that it is an
abstract construction.
The logic of punishment will inevitably
breed injustice in an unjust society and,
for this and several other reasons, punishment is not "right." Some of the purposes for which punishment has been
used are important. I do not for a minute
suggest that we should do nothing about
crime. Of course, denunciation, protection and proportionality are important.
What is in question here is the assumption that punishment is the only means
of doing these things. It is not the best
means, nor is it necessary. It is not right
because it does so much harm.

If it can be shown that a system of punishment cannot deliver on the promises
that have justified it, and is unable to
conform to the ethical standards agreed
upon as necessary constraints on actions
by the state, then we can reasonably
begin to consider that legal punishment
may not be right.
We must reflect on how the theory
behind punishlnent is based on an outdated underst,inding of the world; it is
based on re~soning that just does not
make sense: Finally, and this will ring
true to anyone with any experience of the
courts, the kind of adversarial procedures it has led us to gives no one a
sense that what is done is either satisfying or right.

A Set of Outdated Assumptions
The reality of justice and our beliefs
about justice are no longer the same in
this society.
An overwhelming body of findings from
the fields of social and modern physical
sciences has shown that the imbalance of
power and wealth in our society has led
to inequities. These inequities have been
rationalized by those who have the power
to produce our ideological theoriestheories that define what is "right."
Within existing social contexts, many
people are left at the mercy of the social
ethic of the dominant group-those
with the power to define for everyone
which interests are valuable, whose
interests are valuable, and what rights
are valuable. Degrees of "blameworthiness" become very difficult to judge
given the imbalance of power and
wealth. Assigning proportional ratings is
not possible and the end result is the
justification of the oppression of one
group by another.
Those whom punishment might deter
from acts defined as "criminal" do not
share a common context of symbolic
understanding with the dominant group.
In fact, according to reviews of the most
current communications research by
world-class academics like Thomas
Mathiesen, the preventive message of
punishment lands in a context of interpretation such that "the signal is not
effective, and the message not understood as the sender has meant it.,,2 Those
whom the message is intended to deter
most often are already alienated from the
dominant group. Mathiesen says, "The
signal is not interpreted as a [threat ofa]
deterrent sanction or of an educational
SPRING 1993

17

j

.ip

message. Rather, it is for example interpreted as more oppression, more moralizing and more rejection."
On the other hand, those who share a
common context of symbolic understanding with the dominant group sending out
the deterrent message are already, for
other reasons, safely placed on the
"right" side of the line. "Put briefly and
in bold relief," says Mathiesen, "general
prevention functions in relation to those
who do not 'need' it. In relation to those
who do 'need' it, it does not function."
The power of the dominant group to
assert that their perception justifies
legal punishment can lead to scapegoating of those with whom there is not the
relationship, bond or shared meaning
that can otherwise be called upon to
absorb conflicts of interest. Conflict with
the order imposed (on the basis of their
definitions) is no longer seen as the natural conflict of desires between equals,
but as the "crime" or "sin" or "flaw" of
the other. "I am afraid of you" becomes
"you are dangerous." "I find it hard that
you are different from me" becomes
"there's something wrong with you; you
must change or leave." "I don't understand why you are not trying to be the
way I think you should be" becomes
"you are unremorseful, unrepentant,
uncooperative. "
There is no doubt that crime cannot go
ignored. But our criminal justice system
is profoundly beside the point when it
comes to dealing with crime. If our
response is to truly help us build a
stronger community-which is the goal
espoused in "just deserts"-it cannot be
based on a punishment strategy.
Is Punishment Right?

Proportionality
In light of contemporary knowledge,
the very determination of proportionality
is an obsolete Itotion. Tragically, however, within this "decontextualized" model,
the labelling of a behaviour as "criminal
offence" produces a kind of reification of
it and triggers a process that then takes
on a life of its own. Indeed, conduct
labelled as "crime" includes, in von
Hirsch's own estimation, behaviours that
do not constitute violations serious
enough to warrant the intervention of the
State at all. With the label "criminal
offence" applied, individual behaviour is
no longer addressed with its idiosyncratic human features. Abstract categories of
"crime" and "time" are compared without regard for context or content, in slavish adherence to the demands of proportionality. The principle of parsimony is
18

SPRING 1993

in punishment's preventive effect still
prevails as its lingering justification. The
burden of proof is placed on those who
would cast doubt on it.
There are solid grounds for the claim
that punishment, if it "works" at all, cannot be justified as either the primary
means of preventing crime, the most
important means, or the most effective
means for doing so.
.h: J•

never applied. The convention has been: ;"
determined by the dominant group and is
now cast in stone.
Time after time, rationales justify
imposing greater punishment than the
"mitigating individual circumstances"
warrant. This is done to set an example
and "send out a message" to people with
so little status in the dominant group that
they have neither the credibility nor the
resources to challenge it. It also serves to
make an example of the "non-disadvantaged" person who falls from grace
through some deviant act and must be
sacrificed to show that the principle of
"just deserts" plays no favourites.
Contemporary societies are complex,
impersonal, multicultural and non-communal. Legislators and judges administer
justice within this context in a turbulent
atmosphere of court backlogs and politics. They face a situation where, by legislative edict, every behaviour that can
potentially be labelled "offence" also
carries the potential for a prison sentence. In such a context, what Mathiesen
calls the "action function" of imprisonment makes it the quickest, most observable sign thatsomething is being done
about crime.
The high collateral costs of this outcome, both financial and human, serve
ultimately the interests of no one at all,
save perhaps the industry that has grown
up around it.
The inescapable conclusion: punishment cannot be proportional and therefore cannot be justified.

The Prevention Requirement
The evidence that deterrent effect cannot stand up to scrutiny is overwhelming.
What all the literature boils down to is
this: the premise that punishment has a
preventive or deterrent effect is based on
sheer assumption that fear of unpleasant
consequences is a highly motivating factor in most walks of life. Empirical
knowledge, says von Hirsch, about the
actual deterrent impact of penalties is
not conclusive, and Mathiesen's comprehensive review of the research corroborates this. Yet this unsubstantiated belief

The Requirements ofLogic
From whence cames, then, this strange
belief in criminahlaw as a kind of penal
magic, as if violence could produce nonviolence? Punishment is, by definition,
the deliberate infliction of suffering; it is
justified violence.
The logic of punishment cannot hold.
To aim to punish and re-integrate offenders at the same time are contradictory
objectives-as in to walk and stand still,
to speak and remain silent. But this very
logic of "just deserts" now forms the
basis of Canada's most current policy
proposals for the acceptable aim of its
criminal law! Retribution or violence
clings to our criminal law as an
inevitable reply to an earlier violence. At
best, it is prophylaxis. At worst, it is a
crime like the rest.
Mathiesen points out that punishment's
attempt to communicate a preventive
message is rendered ineffectual by several distorting factors. The assumption of a
preventive effect does not take into
account how punishment is experienced
by those on whom it is most likely to be
imposed. Some social pressure or threat
may make people conform but, beyond a
certain point (and this point is well surpassed by contemporary criminal justice
practice), the punishment is experienced
as an injustice, a rejection, a scapegoating. Ultimately a counter-culture
emerges, as opposed to conformance to
the dominant culture, because it is not
felt by those most often punished that
successfully refraining from certain conduct is all that is required to successfully
eliminate the risk of alienation from the
dominant group.
Repercussions ofan Adversarial System
The legal system spawned by the logic
of punishment is, of necessity, adversarial
and, as a result, is actually destructive of
some of justice's most cherished objectives: the shared sense of what is right
and wrong, the holding to account for
wrongdoing, the affirming of the importance of the rights of the person injured,
the sense of proportionality to the gravity
of the misconduct, and the prevention of
THE NATIONAL PRISON PROJECT JOURNAL

further harm. Today, the legal industry
turns the search for justice into a game
of technicalities played between lawyers
in court. The central focus is that a law
has been broken. The message overrides
the victim's priorities and considerations,
as well as any other rational concern for
protection, rehabilitation, and ultimate
healing of,the relationship with the victim
or the community. The entire symbolic
message of denunciation and moral condemnation must be carried by the length
of prison sentence that is broadcast in
headlines to the rest of the community.

ing. Justice cannot be built on exclusivism, absolutism, or intolerance.
Neither can it be built on vague liberal
slogans or pious programs, a soft
humanism which does not want to recognize evil and face it. We can only remind
ourselves of how we want to be liVing')'
together and, guided by those values,';;
within a framework of good and evil"t'
understand what needs to be done, with,
all the truthtelling needed. We need'a
,,,,,'1.

Justice as Punishment: The Final
Demise of a Paradigm

The hold that the punishment model
maintains on our collective psyche is
irrational. Fed by abstract stereotypes, it
remains blissfully unchallenged.
There are other ways of looking at the
kinds of problematic situations that get
criminalized, as feminists 3 and other
criminologists have begun to point out.
Problematic situations can be handled in
a wide variety of much more civilized
ways than today-as aboriginal legal
critics are rediscovering. 4
Denunciation is, in fact, an important
positive goal, as is the right to protection. But its inevitable association with
punitiveness makes for unresolvable
philosophical contradictions within a
framework where one must mitigate
against the consequences of a system
whose intent is also to remove certain
rights and liberties for the express purpose of inflicting pain as punishment.
When a way of thinking, based on
unquestioned "common sense," begins to
limit our ability to interpret and use new
information and insights, it is usually a
sign that a "paradigm" has been dominating our thinking and that a change in
paradigm is probably close at hand.
Since our p~radigms can blind us to new
possibilities, the ability to examine and
challenge them to break the old and create the new becomes important to our
human journey.
The ultimate contribution of Andrew
von Hirsch, then, to the contemporary
philosophic endeavour around justice
theory, is to have finally broken the punishment paradigm of justice, by an analysis of its logic that unmasks its utter
unworkability.
Creating a New Paradigm for
Doing Justice

Today we can no longer ignore that the
development of a just, peaceful, and safe
society is a process that is forever ongoTHE NATIONAL PRISON PROJECT JOURNAL

new "paradigm" for doing justice that
can help us build community, not further
destroy it.
We must end the apparent logic of
returning evil for evil, renounce the idea
of retribution and those forms of conduct
which have always appeared natural and
legitimate. If we are to escape from violence, if we are to live together in peace,
we must overcome the spirit of rancour
and vengeance. To avoid punishment and
blame, however, usually means to share
in the suffering, finding the human
capacity to bear pain and overcome it.
Conflict, crime and evil will never be
eliminated: it is how we deal with them
that must be changed.
New perspectives will take shape if we
have the courage to see that the emperor
has no clothes. Skepticism towards the
system must be honestly voiced as it
emerges, by top level decision-makers,
by personnel engaged in practice at the
grass-roots, by professional associations
and pressure groups outside the system,
and by the community at large.
New measures could be introduced
which can better satisfy aspirations and
needs. "Pre-emptive deterrence" could
be emphasized, rather than intervention
by punishment after the event. Efforts
could focus more closely on the harm
done to people-rather than on the
"law" that has been broken. Care for the
victim could become central to the system, rather than concentrating services
exclUSively on blaming and fixing individual offenders. The peace-making function
of the law could be developed, with procedures for solVing more conflicts in the
community.
The notion of "punishment" could be
replaced by "liability" of an offender for a
given offence. The least onerous measures

should be chosen in accordance with the
"response-ability" of the offender.
Some separation from society may be
needed, but not for the purpose of punishment. Some non-violent alternative
form of "moral expression" may be
needed-rituals, for example-to
express denunciation and release in
healthy ways the vengeful feelings and
retributive emotion-but without feeding
the cycle of violence. Ultimately, some
strictly coercive measures bordering on
punishment 1lJ.ay have to be invokedbut only as aJast resort.
This by npmeans implies that society
should not"protect itself or censure
wrongdoing. Denunciation and disapproval are important human responses to
wrongdoing. But it is a fallacy to believe
that the response must be punitive.
The concept of "deserved punishment"
is deeply entrenched, reaching back into
biblical tradition. It was originally
intended as a limiting principle (no
more than an eye for an eye), restricting
what could be done to tangibly acknowledge the harm done. What has now
grown up around it is the infliction of
pain and the satisfaction of revenge. In_
light of contemporary knowledge and scientific evidence, this cannot be an
acceptable foundation for any government's criminal justice policy.•

Lorraine Berzins has a Masters of
Social Work from McGill University.
She has worked within the criminal
justice system as a classification officer, program consultant and the first
Coordinator ofthe Female Offender
Program at the Department ofthe
Solicitor General in Canada. Berzins
has recently worked with the Church
Council on Justice and Corrections in
the areas ofjustice reform, family violence and women in the justice system.
1 The writings of law professor Andrew von Hirsch
have been particularly influential in narrowing
down and spelling out this theory as a credible reason for allowing punishment by the state, See particularly his article, "Proportionality in Philosophy
of Punishment: From 'Why Punish?' to 'How
Much?'" Criminal Law Forum, and International
Journal, VoU, No,2 (1990),
2 Mathiesen, Prison on Trial: A Critical
Assessment, London, (1990).
3 Ed. note see M. Kay Harris, "Exploring the
Connections Between Feminism and]ustice," NPP
JOURNAL, No.13, Fall 1987.
4 Von Hirsch mentions the analogy of penance rituals. Penance rituals could prOVide alternatives for
the "moral discourse" needed, the communication
of judgment and feeling, the need for reflection on
the moral quality of certain behaviour, the recognition of the seriousness of the harm done, and the
valUing of certain rights.

SPRING 1993

19

~:

(con 'to ji'Om page 2)

The authorities had tried to restrict our
prison visits to foreigners only. We insisted
that the Russians be allowed in, too. The
relationship between the ministry officials
and small penal reform groups who are
Russia's only independent watchdogs is
inevitably ambivalent. The activists' work in
publicizing abuses is embarrassing to officials. On the other hand, their knowledge
about penal issues has had a role to play in
framing legislation. At least one advocacy
group, the Prison Centre in Moscow, became
involved last year in peace-making inside the
penal colonies, when a spate of strikes and
riots threatened widespread bloodshed. The
Centre's founder, Valery Fedorovich Abramkin, a former prisoner and unremitting evangelist for reform, is a particularly tenacious
thorn in the side of the authorities. The
Ministry has banned him from making further
visits to the camps, but without total success.
Abramkin and his practical right-hand
man, Petrov (who met us at the airport),
have in recent years travelled outside
Russia, and seen prisons in the West. They
are well aware that prosperous capitalist
states do not necessarily treat their prison-

"Some people h
uring the conference,
that visited the remand
are his recollections:
"The facility was built in the
dungeon. Designed for 1,000,
visit. This included men, wo
juveniles, all kept in separate
ently no limit on the time 0
four years pre-trial, that is,
eight months if you're just
words, you can be held fo
charges are filed. The dir
place is so crowded that p
people have tQ"sleep while
70 men in a 40-man cell.
(which looked more like a
ers. The bunks are right u
even one inch of space be
sleeping platforms, one ro
bunks on top of them, with
between the bunks and the
"The director gave us the
tioned that it was not followe
With a population of over 5,
workshops that would acco
ation is on the roof in a b
get one hour each day in
was apparent that prisone
takes so long to get there

D

20

SPRING 1993

ers well. But they are the exception. Most
of the participants at the Moscow conference have not travelled abroad. Without
direct experience of the West, there persists a widespread belief that capitalism
can get prisons right. The visiting
Westerners had little success persuading
either the Russians or the many other exSoviet nationalities of the fundamental fact
that locking people up is a negative and
damaging act, and that imprisonment in
any country perpetuates crime.
Comparisons with U.S.

In one key respect, the former Soviet
Union compares favorably with the United
States. In the ex-USSR, widespread
amnesties for political and non-violent
prisoners in 1987-88 reduced the prison
population by more than a third. The
result is that the U.S. proportionate rate of
imprisonment, 455 per 100,000, is much
higher than the rate in the former USSR,
350 per 100,000 according to official figures. (Both sets are for 1990-91,)
But the numbers in prison in the former
Soviet Union are rising again. As everywhere,
the penal problem starts and finishes in the

.~.

world outside. Sharply rising crime is leading to public demand for tougher and
tougher penalties. The pattern is all too
familiar. The law-its content and its application-is what remains fundamentally different in the states which for three generations were under Soviet communist rule.
The Russian criminal code, though
amended, has yet to receive the root-andbranch overhaul that would bring it in line
with western norms. Little meaningful distinction is made between minor delinquency and dangetous crime. The key difference in sentencing is between first
offenders-first. time caught-and all the
rest. Sentences for relatively minor offenses remain remarkably long. The pretrial
investigation by a public prosecutor follows the inquisitorial system used in
Western Europe, which is unfamiliar to
Anglo-Saxon countries with an adversarial
system. But it is not accompanied by any
effective legal protection for the detainee;
no provision for bail, no limit imposed on
the length of time a prisoner awaits trial.
Juries have yet to be introduced into the
courtroom. And after conviction, legal
redress for inhumane treatment in custody

ep while other
s part of a group
Moscow. Here
erally a Victorian
the day of our
population) and
on. There is apparbe held three to
ged, but only six to
stigation. In other
e any formal
oned that the
p in turns. Some
going to show us
, the 40-man cell
held 70 prisonr; there is not
like two large
another row of.
'ngaround
d then menof the crowding.
had arts and crafts
outdoor recreare supposed to
n the crowding, it
oof because it
o many of them.

THE NATIONAL PRISON PROJECT JOURNAL

does not exist. This is a system inherited
by the now independent republics.
There appears to be no systematic
method of reversing wrongful conviction.
We heard of men and women convicted
for offenses, such as doing private business, which were crimes against the State
under communism. They are no longer
crimes, but, according to accounts at the
conference, people serving long sentences
for such activities remain in the camps.
With the outbreak of ethnic wars in several republics, the "crime" of being a conscientious objector has also reappeared,
resulting in imprisonment for those refusing to join up.
The law operates against a backdrop of
economic collapse, vertiginous inflation,
and top-level political combat between
reformers and old guard. It operates with
many of the judges from the old days still
in office, trained to protect the state, not
the individual. It operates, above all, in a
moral vacuum. Corruption at every level is
rife. We heard of examples at the conference, and even witnessed one when a
policeman stopped a driver taking us into
Moscow and accused him of a number of
infractions until he handed over 800
rubles. On this occasion, the presence of
foreigners made no difference.
Death Penalty

With the rule of law seen to be absent,
public faith in harsh punishment is well-

(con't. from page 7)
Deprivation of Liberty," 11 Canadian Psychiatric
Associationjournal470-484 (1966); Scott, G., &
Gendreau, P. "Psychiatric Implications of Sensory
Deprivation in a Maximum Security Prison," 12
Canadian Psychiatric Associationjournal 337-341
(1969); Cohen, S., & Taylor, L., Psychological Survival, Harnondsworth: Penguin (1972); Grassian, S.,
"Psychopathological Effects of Solitary Confinement,"
140 Americanjournal ofPsychiatry 1450-1454
(1983); Jackson';' M. Prisoners ofIsolation: Solitary
Confinement in Canada, Toronto: University of
Toronto Press (1983); Grassian, S. & Friedman, N.,
"Effects of Sensory Deprivation in Psychiatric Seclusion
and Solitary Confinement," 8 Internationaljournal of
Law and Psychiatry 49-65 (1986); Slater, R. "Psychiatric Intervention in an Atmosphere ofTerror," 7
Americanjournal ofForensic Psychiatry 6-12
(1986); Brodsky, S. & Scogin, F., "Inmates in Protective Custody: First Data on Emotional Effects," 1
Forensic Reports 267-280 (1988); and Cooke, D.
"Containing Violent Prisoners: An Analysis of the
Barlinnie Special Unit," 29 Britishjournal of
Criminology 129-143 (1989).
6 This description of cell extraction practices is corroborated not only by numerous prisoner accounts of
the process but also by explicit Department of Corrections procedures. Once a decision has been made
to "extract" a prisoner from his cell, this is how the
five-man cell extraction team proceeds: the first memTHE NATIONAL PRISON PROJECT JOURNAL

nigh unshakable. Apoll quoted at the conferenceindicates that 75% of Russians are
in favor of capital punishment, and 30%
want it expanded. One speaker at the conference felt that research into the effects of
capital punishment needed to be under- .
taken-to which Alvin J. Bronstein [exee~
utive director] of the NPP replied this ,;;
would be "like researching whether.~'
Buchenwald was a success."
The death penalty is not applied as}equently as it was under the old regiII)'~,
but recorded executions in the former
Soviet Union have been about 90 annually
in recent years (compared to 30 annually
in the U.S.). Abizarre debate took place
about the method of execution, and
speakers asked a senior ministry official
why the body could not be returned to the
family. They received the chilling nonanswer that the prison custom was cremation, "so there might be excesses because
of different cultural ways [among the
population] of disposing of the body."
The debate ended with a suggestion
from Alvin Bronstein, which received support, that there should be a resolution
against the death penalty. The chairman,
an eminent Russian writer, said he
couldn't be sure how to frame such a resolution. The discussion resumed. By the
end of the day, no one seemed clear
whether such a resolution did or did not
exist. (Throughout the conference, commitment was rivalled only by chaos.)

Jennifer Monahan is a British.freelance
journalist and member ofPenal Reform
International.

ber of the team is to enter the cell carrying a large
shield, which is used to push the prisoner back into a
corner of the cell; the second member follows closely,
wielding a special cell extraction baton, which is used
to strike the inmate on the upper part of his body so
that he will raise his arms in self-protection; thus
unsteadied, the inmate is pulled off balance by another member of the team whose job is to place leg irons
around his ankles; once downed, a fourth member of
the team places him in handcuffs; the fifth member
stands ready to fire a taser gun or rifle that shoots
wooden or rubber bullets at the resistant inmate.
7 One of the basic principles of any unit premised on
domination and punitive control-as the Pelican Bay
Security Housing Unit is-is that a worse, more punitive and degrading place always must be created in
order to pUnish those prisoners who still commit rule
infractions. At Pelican Bay, that place is termed the
"Violence Control Unit" (which the prisoners refer to
as "Bedrock"). From my observations and interviews,
some of the most psychiatrically disturbed prisoners
are kept in the VCU. Prisoners in this unit are not
permitted televisions or radios, and they are the only
ones chained and escorted to the door of the outside
exercise cage (despite the fact that no prisoner is
more than four cells away from this door). In addition, there are plexiglas coverings on the entire outside facing of the VCU cells, which results in a significant distortion of vision into and out of the cell itself.
Indeed, because of the bright light reflected off this

Plexiglas covering, I found it difficult to see clearly
into any of the upper-level VCU cells I observed, or
even to look clearly into the faces of prisoners who
were standing right in front of me on the other side of
this plexiglas shield. Inside, the perception of confinement is intensified because of this added barrier
placed on the front of each cell.
S In the first several years of its operation, Pelican
Bay State Prison had one fulltime mental health staff
member, and not a single Ph.D. psychologist or psychiatrist, to administer to the needs of the entire
prison population, which included over 1,000 SHU
prisoners, as well as over 2,000 prisoners in the
general population of the prison. Although the size of
the mental health staff has been increased somewhat
in recent years, it is still the case that no advance
screening is done by mental health staff on prisoners
admitted to the SHUs to determine pre-existing psychiatric disorders or suicide risk, and no regular
monitoring is performed by mental health staff to
assess the negative psychological consequences of
exposure to this toxic environment.
9 Cf. Toch, H., "The Disturbed Disruptive Inmate:
Where Does the Bus Stop?" 10journalofPsychiatry
and Law 327-350, (1982).
10 Dickens, C., American Notes for General
Circulation. London: Chapman and Hall (1842);
Beaumont, G., & de Tocqueville, A., On the Penitentiary System in the United States and Its Application in France, Montclair, N.j., (1833; 1976).

The Future of Reform

Given the nightmarish problems faced
by the ex-USSR, is there anything that can
be done by outsiders to further the
unpopular cause of penal reform? In
relation to the scale of the task, not
much. It was clear at the conference that
Russia and her neighbors are not going
to leap-frog the mistakes we in the West
have made over the past century. The
problem is not primarily one of money;
it is a question of mentality. What
Westerners can offer-and what the
reformers in:.j.ussia want-is know-how:
organizatiQJi,~l, technical, and, if precisely targeted, material.
But most of all, vigilance. The Russian
authorities pay far more heed to foreign
opinion than they do to their own citizens.
Former political prisoners have taken up
the cause of everyday prisoners, and of
everyday people, in their fight to make the
system more humane. There may no
longer be political prisoners in Russia
(though no one could swear to that), but
the need for constant reminders to those
in power that people in the West are
watching has not diminished. As Valery
Abramkin told us: "We need your support
just as much now as when we ourselves
were in prison." •

SPRING 1993

21

IDS Updat_e

_

"Teaching other inmates
about HIV/AIDS is not
an easy task."
-Dee Farmer, FCI, Springfield

eer educators have often been the only
source of education and advocacy in
prison around HIV/AIDS issues. Three
peer educators tell, in their own words,
about their struggles and accomplishments:

P

Dee Farmer-FCI Springfield, Missouri
There is little literature evaluating the
effectiveness of HIV/AIDS peer educators.
But many believe inmates are best qualified to educate other inmates about
HIV/AIDS. Most prison officials are perceived as judgmental in their AIDS education programs. Instead many inmates, like
myself, have filled in and sometimes taken
over the prison AIDS education program.
Teaching other inmates about HIV/AIDS
is not an easy task. In educating fellow
inmates we are asking them to change the
way they engage in sexual activity and drug
use; or with the absence of condoms and
clean needles, to abandon these activities
completely. It is not easy to ask inmates to
do this, because sexual activity and drug
use can be a comfort in the lonely and isolated prison environment.
Our message has to be that though giving
up these activities may be emotionally difficult now, not to do so can be a lot worse in
the long run. Beyond AIDS education we
must begin to network. I do my part by
mailing AIDS literature to inmates throughout the country and writing articles for
AIDS magazines and prison publications.
Here, at the Federal Prison Medical
Center my mission is to show inmates how
to live positively with AIDS. When
HIV/AIDS inmates arrive here they are
lonely and scared. On the terminally ill
ward I witness AIDS patients being fed
intravenously, unable to walk, barely
breathing, and just hanging on to a thread
of life. No matter how often I visit the ward
I am always overwhelmed with a deep
sense of sadness. I feel compelled to tell
22

SPRING 1993

Mike Flashner, a peer educator at the Pondville (MAl Correctional Center, would
like to see a national peer education organization.

everyone that AIDS can be a killer. Protect
and take care of yourself, because a prison
hospital is one of the worst places to be.
Cruz Salgado-Wallkill Correctional
Facility, New York
It hasn't been easy, trudging through this
struggle, but after the death of a good friend
five years ago, I decided to pick up the banner of peer support. You see, my friend
died of pneumocystis carinii pneumonia
(PCP). Since then, I've coordinated support
groups, taught AIDS prevention education,
conducted seminars, chaired the Prisoners
for AIDS Counseling & Education group,
and I am now a certified peer (AIDS) counselor. In the process, I've also seen how the
AIDS crisis in prison has affected fellow
prisoners. Although there has been some
improvement, the overall quality of treatment for prisoners with HIV/AIDS continues
to crawl at a snail's pace.
Hopes that things will improve in '93
seem bleak. Out of the quagmire three
issues emerge that need action: 1) the
slow process for release under the Medical
Parole Law; 2) the need for discharge
planning to include housing and support
services for parolees; and 3) developing
conduits for providing food and clothing to
prisoners with HIV/AIDS. Anyone with
insights is urged to contact the AIDS in
Prison Project at (212) 254-5700.

In the meantime, I invite all prisoners to
unite against AIDS and help calm the echoing scream of frustration, despair and fear
of our fellow prisoners with AIDS.
Mike Flashner-Pondville Correctional
Center, Massachusetts
The AIDS Education Awareness Program
at NCCI Gardner wants to start a nationwide Peer AIDS Education Organization
and encourages all peer AIDS educators to
participate in forming a network for better
medical care for HIV/AIDS and terminally
ill prisoners.
The time is long overdue for peer educators to be heard nationwide. This organization would give every peer run education
program a voice in Congress and the White
House. The United States Supreme Court
has ruled that prisoners have the right to
adequate health care in prison. As peer
educators, we know government action
must be taken to meet these standards.
We all must take exception to statements
from prison officials who say "they're going .
to pass away in prison anyway." We say 95%
of HIV/AIDS-infected prisoners did not get
sentenced to death and we must look at
alternatives to see this doesn't become a
common practice in our nation's prisons. II

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

ublications
_ - - - - L_ _

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

_---L__

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, AIDS, family support, and
ex-offender aid. 10th Edition, publishedJanuary 1993. Paperback,
$30 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
m"ajor institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.)
Updated January 1993. $5 prepaid
QTY. COST from NPP.

_---'----_ A Primer for Jail Litigators
is a detailed manual with practical
suggestions for jail litigation. It
includes chapters on legal analysis, the use of expert witnesses,
class actions, attorneys' fees,
enforcement, discovery, defenses'
proof, remedies, and many practical suggestions. Relevant case
citations and correctional standards. 1st Edition, February 1984.
180 pages, paperback. (Note: This
is not a "jailhouse lawyers" manual.) $20 prepaid from NPP.
1B: The Facts for Inmates
_-----'-__ and Officers answers
commonly-asked questions about
tuberculosis (TB) in a simple
question-and-answer format.
Discusses what tuberculosis is,
how it is contracted, its symptoms, treatment and how HIV
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25.500 copies/$100.
QTY. COST 1,000 copies/$150 prepaid.

Fill out and send with check payable to:

Name

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

Address

THE NATIONAL PRISON PROJECT JOURNAL

Bibliography of Material 011
Women in Prison
lists information on this subi~ct
available from the National Eiison
Project and other sources
concerning health care, drug
treatment, incarcerated mothers,
juveniles, legislation, parole, the
death penalty, sex discrimination,
race and more. 35 pages. $5
prepaid from NPP.

_---1-_

1990 AIDS in Prison
Bibliography lists resources
on AIDS in prison that are
available from the National Prison
Pr(i,ject and other sources,
in(}iuding corrections policies on
MDS, educational materials,
medical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

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

QTY. COST

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

_
_

City, State, ZIP

_
SPRING 1993

23

he following are major developments in the Prison Project's litigation program since January 15,
1993. Further details of any of the listed
cases may be obtained by writing the
Project.

T

Casey v. Lewis, filed on behalf of
Arizona state prisoners, challenges legal
access, health care and practices surrounding assignments to segregation. On
March 19, the district court declared the
mental health care system unconstitutional, rejecting the state's claim that budget
constraints made deficiencies unavoidable. The court found that medical and
dental care had been unconstitutional at
the time of filing. Due to improvements
made since the filing of the case, the court
found that medical and dental care were
currently constitutional, but ordered the
state to submit periodic status reports on
these areas. On April 6, the court ruled
that the state's failure to make facilities
accessible to mobility impaired prisoners
violated the Constitution.
Duran v. King challenges crowding
and conditions in New Mexico's prisons.

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

On January 29, the district court released ,,'
from federal court supervision three state. .
prisons that had achieved compliance with.;
court-ordered reforms. However, serious;.~(.
problems remain at the state penitentiary,
Hadix v. Johnson-The National
Prison Project appears in the medical and
mental health care portion of this case
which concerns conditions of confinement
at the State Prison of Southern Michigan in
Jackson. Following evidentiary hearings in
March, the court ordered relief in several
areas, including staffing and tuberculosis
control.
Hamilton v. Morial challenges overcrowding and conditions at the Orleans
Parish Prison; the municipal jail for the
City of New Orleans. The judge recently
ordered defendants to discontinue their
policy of charging prisoners for over-thecounter medications. In addition, plaintiffs' attorneys convinced defendants to
drop their policy of charging prisoners a
copayment for sick call.
Palmigiano v. Sundlun challenges
overcrowding and conditions in the Rhode

Island prisons. In February, the Governor's
new Commission to Avoid Future Prison
Overcrowding proposed legislation to hold
the prisoner population at certain agreedto limits. The packY.ge calls for use of
alternatives such ~ intensive supervision,
halfway houses MU drug treatment programs, night and weekend court to expedite arraignments, and the creation of a
committee to supervise population levels.
Roe v. Meachum-This case was filed
on February 24, 1993 by the National
Prison Project and the Connecticut Civil
Liberties Union on behalf of all prisoners
housed in the Bridgeport (CT) Community
Correctional Center. Plaintiffs claim that
deficiencies in the mental health care system amount to a violation of prisoners'
constitutional and statutory rights.

u.s. v. MichiganIKnop v. JohnsonThis is a state-wide Michigan prison conditions case. In Knop, the Supreme Court
denied plaintiffs' petition for certiorari on
a racial slurs issue on March 8. On March
4, the trial court ordered the defendants to
submit a compliance plan for legal access
by June, 1993.

Nonprofit Org.
U.S. Postage

PAID
Washington D.C.
Permit No. 5248

Printed on Recycled Paper

24

SPRING 1993

THE NATIONAL PRISON PROJECT JOURNAL