A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 8, NO.3, JULY 1993 • ISSN 074.~-2655
;'

~i>

'I

Liberian Lawyer "Always Knew" He Would Be fhrown injail
fter two years as an NPP
senior lawjellow,
Mohamedujones was
recently hired as an attorney jor
the NPP. JOURNAL editorjan
Elvin's profile ojMohamedu in
this issuejocuses on his life in
his home country ojLiberia,
and his experiences with the
devastating changes that have
taken place there over the last
two decades.

A

JE: The political situation in
your country, Liberia, has affected
the direction in which your life
has gone. As a lawyer in Liberia,
you did quite a bit of commercial
work; yet today you find yourself
at the Prison Project representing
prisoners. How did you get from
Mohamedu Jones meets with former Prison Project attorney Adjoa Aiyetoro.
there to here? Maybe you should
begin at the beginning and tell us
Liberian" has dwindled. There has also
about the political situation in Liberia.
fathers had several ideals when they
been a lot of-I hate to use the wordreturned from America: democracy, the
MFJ: You could say that Liberia came of
intermarriage, but there have been mareducation of the indigenous people of
age in July 1971 when President [William
riages of people who were descendants of
V.S.] Tubman, who ruled the country for
Liberia, and the introduction of
the returnees with people who always were
27 years in .;t sort of fraternalistic, "benevChristianity. They failed on all three. They
olent" dictatorship, died in a clinic in
never instituted democracy, although they
there, and their kids are Liberians.
London. Liberians of my generation had
had all the facades. They had a Supreme
never known another president; so the
Court. If you read some of the Supreme
country realized that something had
Court opinions of Liberia, there's citations
changed. Vice President William R. Tolbert
to Marbury v. Madison, etc. They had a
succeeded constitutionally, but the country
legislature, a senate, and representatives.
was never the same. President Tolbert
But they did not institute a democracy. It
ruled from 1971 until the coup of 1980.
was certainly a big mistake to totally domiDuring that time the country began to go
nate the indigenous people.
through an evolution. Things that people
JE: Weren't the founders called
had taken for granted-the lack of a really
"Americo-Liberians" at one time?
free press, a legislature that more or less
MFJ: Yes, and there was a time when
did whatever the president wanted, a
that term was positive, at least in their own
Supreme Court that was not as indepenminds. After World War II, however, peodent as the Constitution envisioned-people began to resent the term. For one
ple began to question these things and
thing, it clearly showed an "elite" status.
political action began. Liberia's founding
Gradually the designation "Americo-

JE: Was Tolbert really interested in
democracy?
MFJ: I believe he was. People around
him slowed him down. Unfortunately, he was
a bit indecisive. He was brutally murdered
on the night of the coup, April 12, 1980.
JE: How did you hear about that?
MFJ: The radio simply said he had been
assassinated. This is the modus operandi
of coups in Africa. You hear gunfire during
the night, the next morning the radio
announces a new government, which will
have "liberation" or "redemption" in its
name-something it never lives up to, by
the way. And after the coup I was arrested.
JE: How did they treat you when you
were arrested?
MFJ: When you're arrested for political
reasons the first thing they do to you is
they take off all your clothes. This is the
humiliation, public humiliation. There is
no way you c~n walk with dignity without
clothes. No way. Your shoulders droop and
your head will hang. Even as I talk about it
now I shudder because I remember very
Vividly the humiliation of that experience. I
was taken to the military stockade. This
guy sitting behind a desk said, "Where did
you work?" I said, "The True Whig Party."
He said, "What did you do there?" I disingenuously said, "Secretary." Well, I was an
assistant secretary of political ~airs. He
said, "We don't want you, you're a little
guy." I said "I don't have on any clothes."
Somebody handed me some clothes and I
put them on and went back home.
JE: SO, it wasn't like they had a list.
MFJ: Well, they did, of the President's
cabinet, his closest advisors. Aweek later,
I was sitting home listening to the BBC,
and a report comes over the air that 13
former government officials had been executed. I tell you, I was stunned. These people were of no threat whatsoever. I knew
some of them personally.
JE: Were they cabinet people, legislators?
MFJ: They were both. The head of the
Senate was executed, the Speaker of the
House, whom my father had always considered his mentor. My wife's first cousin,
who was the Minister of Commerce...he was
a man of 35, the President of the Senate was
75-it covered the whole spectrum.
JE: Did you feel like it was getting a little
close to you, too?
MFJ: Personally, no, but it made me
realize that the country was in serious
trouble. These 13 people were taken out
on the beach and shot without any due
process. I say that somewhat exaggeratedly-they did go through some kind of
court martial. But eventually the military
leaders tired of that and said it was wasting
too much time.
2

JULY 1993

JE: So they just started killing people?
MFJ: Yes, right. 1\vo or three people
who were executed never stood before this
tribunal.
JE: What did that tell you about Samuel
Doe [the coup leader]?
MFJ: What you saw was cold-blooded
brutality. These were people who were not
prepared to live by the law. Something was
wrong, seriously flawed, about this thing.
Eventually, however, a friend was able to '.'
convince me that it was perhaps the best ;.j::
opportunity we'd ever had to straighten up
the country. He persuaded me that these
"excesses," as they were termed, were
flukes. And also that Doe and his council
were serious and honest and dedicated to
the country-and that these awful things
had now passed. I was convinced to work
for the new government. I certainly wanted
to see it do better. So, persuaded that I
could help, I began working in the presidential office. Another argument that a lot
of people made was that if we didn't participate to try to get this thing on a rational
course, then we would have abdicated our
responsibility to the country and then, how
could we blame these people?
JE: Then you'd be leaving it to them.
MFJ: And we all knew they didn't know
better. They hadn't been exposed to the
rest of the world. So I went to work in the
presidential office for a year. After a year
my skepticism returned in full.
JE: What was it that bothered you?
MFJ: Well, the corruption. I began to
see that Doe's people were simply concerned with gaining personal wealth. Also,
when you came to work you heard soldiers
talking about what they did last nighttales of death, rape and other forms of
inhumane treatment of citizens. I even
began to get concerned about being
around there. Looking to the future-if
this thing collapses, I would not be able to
convince anyone that I was trying to help
my country. Later, I got an opportunity for
a position with the Liberian Produce
Marketing Corporation, and left.
JE: To go back to Doe for a momentwhat was he like?
MFJ: He was certainly charismatic, and
was a fast learner. For a man who had not
completed high school (from all evidence,
even though he claimed he did) he transformed himself pretty qUickly. He understood power. He learned some of the
nuances of diplomacy. He certainly learned
to speak much, much better. So Doe did
change-on the surface. One of the dangers of superficial education is that the
philosophical grounding that would temper a very powerful person was absent.
The moral compasses that a lot of us have

~.

as we're growing up, taught by parents,
grandparents, reading history, learning
about "great men" were all absent from
his life. So he was never a well-rounded
person. He literally could do anything he
wanted to do in Liberia.
JE: Like what?
MFJ: He could take the entire treasury
and put it in his briefcase if he wanted to.
JE: What kinds of things did he do?
MFJ: Well, he took a lot of the treasury
and put it in his briefcase. He could cause
the death of people, which he did, both
legally and illegally.
JE: What wastfle political climate? Were
people getting thrown in jail?
MFJ: There were times when the country
was optimistic that we could get over this
hurdle. Then there were times when the
evil was so glaring that everybody became
gloomy and pessimistic. I was thrown in
jail myself by Doe, eventually. I always
knew that might happen. In [February]
1985, I uttered criticisms which got back
to him. He then had me brought to the
presidential office and asked me exactly
what had occurred, and I told him. 1\vo
days later the SSS, the Special Security
(can't. an page 15)

Editor: Jan Elvin
Editorial Asst.: Jenni Gainsborough
Regular Contributors: John Boston,
Russ Immarigeon
Alvin J. Bronstein, Executive Director
The National Prison Project of the
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THE NATIONAL PRISON PROJECT JOURNAL

in the United States dates back to the 18th
century, it was not until the early 1950s
that they began to be used with any sort of
frequency. The Boggs Acts of the 1950s
started the trend toward harsher mandatory sentences. 4 Following the lead of federal
legislators, some states enacted what
became known as "Little Boggs Acts."
Judges handed down mandatory prison
sentences of up to 40 years in some
instances. s
The justifications given for the enactment of man4atory sentences during earlier periods 'Y~re almost identical to the
justificationifoffered (and discredited)
today: deterrence and reduction of sentencing disparities. 6 It is poignantly evi-

Mandatory Minimum Sentences
Open Up a Pandora's Box
he "war" on drugs has become an
insidious metaphor for a militaristic
approach to addressing social problems. In waging this "war," the sky is the
limit in law enforcement's attempt to conquer the perceived enemy-primarily people of color and the poor.
The resultant disintegration of civil liberties is evidenced by the gutting of safeguards against unreasonable
searches and seizures, the weakening of the presumption of
innocence through preventive
detention, the stepping up of disproportionate punishment
through unwarranted civil forfeiture of assets, expansion of the
use of entrapment, abusive treatment of public housing tenants,
police brutality, and the growing
militarization and federalization
of law enforcement.
Mandatory sentencing laws are
prime illustrations of the abuses
this "war" mentality has generated. These laws have unleashed a
virtual Pandora's box of evils
onto society, which have manifested themselves in: (1) the
demolition ofjudicial discretion, whereby mitigating factors
are dismissed and judges are
constrained to impose draconian
sentences; (2) blind adherence
to sentenCing, which, ironically,
results in low-level participants
receiving more time than top
level drug "kingpins"; (3) racial
disparity, whereby Blacks and Hispanics
are charged'with and receive sentences at
or above the mandatory minimum more
often than Whites arrested on the same
charges l ; and (4) prison overcrowding, a
result of the tripling of the federal prison
population since 1980.
Amandatory minimum sentence is a
prison term predetermined by Congress
and automatically levied for a crime primarily involving drugs and firearms. These
laws prohibit judges from considering any
of the facts of a case when sentencing
other than the type of drug and its weight,
or the presence of a firearm. The judge
simply looks at a grid to find the predetermined sentence, and cannot depart from
that sentence. In most cases, the sentence

T

THE NATIONAL PRISON PROJECT JOURNAL

is at least five years and often it is 10, 1~,
20 years or more, for nonviolent, first;'~;
offenders. Because parole has been abgJished in the federal system, the offender
will serve the full length of the sente~ce.
Under the federal system, there are {
approximately 100 mandatory sentencing
provisions contained within 60 statutes,
with 94% of the cases attributed to just
four statutes, largely involving drugs or
weapons offenses. 2

Offense Distribution Among Federal Inmates

May 1993

Drug-related 59%

Other/misc. 12%

.~~ White Collar 1%
" " ' - - - - - Property 3%

Robbery 11%
Firearms, Expl. 6% - - - - - - - '

I

'------Violent 3%

Extortion, Fraud 5%
Source:

Julie Stewart, president of Families
Against Mandatory Minimums (FAMM) ,
began mobilizing on this issue when her
brother, convicted on marijuana charges,
was sentenced to a five-year mandatory
prison term. "It just floored me that he
was getting that kind of sentence for marijuana," Stewart protested. "I'm not saying he's innocent. I'm sayingit's not
appropriate."3
Because judges are barred from considering mitigating factors under mandatory
minimum provisions, they are often forced
to impose lengthy sentences which are
unreasonably harsh. Such sentences apply
regardless of the role of the defendant in
the offense and of other factors traditionally found relevant to sentencing.
Although the use of mandatory sentences

u.s. Bureau of Prisons

dent today that the mandatory sentences
of the past failed to produce a reduction
in crimes involVing drugs. 7 Thus, in 1970,
Congress enacted the Comprehensive
Drug Abuse and Control Act which
repealed most mandatory minimums containing drug violations.
In his testimony against mandatory minimums at that time, Dr. Stanley Yolles, then
director of the National Institute of Mental
Health, explained, "I feel that judges have
to be free to deal with violators of drug
laws as individuals, not as a class of criminals. In my field, treatment is always tailored to the individual's needs."s
The repeal of mandatory sentences,
however, was short-lived. Growing public
frustration with crime and the heroin epidemic of the 70s fueled the government's
JULY 1993

3

"war on drugs" and gave legislators the
excuse to re-energize mandatory minimum
sentences. By 1983, 49 of the 50 states
had passed mandatory minimum provisions. The following year Congress,
through the Comprehensive Crime Control
Act of 1984, began reenacting compulsory
sentencing laws. Since then, on the average of every two years, mandatory minimums are being enacted on the federal
level.
The Anti-Drug Abuse Act of 1986 allows
the length of the sentence to be tied to the
amount of drugs involved in the case. This
creates what has been characterized as
"cliffs" in sentencing based on small differences in the weight of drugs, which
result in sharp rises in sentences despite
the fact that the defendants are similarly
situated. For example, a first offender convicted of simple possession of 5 grams of
crack cannot be sentenced for longer than
one year, whereas a first offender convicted of simple possession of 5.01 grams of
crack must receive a sentence of at least
five years.
Tying the length of the sentence to the
amount of drugs also permits the weight to
include the carrier and any substance used

Mandato

to dilute the drug. The sentencing results
of this policy have been catastrophic. The
Supreme Court, which upheld the validity

((I'm not sayin
innocent. I'm s
irs inapprop
of the practice, acknowledged that the
sentences for selling a specific quantity of
LSD could differ by over 2,000%, based
solely on the method of marketing. 9 For
example, a person convicted of selling
LSD in liquid form - the purest form would be sentenced to 10-16 months.
However, since the drug is more widely
distributed in a diluted form using a blotter paper carrier or on sugar cubes, the
weight of the substance significantly
increases, and the sentence skyrockets.
With blotter paper, the weight of the substance triples and the sentence would
increase to 63-78 months; with sugar
cubes, the weight would spiral and the
penalty would leap to 188-235 months.

Sentences: C
ney by manufacturing metham
the DEA agents continued to
nths he agreed to participate.
n with him for protection. He al
se he was scared of the underco
the lab site, the DEA showed hi
tamine step by step. After some
ywas arrested. He received an a
sessing the gun.
whose clients were similarly s
cal store with a hidden tape rec
's tactics to encourage people t
ctivity. Their conversation was
onicle.

Allen and Sharon G
respectively, for growi
offense for both.

Allen is 27 years old and Sha
investor who owned 30 small h
which the government didn't
growing marijuana in his re
When they were arrested they
puriishment for their involve
ally growing the marijuana an
felony record's. Sharon, wh
the same charges. At their.
tant prosecutor pleaded with
prosecutor refused. In additio
and Allen lost their prim
ties that had the most equ

The extreme disparity of such sentences
primarily affects players at the lower end
of the distribution chain. The U.S.
Sentencing Commission recently recommended that Congress amend the
Sentencing Guidelines to correct this
unwarranted disparity. 10
Equally egregious, the Omnibus AntiDrug Abuse Act of 1988 provides a mandatory sentence of five years for the possession of more than five grams of crack
cocaine. 11 The sentence for crack, however, is 100 times greater than for powder
cocaine. No scientific distinction exists to
suggest that crack is more addictive than
powder, and there is no medicallscientific
distinction between these forms of
cocaine. 12 The fact that has been recognized, however, is that crack cocaine is
used principally by African Americans,
while powder cocaine is used primarily by
Caucasians. 13
The substantially higher term for possession of a form of cocaine more likely to be
used by Blacks than the form more likely
to be used by Whites discriminates on the
basis of race in violation of the equal protection clause of the Fourteenth
Amendment. 14 Barbara Piggee, vice presi-

en was a real estate
ed legitimately,
of his tenants were
his knowledge.
and received no
gh they were acturee have prior
, was convicted on
ge and the assisfor leniency. The
ntences, Sharon
5 of their proper-

, soon to be serving a 10-year s
to possess LSD. First offense.
Timothy Evans, serving a 1
cy to manufacture methamp
a gun. First offeuse:

Timothy is a 23-year old
college student from Hou
store to purchase a student ch
undercover DEA agents who 0

4

JULY 1993

y emp,loyee and
nt to a chemical
d was solicited by
e. They told him he

Christian
Francisco.
him out at
Christian
could sell
the judge
ing the LS

ar-oId "Dead Head" from San
ars undercover DEA agents sought
ead concerts and asked to buy LS
;ntroduced the agents to someone
LSD and was arrested. At his senten
clude the weight of the paper cont .
ning his sentence and sentenced .

THE NATIONAL PRISON PROJEG JOURNAL

dent of Families Against Discriminatory
Crack Laws, feels insulted by the disparity.
"We just want to be treated fairly," she
asserts, "the same as our White counterparts."
The Omnibus Anti-Drug Abuse Act of
1988 also extended mandatory penalties
to "conspiracy" to commit drug offenses.
This provision has had the paradoxical
effect of pulling in first-time low-level
players, sometimes referred to as
"mules," to the mandatory sentencing
scheme. At the same time it allows the
major participants to serve little, if any,
time, because they are in a better position
to provide valuable information on other
prosecutions. The only way a mandatory
sentence can be avoided is by prOViding
substantial information to the prosecution
in exchange for a reduced sentence. The
high-level participant can meet this burden, but the ordinary "Joe Blow" seldom
has information that can be used as a bargaining chip.
In 1984 Congress passed the Sentencing
Reform Act to reduce unwarranted disparity in sentencing, increase certainty and
uniformity, and root out inordinate
leniency. The U.S. Sentencing

Commission was created the following
year to help accomplish these goals.
However, before the Commission could
develop and provide its recommendations for sentencing, Congress, spurred
by public concern about drugs and violence, leaped at the chance to pass astfonomical sentences to demonstrate its:·~.
toughness on c r i m e . ; > -,
The Sentencing Commission thus drat:ted its guidelines to accommodate t!1ese
mandatory minimum provisions bY:,'
anchoring the gUidelines to them. In
1991, the Commission completed a study
in response to questions by Congress
concerning the effect and compatibility
between the gUidelines and mandatory
sentences. The Commission found that
many of the problems associated with
mandatory minimums in the past have
resurfaced with them today:
• Mandatory sentences are disparately applied, with non-Whites
being more likely to receive them.
• The uneven application of
mandatories has obstructed the
deterrent value ofmandatory
sentences.
• Mandatory minimums create

"unwarranted sentencing uniformity" by not allowing consideration ofmitigating circumstances.
• Because the power to place
charges lies with prosecutors,
mandatory minimums usurp the
sentencingpower ofthe court and
gives it to the prosecution.
Within the last two years, opposition to
mandatory minimum sentences has
mounted. Overwhelmingly, federal
judges surveyed as part of the 1991
Sentencing ~ommission report perceived
mandatory minimum sentencing requirements as tOb harsh. Federal District
Judge J. Lawrence Irving of San Diego, a
Reagan appointee who had sentenced
more than 1,500 felons, resigned in
protest against the mandatory sentencing
laws, saying: "I can't continue to give out
sentences that I feel in some instances
are unconscionable." 15
Senior U.S. District Judges Whitman
Knapp of Manhattan and Jack Weinstein of
Brooklyn recently announced their intention to boycott drug cases because of the
high sentences they are forced to impose.
In an impassioned presentation at the
Cardozo School of Law, Judge Weinstei~

Kenneth Harrison, servin
spiracy to sell 1000 poun

Ken is a 36-year-old father
is a karate instructor and ha
over the years. He was conviCte
pIe who were caught with '
large amounts of cash, niCe
informants testified that the "
Ken's name in connection with
ever foutid on Ken's person or
given sentences of 2 years eilc

Bobby Joe Ward, serving 6
776 marijuana plants. First

BobbyJoe is a 60-year-old retir
disease from Kentucky. Last ye
son's marijuana patch wher
only there to keep his son c
mendation of his lawyer. At sen
to consider BobbyJoe's disabili
but the guidelines prevented .
drug and its weight.

THE NATIONAL PRISON PROJECT JOURNAL

with black lung
d his son to his
. He said he was
ilty on the recomsaid he would like
rd in his sentence,
g anything but the

JULY 1993

5

complained that he was forced to sentence
a poor immigrant woman from West Africa
to 46 months in a drug case and that the
effect of this mandatory sentence on her
young children will be "devastating."16
That same day he was compelled to sentence a man to 30 years because it was
his second drug offense. Citing depression at "being a party to the cruelty connected with the war on drugs," he
stressed:
I need. ..a restfrom the oppressive
sense offutility that these drug
cases leave... .I simply cannot
sentence another impoverished
person whose destruction has no
discernible effect on the drug
trade. I7

U.S. District Judge Stanley S. Harris had
to send Sylvia Jenkins, a Washington, D.C.
secretary, to jail for five years because her
son had hidden 120 grams of crack
cocaine in her house. Judge Harris complained, "It's killing me that I'm sending
so many low-level offenders away for all of
this time.,,18 Circuit Court Judge Audrey
Melbourne of Maryland says, "The legislature has usurped the function of the judicial branch of the government. This is
about politicians trying to show that
they're tough on drugs so they can get
elected again."19
The United States Judicial Conference
and all 12 Circuit Courts of Appeal have
passed resolutions in opposition to the
concept of mandatory minimum sentences.
The Judicial Conference's resolution urges
Congress to "reconsider the wisdom of
mandatory minimum sentence statutes."20
The Sentencing Uniformity Act introduced
by Representative Don Edwards (D-CA) ,
does just that by abolishing mandatory
minimums throughout the federal system. 21 Attorney General Janet Reno has
also criticized the wisdom of mandatory
minimum sentences and contends that filling up prison cells with nonviolent offenders is not the best use of prison cells
because she claims it causes violent criminals who are not subject to mandatory
penalties to be released early.22
In a recent congressional hearing on
prison overcrowding, Kathleen M. Hawk,
director of the Federal Bureau of Prisons,
6

JULY 1993

estimated that 90% of the growth in the
Bureau's prison population during the last
seven years is directly attributable to the
combined effect of mandatory minimums
and the sentencing gUidelines - statutory
changes which have led to a reduction in
the use of probation and an increase in
prison time. 23 In addition to the social
and moral costs that result from the
warehousing of young people of color, the
financial cost of imprisonment increaseq
by mandatory penalties, and these costs.':.'
are passed on to the taxpayer. The aver~'
age cost of incarcerating one federal prisoner is $20,072 per year, about $55 per
day.24
In response to a request by Attorney
General Reno for an examination of policies that would both decrease the prison
population and benefit the public, FBOP
director Hawk testified as follows:
A...hypothetical strategy under
study that would limit the growth
ofourfuture inmate population is
to shorten sentences, especially for
non-violent drug offenders. Under
this scenario, we recognize that at
least three significant changes to
the current system should be considered: there would have to be a
change to mandatory minimum
sentences; the u.s. Sentencing
Commission would have to revise
its drug guidelines; and some kind
ofprovision would have to be
made to affect the sentences of
offenders already adjudicated and
in custody, for example a re-sentencing procedure. This last provision would be to insure equity, so
that sentence reductions would be
applied retroactively.
The "war on drugs" is no solution to
social problems; it only compounds them.
At this point, the best way to begin solving
the problems of prison overcrowding, irrational sentencing, racial disparities, exorbitant costs, and other injustices unleashed
by the Pandora's box of mandatory minimums is to repeal them.•

Nkechi Taifa is legislative counselfor the
American Civil Liberties Union's
Washington office. Fredericka
Poindexter and Sameer Ashar assisted
with research for this article.
I See Special Report to the Congress: United States
Sentencing Commission, Mandatory Minimum
Penalties in the Federal CriminalJustice System,
(Aug. 1991), at 76. [hereinafter, "U.S. Sentencing
Commission Report."] This report is referred to
throughout the article.
221 U.S.C. §841 (manufacture and distribution of
controlled substances), 21 U.S.C. §844 (possession

of controlled substances), 21 U.S.C. §960 (importation/exportation of controlled substances), and 18
U.S.C. §924(c) (enhancements for carrying a
firearm during the commission of a crime involVing
drugs or violence).
3"Let the Punishment Fit the Crime," FAMM-Gram,
Issue No.5, (MarchiAprilI992).
,.~'

,";

4 Pub.

L. No. 82-255, 65 Stat. 767, 1951.
; Id. at 1.
6 See U.S. Sentencing Commission Report, supra
note4, ati.
7 Dan Baum, "The Drug War On Civil Liberties", The
Nation, Oune 29, 1992), at 886.
8 Gertrude Samuels, "Pot, Hard Drugs and the Law",
New York Times Ma!Ifzine, (February 15,1970), at
14-16.
.:
9 See Chapman v. aiiited States, 111 S.Ct. 1919
(1991).
10See Federal Register (Vol. 58, No. 86, Part V)
Amendment 14, May 6, 1993.
llSee Pub L. No. 100-690, 6470(a), 102 Stat. 4377
(1988).
12 See Proffer of Dr. George Schwartz, attached to
Defendant's Motion to Declare Provisions of 21
U.S.C. § 844(a) Unconstitutional, U.S. v. Maske, Cr.
No. 92-0132-01 (TFH) (D.D.C.).
13 A1992 U.S. Sentencing Commission representative
sample of all drug cases received for FY 1992
revealed that of all defendants sentenced for crack
cocaine, 92.6% were Black, as compared with 4.7%
of White defendants. On the other hand, 45.2% of
defendants sentenced for powder cocaine were
White, as compared with 20.7% of Black defendants.
With respect to simple possession only, 100% of the
defendants sentenced for crack were Black. See U.S.
Sentencing Commission, Monitoring Data Files,
(April I-July 31, 1992).
14 See generally, State v. Russell, 477 N.W. 886
(Minn. 1991). The Minnesota Supreme Court
upheld the lower court's decision which invalidated
the disproportionate treatment between crack and
powder cocaine under the equal protection provisions of the State constitution. See also, United
States v. Simmons, 964 F.2d 763, 767 (8th Cir.
1992), whereby the court stated that it was
"bound by precedent" to reject arguments that the
sentencing scheme was constitutionally disproportionate. The court advised, however, that were it
writing from a "clean slate," it might have accepted
as valid that the 100:1 ratio between crack and
powder cocaine constituted disproportionate
punishment.
15 Drug Policy Foundation, The Drug Policy Letter,
(MarchiAprilI991), at 7.
16 Address by Judge Jack B. Weinstein, "Humanizing
Federal Guideline Sentencing by Departures,"
Symposium on Departure Advocacy Under the
Federal Sentencing Guidelines," Cardozo School of
Law, (April 14, 1993).
17Id.
18 The Drug Policy Letter, supra, note 54, at 7.
19 Debbie M. Price, "Raising the Ante on Crime," The
Washington Post, (April 12, 1990), atAlO.
20 See U.S. Sentencing Commission Report, p. 90.
21 See Sentencing Uniformity Act, H.R. 957.
22 Michael Tackett, "Attorney General Signals Drug
Policy of '80's is Taking ATurn,"Chicago Tribune
(May 5,1993).
23 Statement of Kathleen M. Hawk, Director, Federal
Bureau of Prisons, before the Subcommittee on
Intellectual Property and Judicial Administration,
House Judiciary Committee, (May 12, 1993).
24 See Bureau of Prisons, "State of the Bureau 1991,"
(Summer 1992).

THE NATIONAL PRISON PROJECT JOURNAL

1

A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 8, NO.3, JULY 1993 • ISSN 074&2655

Cruel and Unusual
Punishment
In Wilson v. Seiter, _ U.S. _ , 111 S.Ct.
2321 (l991) , the Supreme Court held that all
Eighth Amendment "conditions of confinement" claims require a showing of deliberate
indifference as well as proof that the conditions deny prisoners "the minimal civilized
measure of life's necessities." Rhodes v.
Chapman, 452 U.S. 337, 347 (l981). At the
same time the Court made deliberate indifference central to Eighth Amendment analysis, it
said nothing about its meaning.
The Ninth Circuit has placed a new and
important gloss on this nebulous term in
jordan v. Gardner, 986 F.2d 1521 (9th Cir.
1993) (en bane). In this decision, the en
bane court superseded an earlier panel decision and affirmed the district court's judgment enjoining the performance of intrusive
pat frisk searches of female inmates by male
staff. It relied on a record showing that the
vast majority of female inmates had a history
of sexual abuse at the hands of men and on
the testimony of ten expert witnesses, including staff members from the prison as well as
social workers, psychologists, an anthropologist and a correctional expert. The district
court had cQ.ncluded that the searches, even if
conducted properly, resulted in a "high probability of great harm, including severe psychological injury and emotional pain and suffering, to some inmates."
Unlike most prison search cases,jordan
was decided on Eighth Amendment rather
than Fourth Amendment grounds. The court
reasoned that the privacy questions presented
by the plaintiffs' claims were "difficult and
novel," and that the gravamen of their complaint was the pain and suffering inflicted by
the searches, making the Eighth Amendment a
more appropriate ground for decision.
jordan is important for more than its result.
It presents a kind of Eighth Amendment claim
that has not been much explored since Wilson
v. Seiter: a challenge to a purposeful policy
THE NATIONAL PRISON PROJECT JOURNAL

that prison officials have instituted to serve
identifiable penological purposes.
Deliberate indifference is essentially a tort
concept, described in Wilson v. Seiter as a
"culpable state of mind" and equated by most
lower courts with some degree of recklessness. See, e.g., Berry v. City ofMuskogee,
900 F.2d 1489,1495-96 (lOth Cir. 1988). It
has been most frequently applied to constitutional torts, claims by individual inmates or
other persons that they were injured by particular acts or omissions of prison staff or
other government actors.
The courts have by fiat stretched deliberate
indifference to address challenges to institutional conditions (most often medical care)
by defining the term to include "systematic or
gross deficiencies in staffing, facilities, equipment or procedures." Ramos v. Lamm, 639
F.2d 559, 575 (lOth Cir. 1980), cert. denied,
450 U.S. 1041 (l981); accord, Harris v.
Thigpen, 941 F.2d 1495, 1505 (lIth Cir.
1991). This language, however, speaks primarily to omissions and failures, and practices to which it is applied are seldom
defended in terms of affirmative policy choices. Pre- Wilson Eighth Amendment challenges
to purposeful prison practices did not
address deliberate indifference or any other
mental element, but simply balanced the
severity of the resulting conditions against
their penological justifications. See, e.g.,
Bruscino v. Carlson, 854 F.2d 162 (7th Cir.
1988), cert. denied, 491 U.S. 907 (1989).
The jordan opinion rejects the view, asserted by the dissenting judges, "that the deliberate indifference standard should not be
applied to the adoption of prison policies,
because officials who institute policies generally do so after carefully examining the consequences." 986 F.2d at 1529. Careful consideration is only part of their obligation.
Prison authorities are also required to
afford sufficient weight to the constitutional rights of individuals. The failure
to treat constitutional provisions with
appropriate respect constitutes deliberate indifference to the rights the policy seeks to limit. If a prison administrator decides to ignore grave suffering
because of irrelevant or unimportant

~
concerns,Athat administrator demonstrates..a;,deliberate indifference to the
harm being done and to the constitutional principle at stake. Id.
Here, deliberate indifference analysis has
turned into a form of interest balancing. As
stated by the court, the balance appears heavily tilted in favor of prison officials; they lose
if they "ignore great suffering because of
irrelevant or unimportant concerns." But it is
stated less categorically than the balancing
test of Turnerv. Safley, 482 U.S. 78 (l987),
which requires deference to officials if changing their practices "will have a significant
'ripple effect' on fellow inmates or on prison
staff," and requires prisoners to "point to .an
alternative that fully accommodates the prisoner's rights at de minimis cost to valid
penological interests." Id. at 89-91. Perhaps
more importantly, the determination of what
is "irrelevant or unimportant" imposes far
less structure and constraint on the district
court than does the four-factor test of Turner.
In this case, the court's task of interest balancing was advanced by the fact that the
defendants had operated under the preliminary injunction for three years, after only one
day of the cross-gender searches. The majority notes, "At trial, the prison officials' own
witnesses testified that not a single bid had
been refused, promotion denied, nor guard
replaced as a result of the ban on routine
cross-gender clothed body searches." 986
F.2d at 1527. Although security concerns had
been voiced earlier, "these concerns have
been met by the establishment of random and
routine searches by female guards." Id. Thus,
in the majority's view, the defendants in effect
argued "that it is proper to inflict serious psychological pain on the inmates because otherwise it may be necessary to interrupt the
lunch periods of female guards, periods during which they are on duty." Id. at 1530.
This construction of the record was vigorously disputed by the dissenting judges,
whose arguments both of fact and of law
would have presented tempting grounds for
review by the Supreme Court. However, no
petition for certiorari was filed, and the judgment is now final.

JULY 1993

7

PLEADING
Arecent Supreme Court decision about
pleading requirements in civil rights cases
has an importance beyond its rather dry surface. In Leatherman v. Tarrant County
Narcotics Intelligence and Coordination
Unit, 113 S.Ct. 1160 (1993), the Court
rejected the "heightened pleading standard"
imposed on civil rights cases by the Fifth
Circuit, at least in connection with claims of
municipal liability. This standard, initially
stated in connection with claims against individual government defendants, required complaints to "state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official
cannot successfully maintain the defense of
immunity." 113 S.Ct. at 1163, quoting Elliott
v. Perez, 751 F.2d 1472, 1473 (5th Cir.
1985).
The Court stated that "it is impossible to
square the 'heightened pleading standard'
applied by the Fifth Circuit in this case with
the liberal system of 'notice pleading' set up
by the Federal Rules [of Civil Procedure] ,"
which require only "a short and plain statement of the claim showing that the pleader is
entitled to relief." Id., quoting Rule 8(a)(2),
Fed.R.Civ.P. While the Rules do require some
matters to be pleaded with particularity, see
Rule 9(b), Fed.R.Civ.P., municipal liability is
not one of them, and any stricter requirement
for claims of municipal liability "must be
obtained by the process of amending the
Federal Rules, and not by judicial interpretation." Id.
This decision should have considerable
practical impact on the strategic balance in
some jail and police misconduct litigation.
The conventional wisdom among civil rights
litigators stresses the importance of having a
solvent institutional defendant in the case,
not only to ensure the collection of any judgment that is recovered, but more importantly,
to place before the jury a defendant who is
less sympathetic than the feckless and poorly
paid municipal enwloyees who are often the
direct perpetrators of constitutional torts.
However, getting a municipal liability claim
past the summary judgment stage generally
requires considerable discovery. Aheightened pleading requirement creates a "Catch22" for the litigator: the plaintiff with a reason to believe there is a municipal policy
cannot sufficiently plead the case without
discovery, but cannot obtain discovery without a sufficient pleading.
The question that is not reached in
Leatherman is whether the result will be different in cases involVing individual defendants. There, the heightened pleading standard has been justified by the existence of
official immunity defenses and by the
Supreme Court's holding that such defenses
8 JULY 1993

are immunities from trial and discovery and
not just from liability. Elliott v. Perez, 751
F.2d at 1473; see Puerto Rico Aqueduct &
Sewer Authority v. Metcalf & Eddy, Inc., 113
S.Ct. 684, 687-89 (1993); Mitchell v.
Forsyth, 472 U.S. 511, 526-30, 105 S.Ct.
2806 (1985). However, it is difficplt to see
how the reasoning of Leatherman can be
restricted to municipal liability cases, since it
turns on the language of the Federal Rules of
Civil Procedure, and the Court explicitly disavows the power to impose its preferred
result by judicial interpretation. The structure
of immunities applied under §1983 is also a
matter of judicial interpretation-several layers of it, in fact: the Supreme Court's interpretation of Congress's unstated intent with
respect to the immunities recognized by common law courts at the time §1983 was enacted. See Malley v. Briggs, 475 U.S. 335, 33940 (1986). If the Federal Rules' "short and
plain statement" requirement prevails over
judicial interpretation in one context, surely
the same is true in connection with §1983
immunities.
Aheightened pleading requirement may
make less difference to claims against individual defendants than in municipal liability
cases, but it is not inconsequential. Claims of
supervisory liability or other kinds of indirect
liability sometimes turn on issues of administrative practice and organization similar to
those involved in proving a municipal policy.
In addition, any pleading requirement more
stringent than the "short and plain statement"
rule may be beyond the capacities of many
pro se litigants to meet.
In this context, one may suspect a strategy
in this opinion by Chief Justice Rehnquist,
rarely a friend of civil rights plaintiffs. He
observes, "Perhaps if Rules 8 and 9 were
rewritten today, claims against municipalities under §1983 might be subjected to the
added specificity requirement of Rule
9(b)." 113 S.Ct. at 1163. The Leatherman
opinion may be intended to shift the debate
from the courts to the Judicial Conference
of the United States. The civil rights bar
should be alert to the possibility of proposals to revise the Federal Rules' pleading
requirements to the advantage of official
agencies and defendants, and should be
prepared to take the fight to Congress,
which has ultimate authority over proposed
revisions of the rules.

REMEDIES/STATE-FEDERAL COMITY
It has become a commonplace among
institutionallitigators that perpetual federal
court oversight of state and local institutions
is a losing proposition in the long run.
Genuine success, on this theory, consists of
bringing state and local governments to the
point where they can police themselves and

maintain decent conditions through their
own institutions and standards. This philosophy has run into an ironic dead end in a
recent New York State court decision.
The Nassau County Correctional Center on
Long Island has been the subject of protracted federal court litigation, much of it
consisting of the federal appellate court's
efforts to make the district court enforce a
long-standing population cap. See Badgley
v. Santacroce, 853 F.2d 50 (2nd Cir.
1988); Badgley v. Santacroce, 815 F.2d
888 (2nd Cir. 19811),; Badgley v.
Santacroce, 800 F;,2d 33 (2nd Cir. 1986),
cert. denied, 479:U.S. 1067 (1987);
Badgley v. Varelas, 729 F.2d 894 (2d Cir.
1984). The current consent decrees in that
case permit limited double-ceIling pending
the completion of an 832-cell construction
project.
The state Commission of Correction, a
statutorily mandated watchdog agency with
jurisdiction over county jails, had in 1986
and 1988 directed the Nassau County
Correctional Center to eliminate doublecelling, pursuant to Commission regulations
requiring a minimum of 60 square feet of
space per inmate in jail cells. When it
attempted to enforce this direction in state
court, its petition was dismissed on the
ground that the federal court action had preempted the state regulation.
The Appellate Division did not adopt the
pre-emption theory, but it affirmed the result
below, holding that the federal district court
retained jurisdiction over its decree and
questions concerning its implementation or
interpretation. The agency's claim "clearly
implicates" the consent decree and therefore,
the appellate court held, "amounts to an
impermissible collateral attack on the consent decree." New York State Commission of
Correction v. Gulotta, 1993 WL 187077,
_ A.D.2d _ , _ N.Y.S.2d_
(N.Y.App.Div. 1993).
Thus, the state administrative agency having
statutory jurisdiction over enforcement of
state regulations governing a county faCility is
reqUired to apply to the federal court for permission to enforce a state law standard that is
probably higher than any standard directly
enforceable in federal court and that, if
enforced, would probably obviate the need
for further federal court intervention in the
correctional affairs of Nassau County. This
result, which might be described as
"Alphonse-Gaston" federalism, may be a
short-term victory for Nassau County offiCials,
but can only be a long-term defeat for the
overall goal of state and local officials to be
relieved from federal court supervision of
their institutions.

THE NATIONAL PRISON PROJECT JOURNAL

Other Cases
Worth Noting
U.S. COURT OF APPEALS
Pre-Trial Detainees/Use of Force
Valencia v. Wiggins, 981 F.2d 1440 (5th
Cir. 1993). At 1444: Ause of force against a
pre-trial detainee "after the incidents of
arrest are completed, after the plaintiff has
been released from the arresting officer's
custody, and after the plaintiff has been in
detention awaiting trial for a significant period of time" (emphasis in original) is not governed by the Fourth Amendment but by the
Due Process Clause.
The Bell v. Wolfish definition of punishment, which focuses on the existence of an
alternative purpose for a jail restriction and
whether it is excessive in relation to that purpose, "works well for claims of improper
conditions or restrictions, [but] it does not
lend itself to analysis of claims of excessive
use of force in controlling prison disturbances." (1446) Wolfish noted that there is
no reason to distinguish between detainees
and convicts in reviewing security practices.
Therefore detainee use-of-force cases are
governed by the Whitley/Hudson standard
that requires proof of malicious and sadistic
intent. At 1446: "Often, of course, there will
be no evidence of the detention facility official's subjective intent, and the trier of fact
must base its determination on objective factors suggestive of intent." (Footnote omitted)
The trial court credited the plaintiff's testimony that the officer hit his head against the
bars and placed him in a chokehold and that
he later struck the plaintiff while he was
handcuffed and on his knees. The court
awarded $2,500 in damages for scratches,
cuts, and bruises that "were serious, but did
not require medical attention" (1443), and
the appeals court affirms the judgment.
Medical Care-Denial of Ordered
Care/fransfers/Service of Process
Hamilton v. Endell, 981 F.2d 1063 (9th
Cir. 1992). The plaintiff had ear surgery and
was subsequently transferred by air from
Alaska to Oklahoma, despite the recommendation of his surgeon but consistent with a
second opinion obtained from a prison contract physician who did not consult with the
surgeon. The plaintiff alleged that he sustained severe ear damage as a result.
The defendants are not entitled to qualified
immunity on these facts. At 1066:
...The defendants may be correct insofar as prison officials are shielded
from liability to the extent their
actions are made in good faith
reliance on a medical opinion....That,
THE NATIONAL PRISON PROJEO JOURNAL

however, is not the question presented
by this case. This case is more akin to
cases finding deliberate indifference
where prison officials and doctors
deliberately ignored the express
orders of a prisoner's prior physician
for reasons unrelated to the medical
needs of the prisoner...

Pre-Trial Detainees
Pembroke v. Wood County, Tex., 98,LF.2d
225 (5th Cir. 1993). The plaintiffs challenged
jail conditions, most of which had been
remedied by the time the case came to trial.
One named plaintiff's damage claims were
tried to a verdict for the defendants, and the
court then decided the class claims for the
defendants.
Procedural Due Process-Disciplinary
Proceedings (229): "The use of punitive isolation without affording due process is unacceptable and violates the 14th Amendment."
Law Libraries and Law Books (229): A
seven-month deprivation of any access to a
law library was unconstitutional.
Classification (229): Aclassification system that "was not fully utilized.. .in that pretrial detainees were not segregated from convicted felons" was unconstitutional. "....
[F] ailure to adequately classify inmates is a
violation of the Eighth Amendment's prohibition against cruel and unusual punishment."
Publications (229): "... [T]he arbitrary
restriction of reading materials to one bible
without showing a need for such a restriction
based on prison security is an unacceptable
infringement on the prisoners [sic] First
Amendment rights."
Medical Care-Access to Medical
PersonneVMunicipalities
Colle v. Brazos County, Texas, 981 F.2d
237 (5th Cir. 1993). The decedent was
arrested, then slipped and fell in the jail; a
doctor advised jail personnel to monitor his
condition because of his alcoholism, cirrhosis, and possible DT's. He was observed
unable to take his medication or communicate coherently; the midnight shift supervisor
was told to contact the day shift supervisor.
That morning he was observed hitting his fist
and face on the floor, and he died shortly
thereafter.
Aclaim for municipal liability was stated by
an allegation that the Sheriff, the municipal
policy-maker, had a policy of maintaining an
on-duty jail supervisory staff that did not
include anyone with authority to transfer an
inmate to a medical facility. Aclaim was also
stated by an allegation of a policy of inadequate monitoring of pre-trial detainees
amounting to a denial of medical care (245).
These allegations created a jury question
whether the county "adopted policies creat-

ing an obvious risk that pretrial detainees'
constitutional rights would be violated."
(246)
At 246: "We are persuaded that Sheriff
Miller knew of or should have known that if
he staffed the jail with persons having no
authority to transfer a seriously ill detainee to
a hospital, and if he pursued a policy of failing to monitor the critical medical condition
of a detainee, these actions would be constitutionally impermissible."

Use of Forc~-Beating
United States v. Newman, 982 F.2d 665
(1st Cir. 1992). The defendant jail officer
was convicted of violating the civil rights of a
pre-trial detainee by beating him while he
was handcuffed in his cell. Asentence of 60
months' imprisonment and two years' supervised release was within the federal sentencing guidelines. The injury to the victim's
inner ear and the fact that he was hospitalized for six days as a result of severe
headaches, facial bruising, and hemorrhaging
around the eyes and under the scalp supported a finding of "serious bodily injury" for
purposes of the guidelines.
Personal Integrity-Appearance
Quinn v. Nix, 983 F.2d 115 (8th Cir.
1993). The black plaintiffs were compelled
to cut their "shag" haircuts. Several white
inmates were permitted to keep them. Prison
officials claimed that they acted because the
haircuts appeared to be gang-related, but the
district court disbelieved this explanation
because the plaintiffs were not told initially
(or in some cases ever) that this was the reason for the order; because prison officials
did not receive drawings of supposedly gangrelated haircuts from the Iowa Division of
Criminal Investigation until after the order
was given; and because the plaintiffs' haircuts
did not look like those drawings anyway. The
district court found that there was no penological justification for the defendants'
actions, awarded damages of $750 to two
plaintiffs and $300 to two others (117), and
granted declaratory relief that the plaintiffs
could wear shag haircuts so long as there
was no legitimate penological reason to prevent them (118).
The court observes that the Supreme Court
has assumed without deciding that there is a
liberty interest in one's personal appearance.
At 118: "It also appears that ISP, in establishing guidelines for determining what are and
are not acceptable hairstyles, has created a
liberty interest in the inmates' hairstyles."
The district court's finding that prison officials' legitimate penological interest in curtailing gang activity was not their actual motivation was not clear error (118).

JULY 1993

9

Use of ForcelPersonal Involvement
and Supervisory Liability/ Negligence,
Deliberate Indifference and Intent
Buckner v. Hollins, 983 F.2d 119 (8th Cir.
1993). The plaintiff alleged that he was beaten in the state prison reception center by one
officer after a second officer admitted the
first officer to his holding cell. The second
officer allegedly witnessed but did not intervene in the beating. The plaintiff was in the
process of being admitted to state prison after
being delivered from a county jail; the first
officer was from the jail and the second was a
state officer.
The state officer was not entitled to qualified immunity based on his claim that the
plaintiff was not yet in his legal custody. The
plaintiff was in state custody since he had
been delivered there even if the paperwork
was not finished. In addition, the state officer
had the only key to the plaintiff's cell. "Given
the practical reality of the situation, as well
[as] the indications of the relevant Missouri
statutes," the state had at least joint custody,
and the state officer had a duty to intervene.
The officer's duty to intervene was governed by the deliberate indifference standard,
which "has been the test applied in numerous
cases in which a prisoner claims injury (or
aggravation of injury) due to a prison official's failure to act." The allegation that the
defendant failed to intervene while the plaintiff was being beaten, "particularly when
[he] was naked, hand-cuffed, and defenseless," presents a jury question as to deliberate indifference.
The defendant was not entitled to qualified
immunity. Prison officials' "duty to restore
control in a tumultuous situation," their liability for deliberate indifference to prisoners'
serious illness or injury, and their liability for
"failure to protect a prisoner from foreseeable attack or otherwise to guarantee his or
her safety" were sufficiently "fact-specific" to
defeat the immunity claim.
Pro Se Litigatiop/Appointment of

Counsel
Kilgo v. Ricks, 983 F.2d 189 (1Ith Cir.
1993). The plaintiff was transferred after he
filed suit; he used his new address on subsequent correspondence. The court dismissed
for failure to inform it of his change of
address despite the fact that the plaintiff did
so inform it. The dismissal was erroneous.
Nor was the dismissal justified by the plaintiff's failure to complete a pre-trial order
form, since he filled it out as best he could
and sent it back to the court stating that he
did not understand it and renewing his
motion for the appointment of counsel
(193).
The district court should reconsider the
plaintiff's request for counsel. Civil litigants,
10

JULY 1993

including those raising civil rights claims,
"have no absolute constitutional right to
counsel.. ..The key is whether the pro se litigant needs help in presenting the essential
merits of his or her position to the court."
(193) Though this plaintiff's factual and legal
claims were straightforward, other factors
limited his ability to present his claims-"most daunting, ...the district court's insistence that Kilgo prepare a lengthy pre-trial
order and comply with instructions which
assume familiarity with litigation procedures." (193) At 194:
Unless the court is willing to guide pro
se litigants through the obstacle course
it has set up, or to allow them to skip
some of the less substantive obstacles,
it should not erect unnecessary procedural barriers which many pro se litigants will have great difficulty surmounting without the assistance of
counsel.
Disabled/Qualified Immunity/
Damages
Weeks V. Chaboudy, 984 F.2d 185 (6th Cir.
1993). The plaintiff was paralyzed from the
waist down as a result of a conversion reaction. The defendant doctor refused to admit
him to the infirmary, though the accepted
practice was to keep paralyzed prisoners
there, and it was the only place where wheelchairs were permitted. As a result, the plaintiff could not utilize his out-of-cell time,
shower himself, care for his person or clean
his cell. The district court granted summary
judgment for the plaintiff, found his damages
to be $50,000, and reduced them by 90%.
The court of appeals rejects the argument
that a conversion reaction is a psychiatric disorder and cannot constitute a medical need.
At 187: "Paralysis is a medical disorder
whether induced by physical injury or emotional or mental problems. Mental illness is
no less real than other illness." At 188: "We
agree that the squalor in which Weeks was
forced to live as a result of being denied a
wheelchair was clearly foreseeable by Dr.
Chaboudy."
The defendant was not entitled to qualified
immunity. Adecision from another circuit
may clearly establish the law if it "point[s]
unmistakably to the unconstitutionality of the
conduct complained of" and is "clearly foreshadowed" by applicable direct authority, in
this case Estelle V. Gamble.
The district court improperly reduced the
plaintiff's damages by apportioning them
between the defendant and other unidentified
prison personnel who were not defendants,
Le., the security personnel who observed the
plaintiff's condition daily. Federal law applicable under §1983 provides for joint and severalliability for indivisible injuries (189).

Publications
Thompson V. Patteson, 985 F.2d 202 (5th
Cir. 1993). The plaintiff's claims concerning
publication censorship rules were mostly precluded by the prior decision in Guajardo V.
Estelle, which concluded that prison officials
could limit access to "sexually explicit" material that is not obscene. The rule in question,
modified by a later settlement, provides:
"Publications that contain graphic descriptions of homosexuality, sodo-masochism
[sic], bestiality, incest or sex with children
will ordinarily be d~nied. Publications that
are primarily covering the activities of any
sexual or politicafrights groups or organizations will normally be admitted."
Protection from Inmate Assault!
Immunity-Judicial and Prosecutorial
Latimore V. Widseth, 986 F.2d 292 (8th
Cir. 1993). The prosecutor told the press that
the plaintiff had been treated leniently for a
prior crime because he had agreed to testify
in another unrelated case. Two months later
the plaintiff was assaulted in his cell by persons allegedly associated with the case in
which he was to testify.
The prosecutor was not entitled to qualified
immunity. He was an experienced prosecutor
who knew the propensities of gangs, the
plaintiff's plea bargain called for his cooperation to remain confidential, and the prosecutor knew that the plaintiff would soon be
incarcerated; in addition, there had already
been retaliation against one witness to the
murder. This evidence was also sufficient to
withstand summary judgment on the question
of proximate cause.

DISTRICT COURTS
Use of ForcelPre-Trial Detainees
Cohen V. Coahoma County, Miss., 805
F.Supp. 398 (N.D.Miss. 1992). Coahoma
County and its Sheriff are herein enjoined
"from inflicting physical pain upon prisoners
in the custody of the sheriff for the purpose of
coercing information from such prisoners."
(400)
After an escape attempt, the Sheriff and his
deputy beat five inmates with a length of
coaxial cable in an effort to find out where a
metal bar was hidden in the jail. At least one
inmate was hit "with sufficient force to cause
significant pain and visible marks." (402)
There was no ongoing disturbance or security
threat at the time.
At 403-04:
Official coercion by fear of physical
abuse, Le. torture, has long been recognized as a denial of due process....
Indeed, any physical violence against
one being interrogated who poses no
threat to the safety of the officers or
THE NATIONAL PRISON PROJECT JOURNAL

r
r

others is a constitutional violation....
While it is true that physical force may
be used by prison officials to restore
or preserve order,...that is not the case
before this court, and even that prerogative is not unlimited. The amount
of force required to effect the purpose
must be weighed against the risk of
injury to inmates.
Medical Care-Standards of Liability
-Deliberate Indifference/Medical
Care-Denial of Ordered Care
Williams v. O'Leary, 805 F.Supp. 634
(N.D.IlI. 1992). The plaintiff was diagnosed
with osteomyelitis before entering prison, and
his doctor advised prison officials that he
required daily antibiotic medication, daily
temperature readings, and white blood count
readings, all of which they disregarded.
Two doctors who disregarded the plaintiff's
primary physician's instructions to give a particular antibiotic, and who also failed to give
any of the four medications that are effective
against the plaintiff's infection, over a period
of 28 months could be found deliberately
indifferent even under the Seventh Circuit's
"criminal recklessness" standard, even
though the plaintiff was seen by physicians 42
times and received 29 prescriptions. Even if
their conduct was only negligence or malpractice, "the duration of this negligent treatment is sufficient for this court to infer 'criminal recklessness,' or 'deliberate indifference.'" (638) "Mere volume of medical
attention is insufficient to defeat an Eighth
Amendment claim." Id.
Pre-Trial DetaineeslLaw Libraries and
Law Books
Datz v. Hutson, 806 F.Supp. 982 (N.D.Ga.
1992). The court holds the plaintiff's claim of
denial of law library access moot because the
jail opened a law library after the complaint
was filed. The plaintiff's amended complaint
alleged that this library is "for the use of
criminal proceooings and not civil proceedings." The court states (987 at n.5) that such
a limitation "would not comply with this circuit's access to the court's standard...."
Use of Force-BeatingIDamagesAssault and Injury
Giroux v. Sherman, 807 F.Supp. 1182
(E.D.Pa. 1992). The court finds that the
plaintiff was maliciously beaten by one officer, citing as evidence of malice that the officer had previously refused to permit the
plaintiff to enter the kitchen area to do his
job (1187). The court finds that in a subsequent incident the officer's brother made the
plaintiff walk from a medical facility back to
his housing unit, beating him along the way,
despite the fact that he was being treated for
THE NATIONAL PRISON PROJECT JOURNAL

heart disease and had been brought to the
infirmary in a van. The court concludes that a
slap to the face by a supervisory officer was
not hard enough to violate the Eighth
Amendment (1188). In a third incident, the
court finds that the plaintiff was beaten wan-,"
tonly and without provocation by another offi~:{
cer (1189). The court makes the same find-"~
ing about a fourth incident, although the
.-(
plaintiff was not injured in that one (1189, 90). In all cases, the court's conclusions tprn
on credibility judgments.
;.;,:
Damages from the first incident are set at
$10,000, including a component for the subsequent misconduct of other officers against
the plaintiff, which the court terms "a natural
and probable consequence" of the false disciplinary infraction the officer wrote (1190).
Damages for the second incident are set at
$10,000 compensatory and $10,000 punitive
to reflect the "outrageous" as well as "sadistic" character of the defendant's conduct.
Damages of $5,000 are awarded for the
third incident.
Damages of $1,000 are awarded for the
fourth incident, which resulted in no serious
physical injury; the award is for pain, humiliation and mental anguish (1191).
CrowdinglProtection from Inmate
Assault/Classification
Jensen v. Gunter, 807 F.Supp. 1463 (D.Neb.
1992). Double-ceIling in a prison that has
reached 64% over its single cell capacity does
not violate the Constitution. The plaintiffs' evidence does not show that the prison's facilities
are unconstitutionally overtaxed or that conditions, alone or in combination, are unconstitutional. The court also notes that the population
is still growing and that given these changing
circumstances, future inmates, though members of the class, could not be collaterally
estopped by this decision from future challenges (1468 at n.5).
The plaintiff failed to show that doubleceIling is the cause of an increase in institutional violence, but they did show deliberate
indifference in the defendants' failure to
develop adequate policies to protect inmates
from assault. At 1482: "The claim is systemic
in nature as opposed to an assertion that
defendants have failed to respond to a particular risk to a particular plaintiff." The number of violent incidents exceeds an "unavoidable" level and carries over into the double
cells "where tensions are increased by the
limited cell size, noise, lack of privacy,
restricted surveillance of the inmates confined therein, deterrents to the reporting of
assaults and other violations ofprison rules
by a cellmate, suspicions about the presence
of contraband, and the large amount of time
spent confined on a lockdown status with a
cellmate." (1483) These factors establish a

pervasive risk of harm sufficiently large to put
the defendants on notice of its existence.
Deliberate indifference is established by the
failure to utilize classification information in
making assignments to double cells. At 1484:
"To randomly place newly arriving inmates
into double cells under the volatile conditions
that exist in the four main housing units is not
a reasonable response to the pervasive risk of
harm."
Testimony showed that about four inmates
a year reqUired treatment at an outside hospital as a result o(\assaults; two to three a week
had less seriousJnjuries requiring medical
treatment; about six a year involved suspected
assaults that the inmate claims happened otherwise. The most recent figures showed 179
findings of guilt in six months for assaults and
threats of bodily harm. The average population of the cellhouses in question was 523.4
in 1991.
Communication with Media
Mujahid v. Sumner, 807 F.Supp. 1505
(D.Haw. 1992). Aprison regulation barring
visits from members of the press or correspondence with identified members of the
press unless the inmate had a prior friendship with the press member is unconstitution:
al on its face.
The court applies the standard of
Procunier v. Martinez "with the understanding that the Martinez test is not an entirely
different standard, but rather an application
of the general requirement of reasonableness
to the particular context of outgoing correspondence...." (1509) It grants summary
judgment to the plaintiff in the absence of any
evidence (as opposed to argument) supporting the reasonableness of the policy (150910). It also notes that the regulations choke
off all avenues of media communication rather
than allOWing alternatives as in Pell v.
Procunier. The decision seems to suggest that
a regulation that restricted visits but not correspondence might be upheld (1511 at n.3).
Law Libraries and Law Books/Mental
Health Care
Hatch v. Yamauchi, 809 F.Supp. 59
(E.D.Ark. 1992). The failure of officials in a
state hospital forensic unit to provide access
to a law library or legal materials or assistance from trained legal personnel violates
the right of access to courts (61). In the
absence of evidence of injury, the court
awards $10 in nominal damages as well as an
injunction that the defendants "formulate and
implement a legal services program which
will safeguard the right of access to the
courts" of the patients.

JULY 1993

11

Hazardous Conditions and
SubstanceslPre-Trial DetaineeslEqual
ProtectionlPersonal Property
Washington v. Tinsley, 809 F.Supp. 504
(S.D.Tex. 1992). An ordinance prohibiting
smoking in public buildings is not unconstitutional as applied to the county jail. It is
not "punishment" because it is reasonably
related to legitimate governmental objectives
including protecting the health of workers
and visitors, eliminating a fire hazard,
reducing litter and ash, and permitting
guards to smell other types of contraband
(506-07).
Since most people suffer only moderate
discomfort from nicotine withdrawal, the ban
on smoking is not disproportionate to the
governmental interest achieved, especially in
view of the other impositions of pre-trial
detention (507).
The failure to provide medical care and
counselling to prisoners, even though they
are provided to jail employees affected by the
ban, is not unconstitutionaL There is no allegation that anyone suffering "an actual medical necessity, rather than an adjustment
assistance need," has been denied medical
treatment. The distinction between prisoners
and staff is "solidly rational" since some of
the staff might otherwise resign and others'
job performance might decline (508).
Federal Officials and PrisonslPreTrial DetaineeslPhysical Conditions
Young v. Keohane, 809 F.Supp. 1185
(M.D.Pa. 1992). The court finds "objectively
unreasonable in light of both existing precedent and plain common sense" confinement
(imposed on all pre-trial detainees at
LeWisburg) in a "fishtank," a converted gymnasium, with eleven other inmates with no
wash basin, toilet, tables or chairs, television
or drinking fountain, where the prisoners
slept on folding cots and were forced to lie
on them at times to avoid the water that
seeped in from the adjacent shower area.
"Particularly distt:essing is Young's unrefuted
allegations that limited access to an outside
toilet regularly required detainees to urinate
in cups inside the fishtank." (1195) The
plaintiff was confined under these conditions
for almost six months, "a duration that strongly contributes to the unreasonable nature of
the defendants' conduct." The conditions were
far more restrictive than those of the maximum security convict population. At 1194:
"The practice of housing detainees in conditions more severe than convicted inmates has
been considered unconstitutional in the Third
Circuit for quite some time." The defendants
were not entitled to qualified immunity.
Publications
Nichols v. Nix, 810 F.Supp. 1448
12

JULY 1993

(S.D.Iowa 1993). The plaintiff was denied
publications from the Church ofJesus Christ
Christian under a regulation barring publications "likely to be disruptive or produce violence." The prison barred all materials sent
from the CJCC.
The regulation is constitutional on its face.
It is unconstitutional as applied to these publications. There is no evidence that the plaintiff has caused any problems as a result of
religious publications and no evidence that .
religious publications (including these,
which other inmates had received) had
resulted in problems. At 1463:
Although it is not necessary for an
actual prison disruption to occur
before correctional officials' security
concerns will be deemed reasonable,
mere declarations and incantations
that a practice might be harmful to
prison order, in the absence of a
rational and reasonably articulable
.basis, cannot justify government suppression....
Other publications advocating racial separatism are permitted into the prison. There is
no ban on discussing such subjects and no
evidence that discussion of them has ever
resulted in violence or disruption. The court
notes that two of the three committee members voted to ban the publications without
reading them. The defendant is enjoined from
denying the publications.
Classification-Race/Class ActionsSettlement of ActionslReligion
White v. Morris, 811 F.Supp. 341
(S.D.Ohio 1992). The plaintiff challenged a
policy of racial segregation in doubleceiling; a class was certified of "all inmates at
the Southern Ohio Correctional Facility now
or in the future who have been or will be
placed in general population." (342) The
court approves a settlement calling for random cell assignments except where the warden certifies that there is a risk of violence.
(This is the settlement that was protested
during the recent riot and takeover of part of
the prison.)
At 343: "Racial segregation in prisons is
prohibited." Aprior case in the district permitted it only when the Superintendent personally found it necessary and documented
that finding. Although some class members
objected to racial integration on religious
grounds, their right to religious freedom did
not outweigh the plaintiffs' right to a desegregated environment (344).
The prospect of increased violence did
not justify rejecting the settlement. At 344:
"Otherwise, minorities in this country would
have few rights, in light of the violence
involved in this nation's struggle for racial
equality." Also, the racial integration pro-

gram already begun by the warden had not
resulted in increased violence.
Medical Care-Standards of
Liability-Deliberate Indifference
Rosen v. Chang, 811 F.Supp. 754 (D.R.I.
1993). The plaintiff's decedent allegedly died
of untreated appendicitis. The allegation that
a prison doctor acted with deliberate indifference is sufficient to state a constitutional
claim. At 760:
Grossly incompetent and recklessly
inadequate exaihination by a licensed
physician is a <tJliberately indifferent
examination...This is ineluctably so
when the manifested symptoms scream
of a diagnosis that virtually lies within
the knowledge of a lay person.

• • •
Courts are reluctant to raise a misdiagnosis to the level of a constitutional
[761] violation, but will do so when
the failings in the process or outcome
of such a misdiagnosis are particularly
glaring. This is not a case where the
evidence demonstrates a carefully
thought-out medical decision.
Protective Custody/Summary
Judgment
Gray v. Faulkner, 811 F.Supp. 1343
(N.D.Ind. 1992). Restrictions on protective
custody inmates that were not applied to
general population inmates raised an equalprotection question, and the defendants were
not entitled to summary judgment. These
restrictions on property, recreation facilities,
law library access, dining facilities, and
aCcess to religious services are of the same
type that has been repeatedly upheld in
other jurisdictions, but the defendants presented no facts supporting a rational basis
for them.

NON-PRISON CASES
Discovery
Greenway v. International Paper Co., 144
F.R.D. 322 (W.D.La. 1992). The plaintiff is
denied the right to make 64 corrections in a
200-page deposition, many of which alter the
meaning of the original answer. At 325: "The
Rule cannot be interpreted to allow one to
alter what was said under oath.... Adeposition is not a take home examination."
Discovery
Murphy v. Williams, 145 F.R.D. 76
(E.D.Mich. 1992). The City of Detroit is sanctioned for fees and costs resulting from its
failure to cooperate in discovery of material
concerning police training. (They pointed to
file cabinets, refused to make copies, and
failed to explain why some 500 documents
THE NATIONAL PRISON PROJECT JOURNAL

were missing from the files.) The court set a
deadline date for compliance on pain of
default on the question of the existence of a
city policy of inadequate police training and
supervision.

Modification ofJudgments
Wyatt by and through Rawlins v. King,
811 F.Supp. 1533 (M.D.Ala. 1993). The
defendants moved to vacate a portion of a
consent decree requiring that the defendants
provide adequate transitional treatment and
care for patients released from state mental
health facilities.
In a 1986 consent decree, the plaintiffs in
effect traded off the degree of court supervision of the defendants' operations for the
right to have the validity of the 1972 Wyatt v.

Stickney substantive requirements placed
beyond challenge. The standard they now
seek to modify is "one of the most fundamental." DeShaney did not require modification
because consent decrees need not be modified to conform to the constitutional floor
and because it did not alter the law that the '~'
parties relied on. Rather, they knew in 1986";
that the Wyatt standards exceeded constitu~
tional minima. In addition, DeShaney deals
with the state's lack of obligation to perSons
whom it has not restrained, while the standard deals with its obligation to people whom
it has previously restrained.
Arecent decision that the defendants cannot keep class members hospitalized indefinitely pending space in a community program
does not constitute a change in fact justifying

For the Record
III New from the National Prison Project AIDS and
Prisons: The Facts for Inmates and Officers has been
updated and expanded. The 48-page booklet answers common
questions about AIDS in an easy-to-read question and answer
format. It explains what AIDS is, how the virus is transmitted,
and how to avoid infection.
TB and Prisons: The Facts for Inmates and Officers,
discusses tuberculosis (TB) in a simple question and answer
format. The 18-page booklet explains what tuberculosis is, how
it is contracted, what its symptoms are, its treatment and medication, how HIV infection affects TB, and how multi-drug resistant tuberculosis differs from "ordinary" TB.
Single copies of the AIDS and TB booklets are free from the
NPP, 1875 Connecticut Ave., N.W., Washington, D.C. 20009.
Bulk copies are as follows: $251100 copies; $100/500 copies;
$150/1000 copies, prepayment requested.
III Double Justice is a new video on race and capital punishment, produced as a joint project of the American Civil
liberties Union's Capital Punishment Project and the NAACP
Legal Defense and Education Fund, Inc.
Doublejustice links historical information about the racially biased use of the death penalty with contemporary research
which shows that race continues to determine which crimes are
punished by death.
For more information on race and the death penalty and/or
to order the 19-minute video, contact Diann Rust-Tierney at the
ACLU, 122 Maryland Avenue, NE, Washington DC, 20002, (202)
675-2321. Cost $20 prepaid.
III Minnesota Corrections Commissioner Orville Pung, calling
prison "the ultimate welfare state," called for abolition of
the terms "probation" and "treatment," in the April 1993 issue
of "Overcrowded Times." Pung says that these two terms are
often misunderstood by the public. " 'Treatment' is unfortunately a medical term," says Pung, "that is not appropriate in
the corrections system. 'Treatment' implies an illness, and con-

THE NATIONAL PRISON PROJECT JOURNAL

modification. The decision merely reaffirmed
existing obligations in the 1972 standards
and provided a procedural framework to
enforce them. Defendants' speculation about
how onerous the obligation may become in
the future does not justify modification.
The court declines to "clarify" the decree
to limit the defendants' obligation to one year
of post-release care. This is a modification,
and not a clarification; the obligation to provide "adequate" care requires individualized
determinations. III

"

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

sequentIy a cure....We need to rethink our use of the t
'treatment' and cast it aside, replacing it with 'risk re
more realistic objective of corrections programs." An
states that the term "probati<m" connotes "getting 0
the public. "If we are to educate the public that ther
legitimate alternatives to prison, the advocates canno
ue to be seen as mushy-thinking do-gooders," he co
"Only when the public understands that prison is th
welfare state and that community surveillance and
sion for appropriate offenders make economic and
sense will we slow the momentum toward ever great
dence on prisons."
III The Hunulti'lUghts Watch Global Reports~
Prisons summl1.rizes six years of work by the Huma.~
Watch's PrisOnl)~pjectand divisions in inyestiga.tillgp
conditions itl~r~H, China, .Cuba, Egypt, India, Jn4()11~
Israel and the Qccupied territories, Jamaica, Mexicl);
Poland, Romanil1.,Russia and Azerbaijan, SouthAfri
lhrkey, UnitedKin~dom, United States and Zaire. Thel
should not slIryrise lIS. The routine cfllelty ofimppsg
tolerated evenmSollntries that are more or lessre~J.Je
human rights btc~use prisons, by their nature, areo~
and becausepPsoll~rs, by definition, are outcasts.J3y
accepted standards,whether the often vaglJe United .N
Standard Minimul1l.Rules for the Treatment of Prisolle
other criteria,prison conditions, policies and practic
fall below the leyelof decency. From torture in a.poli
to degrading conditions and abuse by glJards,or pthe
in a long-term prison, ptisoners all over the world a
in gross violation.Qf their rights under international an
tic law, almost invatiably without recourse or remedy.'
In publishingJl1is report, Human Rights Watch calls
international human rights movement to widen its con
political ptisonersto strive for the rights of all ptisonet~
ized by the denials of human tights recorded here.
Copies of the report are available at $20 each (plus $
postage and packillg) from: Human Rights Watch, Publi
Department, 485~ifth Avenue, New York, NY 10017-61
Tel. (212) 972-84QQ,Fax. (212) 972-0905.

JULY 1993

13

Reflections on
Lucasville:
Have We Learned

Anything Yet?

"F

our dead in Ohio..."
The Crosby, Stills & Nash song
about the 1970 killings of four
Kent State students by Ohio National Guard
troops kept running through my mind as I
waited to hear news of the hostages and
prisoners at Lucasville. How many more
dead in Ohio this time?
Nine prisoners and one correctional
officer were ultimately killed at the
Southern Ohio Correctional Facility near
the Village of Lucasville, Ohio early this
May.
While to many people the Lucasvill~ situation may seem like a simple problem with
a simple solution (lock 'em up and keep
'em there), it bears a closer look.
Riots, hostage-taking, and kiIling are
deplorable and cannot be condoned. But
many incidents like the one at Lucasville
come about because of the dangerous conditions created by neglect and overcrowding. Prison conditions in many parts of the
country are even worse today than those
which inflamed the 1971 Attica uprising
and the 1980 New Mexico riot, both of
which resulted in dozens of deaths.
Research shows absolutely no relation
between crime rates and prison population. If the national prison population's
500% increase over the last 20 years is not
due to rising crime, then what are the reasons for it?
• Mandatory sentences. Overcrowding
has come aboul partly because of the flood
of mandatory sentences in the last 15
years. The elimination of much judicial
discretion in assessing prison terms has
resulted in longer sentences.
• Racism. People of color are treated
differently throughout the criminal justice
system and often receive longer sentences
for the same offense than do white offenders. (See the 1982 report by the National
Minority AdVisory Council on Criminal
Justice to the Department ofJustice which
shows the system favors whites over people of color; a 1992 Federal Judicial
Center study which found that federal sentences for blacks for drug trafficking and
firearms were 49% higher than for whites;
and the San Jose Mercury News investiga14

JULY 1993

James Demons, a correctional officer at the Southern Ohio Correctional Facility,
in grey clothing at center, as he was released by prisoners on the fifth day of
the riot.

tion which found that whites more easily
obtained plea bargains than blacks.)
• The drug war. MisgUided ReaganBush drug policies have not alleviated the
serious problems of drug addiction and
related crime; they have succeeded only in
locking up many nonviolent offenders for
ridiculously long prison terms, sweIling
prison populations, and exposing firsttime offenders to prison life.
• jailing ofparole violators. Use of
probation is way down and parole violators are jailed more quickly. At least 35%
ofthe more than 100,000 prisoners in
California are technical parole violators. A
parolee may, for example, be returned to
prison for having failed to report a job
change to a parole officer. California has
spent over 14 billion dollars for new prisons in the last decade! Can this be justified
in a state whose public schools are closing
for lack of state funds?
In 1981 the question of the constitutionality of prison overcrowding came before
the U.S. Supreme Court in Rhodes v.
Chapman. The Court was asked to rule on
whether placing two inmates in cells
designed for one at this same Lucasville
prison amounted to cruel and unusual
punishment. The Court said no, because a
specific finding of harm to basic health
and safety was needed before a prison
would be deemed unconstitutional.
The case began when a prisoner named
Kelly Chapman filed a lawsuit to halt double-ceIling at Lucasville. He cited state vet-

erinarian regulations requiring 43 square
feet of space for a calf once it became five
weeks old. "I went around measuring the
cell," said Chapman, "or my half of it. I
have 32 square feet. I couldn't accept that
a calf is entitled to more living space than
a man."
Imagine liVing in half of 63 square feet:
the space has to include two bunkbeds, a
toilet, a small table shelf, a chair, and a
sink. Take out space for these "furniture"
items, give half of the space to your cellmate, and you take what is left. As
Columbus Legal Aid attorney Jean Kamp,
who represented prisoners in Rhodes said,
"There is no human dignity in living in a
10-by-6 cell with another person."
Forty-one states and the District of
Columbia are under court order to reduce
prison overcrowding and/or remedy
unconstitutional conditions. In each case,
conditions of confinement and/or overcrowding in the prison were found to violate the ban against cruel and unusual
punishment of the Eighth Amendment to
the Constitution.
Thanks largely to the negotiating efforts
of Ohio attorney Nikki Schwartz, there was
no further loss of life at Lucasville. When
we look at the number of states that are
under court orders, we should not be surprised to hear of riots like the one at
Lucasville. Rather, we should be surprised
that we do not hear of them more often.•

jan Elvin is editor ofthe NPPjournal.
THE NATIONAL PRISON PROJECT JOURNAL

LIBERIAN LAWYER. con't.frompg. 2

Service (like the Secret Service here in
that they protect the President) came and
arrested me, and I was taken to the military stockade.
JE: Were you as scared that day as you
were the first time Doe arrested you after
the coup in 19807
MFJ: Actually, I was more scared,
because the first time there was a crowd.
This time I was alone.
JE: What happened to you when you got
to the stockade?
MFJ: The head investigator turned out
to be a friend of mine! He told me, "What
I will do is write a letter to the commander of the prison indicating to him that
under no circumstances are you to be
bothered in any way, by presidential
order." Traditionally, if you were sent
down there by the President, you were
liable to be whipped. You were liable to
be interrogated all night. You could die.
Because somebody would think they were
doing the President a favor. So, my friend
did the best thing he could do for me-at
some risk to himself. When I got to the
prison the commander called all of his
guards and said, "This is the President's
special prisoner. I don't want anything to
happen to this man." As a result, I was
placed in a tiny cell with a military officer,
who generously gave me his blanket that
first night. The next day my wife was able to
bring me a blanket and food. The prison
does provide food but you wouldn't want to
eat it if you had a choice.
JE: What was the food like?
MFJ: It was horrendous, just rice
cooked with palm oil, and that's it. Even
though my wife would bring me real nice
food, the kind I like, I just couldn't eat.
I've always had a big appetite except for
that period.
JE: They would let her bring in food?
MFJ: As long as she was prepared to eat
some of it tomake sure nobody was trying
. to poison anyone. She also had to pay
some money to make sure the food got to
me. You couldn't have any reading material except the Bible or the Koran. I've
always been a Christian and went to
church, but I'd never really read the Bible
until I was in that place.
JE: How long were you there?
MFJ: Thirty days. When I look back it
was really short, but I had no idea how
long I'd be there. I met two people who
had gone there under circumstances similar to mine (sent by the President), and
had been there for three years. One was a
preacher who had criticized the President.
JE: Is that where they put most people
THE NATIONAL PRISON PROJEG JOURNAL

who had made negative statements about
Doe?
MFJ: Yes, or who were actively against
the government. The military also put·
short-term people in there. The "common
criminals" went to the regular prison. The
military prison was the one where they .:\'
packed people in after the 1980 coup. My~;
younger brother was unfortunate to go;,
there within a month after the coup, anf
he was tortured. He still has marks on"}iis
back from beatings. They handcuffed,lrtm
to a pole and somebody would whip Min
until they got tired, or until he collapsed.
Fortunately I did not experience anything
like that. The worst thing about it was the
deprivation and just being locked up.
There was no toiletin the cell; the Liberian
Red Cross provided little buckets. In the
morning people took the buckets out to
the general bathroom;and this smell.. .it
was horrible.
JE: When your wife came to bring food
did she get to chat with you?
MFJ: Yes, I saw her. I got many visitors.
There were other civilians there but I was
probably-for lack of a better word-the
most prominent person in the prison at
the time. I would usually come out first
and see my people because they took up
the whole visiting room. People from my
church came all the time. My parents
never came; because it was too emotional.
My brothers absolutely refused to come
because of their anger. My sisters didn't
come because they would cry. There was a
big sign on the wall: "No crying."
JE: How did you get out?
MFJ: My parents and my wife began to
get people organized to try to get me
released. We had relatives close to Doe,
but people were so fearful of him. Finally
my wife wrote a letter and had the entire
extended family sign it. At 5 o'clock one
evening I heard my name called. The
President wanted to see me. I had no
clothes except for shorts, bath slippers
and a T-shirt. I got in a car with three
security officers and drove straight up to
the presidential palace.
JE: You in your outfit?
MFJ: In my shorts and T-shirt.
JE: Were you scared, or curious, or
wh~?
.
MFJ: Not scared, but I was concerned.
I figured if he wanted to do something to
me he wouldn't have called me in to speak
personally. I thought the worst thing that
could happen was he would tell me some
nonsense and then send me back to
prison. I walked in and Doe was sitting on
the balcony overlooking the beach. Anice,
cool breeze is blowing-he's sipping
something, and speaking on a cordless

phone. He put the phone down and proceeded to lecture me for 15 minutes of
crap about how they exposed their lives to
free Liberia from tyranny.
JE: And you're taking it all in.
MFJ: Yes, of course. Finally he says to
me, "I received a letter from your parents
and your wife so I've decided you can go
home. But if you ever do anything against
this government again, I will send you to
Belle Yalla." Belle Yalla is a notorious
prison in the middle of nowhere. They fly
you up there.'\lhey say that in the old days
they used toJ\irow people out of the
plane. I don;t'know how true that is, but a
lot of peopfe who went there didn't come
back. After he finished, I said, "Thank
you, Mr. President. May I shake your
hand, Excellency?" He looked at me, "Oh
yes." I shook his hand and left.
JE: Why did you do that?
MFJ: Amatter of pride. I was telling
him, "I'm not afraid of you." I looked
right in his eyes and shook his hand.
Mano a mano. I was totally powerless but
in a way my self respect and my dignity
were maintained by having that parting
handshake with him.
JE: What then?
MFJ: In October of that year (1985)
we had elections in Liberia. The U.S. government supported Doe, who was one of
Ronald Reagan's favorites for two reasons: the first, Doe made anti-communist
noises, and the second, Qadaffi. You
know how Ronald Reagan felt about
Qadaffi, and Doe would make these glorious speeches against Qadaffi and
indeed, during the Reagan years the
government of Liberia received
$500,000,000 in aid from the United
States. There is nothing to show for that,
absolutely nothing.
JE: Did it just go into Doe's pockets?
MFJ: As much ofit that could, did.
JE: What about the rest?
MFJ: It was wasted. Alot of it was military aid. Liberia-we could never understand-Liberia had very minimal external
threats, if any. This military aid was being
used against us, the ordinary citizens of
the country! Doe lost massively in the
October 1985 election, he probably got
one third of the vote.
JE: Who ran against him?
MFJ: Agentleman who was later killed
during the civil war called Jackson F. Doe,
no relation. (Samuel) Doe decided he
wasn't going to accept the election results,
so he rigged the election. One of the saddest statements that I've ever heard made
by an American government official was
by the Assistant Secretary for African
Affairs, I think it was Chester Crocker,
JULY 1993

15

who said, "Well, at least they had an
election."
JE: Well, there's elections and then
there's elections.
MFJ: Right, so Doe faked it and continued in power. In November 1985 one of
his former councilmen, General
QUiwonkpa, tried to overthrow the government, and failed. In retribution, Doe sent
his army up to Nimba County, this man's
part of the country, and they slaughtered,
raped and burned. The orphans from that
and the people who lost their brothers and
sisters fled into the neighboring country.
Four years later in 1989, these same people formed the crux of the invading army,
the National Patriotic Front of Liberia.
JE: Was this [Charles McArthur 1Taylor's
group?
MFJ: Right. Charles Taylor's group that
would come back on December 24, 1989
to remove Doe.
JE: This was like coming back around
again.
MFJ: Yes, it came back around. Frankly,
the civil war in Liberia really began in
1985 when Quiwonkpa tried to remove
Doe and failed and Doe went and
oppressed his part of the country. The
seeds of the civil war were being planted.
JE: What were you doing in November of
1985?
MFJ: I was fired from myoid job at the
Liberian Produce Marketing Corporation
in November 1985 (Doe's work, I believe).
I went into private business, then to law
school. After that I began working at the
family law firm of]ones and Jones. I'm a
third generation lawyer-my father and
grandfather were lawyers. Afriend of mine
suggested that I apply for a Fulbright
scholarship, especially since I was interested in the scholarship of law more than the
practice. I came to Harvard in August 1989
to do my LLM (Masters in Law). I was
actually here when the civil war started in
December 1989. Like many Liberians, I
dismissed it and-thought, Doe will kill
them all and we'll have to find another way
to get rid of this man. Maybe Doe would
do like a lot of leaders did-like Marcos
or Duvalier-and flee. Well, this fool
decides he's going to stay until the bitter
end, and that led to the total destruction of
Liberia. I thankfully didn't experience any
of it but family members did. The stories
are horrendous, beyond imagination.
JE: Taylor's rebels invaded Liberia in
1989...
MFJ: Yes, and they decided that whoever
lived in Monrovia was a Doe supporter.
Doe's army killed indiscriminately and
also pointedly. There are so many stories
of the brutality and the inhumane treat16

JULY 1993

ment...from news reports, from relatives
and friends, you can tell that the people
really suffered. Half the country left to go
to neighboring countries. And of those
who remained, half were out of their
homes. Liberia went through a completely
horrific time, and is still going through it.
By March 1990, the entire system was broken down-there was really no more government, even though Doe claimed to be
President. In September one of the rebel
groups killed Doe. Alot of us believed thls
thing was over. The purpose was to get rid
of Doe and Doe was gotten rid of.
Unfortunately, the National Patriotic
Leadership [Taylor1decided that they were
going to continue this battle because they
wanted to control the country. Neighboring
countries decided to become involved,
ostensibly as a peace force, and are still
there. Acease-fire lasted from early 1991
until October 15 of 1992. Taylor had set
up an entire infrastructure in the rest of
the country-cabinet and government. He
never got diplomatic recognition but he
did have a government. The U.S.
Ambassador used to go up and visit him
once in a while but all of that has fallen
apart since last October because the West
African troops have launched an amazing
military attack against Taylor. By this time
Taylor controlled 90% of the country. The
West Africans meanwhile have installed a
government in Liberia under a Dr. Amos
Sawyer called the Interim Government
National Unity.
JE: SO, Monrovia is controlled by a different group than the whole rest of the
country?
MFJ: Yes, but in October of last year
Taylor launched an attack on Monrovia.
JE: Was he successful?
MFJ: No, he failed, but for the first time
the West African troops actually launched a
major frontal assault against Taylor.
JE: The West African troops are not
Liberians, then?
MFJ: No, they're Nigerians primarily;
Ghanians, Sierra Leonians, Guineans.
JE: Are they some kind of federation?
MFJ: Yes, the Economic Community of
West African States formed close to 20
years ago for the purpose of economic
union. In 1990, with all these Liberian
refugees, the heads of state of other countries decided that they needed to do something because the impact of the Liberian
civil war was reverberating in their countries. They extended their role after this
October attack on Monrovia to actually
fighting against Taylor. The Nigerian Air
Force bombed Taylor's positions in other
parts of the country. But there are reports
of hitting civilian targets-two reports of

hospitals being hit and all of that. It is an
extremely complicated situation.
JE: Is your family still in Monrovia?
MFJ: My brother has moved back to
Liberia and reopened the family law firm.
He says his life is slowly, slowly returning
to normal.
JE: SO who governs Monrovia? The
mayor or something?
MFJ: (laughing) Taylor always called the
gentleman, Dr. Sawyer, who's President of
the interim government, "the Mayor of
Monrovia." The ~onrovia government is
the one consider~d official by the United
Nations and by th:~ Organization of African
Unity. By any definition of "government," I
don't believe that Liberia has had a government since the Doe regime crumbled.
Certain elements must be present that both
sides always lacked. You certainly must
control most of the country, which the
Sawyer government never did. You must be
considered a government by organizations
like the UN, which the Taylor rebels never
had. But for all intents and purposes, and
more and more as the days go by, the
Interim Government is recognized as the
legitimate government of Liberia.
JE: What effect has the war had on the
people of Liberia?
MFJ: Aterrible effect-there are a lot of
orphans, a lot people left homeless
because their homes were destroyed. It is
so sad that these people's lives have been
completely disrupted for nothing. Everyone
had agreed that Doe had to go; what
turned people around and against Taylor
were several things, but major among
them was he lost control of his fighting
force, and went on this murderous binge.
The second thing was that on September 9,
1990 when Doe was killed, Taylor should
have stopped and said. "Let's talk. Let's
find a political solution to the problem."
JE: Do you think one could have been
found?
MFJ: Well I'll put it this way, if Taylor
had done that and they had elections
shortly after, he would have won hands
down. His decision to continue fighting
was the biggest mistake he ever made.
JE: Why did he continue fighting?
MFJ: Because Taylor believes that he has
the right, I guess, a birthright to be
President of Liberia. This is a man who,
before we heard he was leading a fighting
force, was sitting in a prison in
Massachusetts. Doe had asked that Taylor
be extradited to Liberia for allegedly stealing government money and pocketing it.
But he actually escaped from prison in
Massachusetts.
JE: Supposedly he sawed his way through
bars in the laundry room and lowered himTHE NATIONAL PRISON PROJECT JOURNAL

self to the ground with a tied bed sheet.
MFJ: Taylor was always extremely flamboyant, he always wore nice, expensive
suits, drove a Mercedes. He was always
looked upon more as a social type than as
a military type person, so people were surprised. Also, nobody expected Doe's Army
to put up such a fight. The U.S.
Government offered Doe a way out. When
Bush sent 2,000 Marines off the coast of
Liberia the Ambassador went to Doe and
said, "We'll take you anywhere you want to
go." Doe refused. He had probably
become a hostage of his Army. They said,
you're not going to leave us here. I believe
that story. So you have a country now that's
in as bad a situation, or worse, than any
other country in this world. We thankfully
did not reach, in terms of their starvation
levels, Somalia. This is not to say that a lot
of people didn't starve to death. I think all
of the numbers that have been published

are off. They have indicated 20,000 killed,
I think that's off. I think it's probably two
or three times that many that have died.
JE: Now you've started anew in this
country. How did you discover the Prison
Project?
MFJ: When I was at Harvard I noticed
that the public interest law students had
more life about them than the corporate
law people. The people seemed more'
real. They had a heart and they smiled
more and they had less pretentiousness
about them. So, when I had to find a job
the first place I decided to look was in
public interest. I pulled the National
Prison Project out of the Harvard
Directory. It's been very interesting. It's
not possible to survive practicing this
kind of law exclusively in Liberia, but I
think I've learned that people need this
sort of thing, especially in a country like
Liberia. What I'll try to do when I go

back is combine both: have a practice
that will make sure I earn a living, and
do something like this. It may not be
prison work, but it will certainly be a
public interest kind of work. I've seen at
the NPP that one can have an organized
way of going about protecting the public
interest and constitutional rights. I've
been exposed to the level of commitment
that one can bring to this. Certainly
that's been inspiring. I've learned a lot,
both personally and professionally. I
used to think, about human rights primarily in a political context-the torture
of a prisoner who was arrested for political crimes. I didn't think about the
ordinary person in prison who's being
mistreated, not necessarily by torture but
by not being given the proper medical
care, etc. which in the final analysis presents the same result. He goes through
pain. III

"Dear Prison Project..."
The NatiQnalPrisonProjecfrecefves over 500 letters each
weekfrom prisoners. Many ofthose letters include legal
questions which, unfortunately,wehaveneither the time
nor the staffto answer individually. In order to give prisoners some ofthe information requested,. we are continuing
an ((advice" column, a sortof"Dear Abby"forprisoners on
legal questions. This issue's "Dear Abby" is Dan Manville.

Dear Pro Se:
The problem that you are haVing is not something unique to
you. To serve process, you have to know where the defendant
is. Usually, the Marshals can arrange to serve process on a
prison employee or official at the prison, and sometimes prison
administrations will make this accommodation for other
process servers too. However, if defendants are not actually at
the prison-if they are on sick leave, or have retired or
resigned, or transferred to another prison-they cannot be
served at the prison. Prison staff are unlikely to accept service
for them, and even if they do, such service may belegally questionable. This problem alises even when the U.S. Marshals are

THE NATIONAL PRISON PROJECT JOURNAL

trying to Serve process.
•.• ii.
Prison officials .areextremely reluctanttoprovjdet~¢
addresses of staff or fortner staff becausetheythillkit",
aninvasion of privacy and a possible threat tosecurit¥i
Marshals are obligated to try to locate and serve allgef
as long as you provide them with informationtoJdentify
defendants. However, the Marshals have no power tofof.
ons to provide staff addresses.
You should.file a discovery request on the highest tan
defendant (warden or director of correctiolls) seekingt
sent or last known addresses of theunserveddefelldanr~
make. a motion to compel under Rule 37 if theinformati
not provided. The motion should state that you do notpe
ly need this information but it is needed by the U.S. Mars. '... t
complete service as ordered by the court, and that itisa<;c¢pt
able to have the addresses prOVided directly to the Marshals/if
prison officials prefer.
Another possible solution is to persuade prison staff orth~
attorney representing the defendants who have already been····
served to arrange to accept service for the unserved defendants.
(They will have to contact each defendant to get authorizati
do this.) You will probably have to agree that this procedureq
not bind the state, city or county to represent these nameddef
dants until the defendant makes a request for representation.
If defense counselor the unserved defendants will not agree
to this, you can suggest this method in your motion to compel
as an alternative to prOViding you or the U.S. Marshal with th¢
actual addresses. Courts are likely to find it an appropriate
compromise between your need to effectuate service andthe
privacy of prison staff.

Dan Manville, an ex-prisoner, is aprivate attomey in
Detroit. He is the author ojthe Revised Second Editio'ftoj
Prisoners'Self-Help Litigation Manual:
.

JULY 1993

17

,......te
How Not to

Implement a
MeQical Parole
Law
dvocates and families of prisoners
with HIV/AIDS were hopeful when
New York passed its medical parole
law in April 1992, despite the limitations
incorporated within the law. Since that
time a medical parole bill has been introduced into the Massachusetts legislature,
and the District of Columbia is beginning
to implement their Geriatric and Medical
Parole Law. Sadly, problems have emerged
since the laws were passed which have dissipated most of the early hope held by
advocates and families. Many of the problems with New York's medical parole law
revolve around stories similar t6 that of
the Ocasio family.
It began in July 1992 when Bernard
Ocasio, a New York State prisoner in the
advanced stages of AIDS, was advised by
his doctor to apply for release under the
new law. After filing the application,
Bernard's sister Marie received notice that
a document was missing. Despite numerous calls to New York Department of
Correctional Services (DOCS) chief medical officer Dr. Robert Greifinger's office,
Ms. Ocasio was unable to find out which
specific document was missing. Although
unable to walk unassisted, in September
Bernard Ocasio was abruptly moved from
the Staten Island University Hospital in
New York City to the Walsh Medical Center
in Rome, New York, a six-hour drive away
from family. At the Walsh Medical Center
Mr. Ocasio's condition deteriorated steadily. Upon hearing of his transfer, Marie
Ocasio immediately began calling city officials for help, and she learned from Dr.
Greifinger's secretary that her brother's
medical parole application was now ready
to go before the Parole Board. On
September 20, however, Bernard Ocasio
died. Aweek later Marie Ocasio received a

A

18

JULY 1993

telephone call that her brother had been
granted medical parole.
.
"I think," said Marie Ocasio later, "that'
the waiting period to process medical
parole applications is too long and it's not
fair to require prisoners to be almost dead
before they're released. Another problem
is prisoners not receiving proper medical
treatment or being monitored. I know
AIDS didn't kill my brother Bennie-it was
the suffering and depression of being
moved away from his family and the lack
of proper medical care."
Three hundred and ten prisoners died
during 1992 in the New York State correctional system-21O of AIDS. The Correctional Association of New York estimates
that an average of 18 prisoners die of AIDS
each month in the New York system.
According to New York DOCS statistics,
234 medical parole applications have been
received. Of that number, only nine have
been approved for release. Don't look for
these figures to change anytime soon,
since DOCS has estimated that only 25
prisoners will be released this year under
the new law. It is that figure along with the
frustrations encountered in preparing the
applications that has most advocates
steamed. They describe the difficulty in
receiving information about the application once it is filed, the amount of time
spent processing applications, and just
how disorganized the process is.
The Legal Aid Society's Medical Parole
Project, a division of the Parole Revocation
Defense Unit, has experienced problems in
assisting clients with medical parole applications. Project staffers have been denied
entrance to New York State correctional
facilities, have encountered prison doctors
who are unwilling to provide medical
information, and correctional staff who
refuse to distribute pamphlets describing
the project to prisoners. Their phone calls
have gone unreturned by Dr. Greifinger's
office. Despite these obstacles, they have
managed to submit medical parole applications for 28 prisoners with AIDS and
other terminal illnesses. Five prisoners
have died so far waiting for their applications to be processed. Another prisoner,
whose application was filed in February, is
still awaiting an answer.

Raye Barbieri, a certified social worker
at the Medical Parole Project, says, "The
New York DOCS h1!-s made the process difficult by refusingtp comply with us and
give information\vhen we're advocating
for clients. The'current law gives
Corrections complete discretion in the
medical parole process. There's nothing in
writing that describes any guidelines.
Another problem is the amount of complete control Dr. Greifinger has in selecting who moves on to the Parole Board."
The biggest rationale for denial by Dr.
Greifinger is "insufficient disability," which
means not being ill enough to qualify for
medical parole, even when a doctor has
certified the prisoner not to be a danger to
society. DOCS also maintains that no one is
entitled to an explanation of why their
application was denied approval.
Under the law doctors are required to
certify a prisoner's "dangerousness," and
have no immunity in the event they are
sued. Steve Machon of the Correctional
Association says, "Doctors are not sure of
the process, never know if their paperwork has been received and experience
long delays in receiving information.
Basically doctors have no idea of how the
process works. DOCS has a directive on
the internal process that has yet to be published." Aproposed amendment to the
medical parole law would provide doctors
with limited immunity from damage claims
and would change the language referring
to "dangerousness" to a standard which
more reflected their professional expertise. The measure would also extend the
parole period from four to six months.
Unfortunately, medical parole has
become another fixture for denying
humane treatment of prisoners with AIDS,
instead of what activists once saw as a
means of restoring some dignity to prisoners in the last stages of AIDS.•
Alex Velazquez, the first prisoner with
AIDS released by Virginia Governor
Douglas Wilder died on April 15. Gilbert
Serrano, an ex-prisoner and advocate
for prisoners living with AIDS/HIVdied
on May 25 from AIDS-related causes.

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

blications
Bibliography of Material:on
----'--- Women in Prison
.'

1990 AIDS in Prison
_--,-_ Bibliography lists resources

lists information on this subj,ect
available from the NationaL~rison
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.

_--,-_ APrimer for Jail Litigators

$21yr. to prisoners.

The Prisoners' Assistance
Directory, the result of a
national survey, identifies and
describes various organizations and
agencies that provide assistance
to prisoners. Lists national, state,
and local organizations and
sources of assistance including
legal, AIDS, family support, and
ex-offender aid. 10th Edition, publishedJanuary 1993. Paperback,
$30 prepaid from NPP.

TB: The Facts for Inmates
and Officers answers

The National Prison Project
Status Report lists by state

QTY. COST

QTY. COST

Fill out and send with check payable to:

Name

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

Address

THE NATIONAL PRISON PROJECT JOURNAL

----'---

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 nota "jailhouse lawyers" manual.) $20 prepaid from NPP.

The National Prison
Project JOURNAL, $30/yr.

those presently under court order,
or those which have pending
litigation either involving the
entire state prison system or
n'i'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
from NPP.

on AIDS in prison that are
available from the National Prison
P~ject and other sources,
ill~luding corrections policies on
..AiDS, educational materials,
medical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

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 HIY
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25. 500 copies/$100.
1,000 copies/$150 prepaid.

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

ACLUHandbook,The
Rights of Prisoners. Guide to

ACLU)

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

QTY. COST

_
_

City, State, ZIP

_
JULY 1993

19

I

~

-~........,

I,

.'.,

'.j

he following are major developments
in the National Prison Project's litigation program since March 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. Periodic status reports on medical
and dental care were required to ensure
that they remained constitutional following
recent improvements. On April 3, the
court ruled that the state's failure to make
facilities accessible to mobility-impaired
prisoners violated the Constitution. The
court declined to hold that discrimination
by defendants against mobility-impaired
prisoners violated Section 504 of the
Rehabilitation Act. Plaintiffs filed a motion
to modify this part of the decision which
the court denied on May 27, 1993.
Doe v. Foti, et al. - In April 1993,
the National Prison Project, with the Youth
Law Center and two private attorneys, filed
this class action lawsuit on behalf of juveniles held in the Conchetta Facility at the
Orleans Parish Prison. The case alleges
that conditions at the facility are unconsti-

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

tutional and specifically challenges inade-:~
quate educational programs; lack of prov!C"
sion of basic supplies; inadequate med- ,',
ical, dental and mental health care; uns~
environmental conditions; abusive disci-"
plinary practices; and inadequate visitation
practices.
Hadix v. Johnson - The National
Prison Project appears in the medical and
mental health care portion of this conditions of confinement case 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. The defendants have filed a notice of
appeal from the orders.
Many Horses v. Racicot - On April
21, 1993, the National Prison Project and
the ACLU of Montana filed this case
against the Women's Correctional Center
in Warm Springs, Montana, challenging
unsafe environmental conditions, inadequate medical and mental health care,
and inequitable vocational and educational programs as compared to those offered
at the men's facility. The case was filed
after the legislature reneged on its plan of
two years' standing to construct a new
women's facility.
Palmigiano v. Sundiun 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 pa,*age calls for use of
alternatives suchjs intensive supervision,
halfway houses ,afld drug treatment programs, night ana weekend court to expedite arraignments, and the creation of a
committee to supervise population levels.
As of early June, the legislation was moving through both houses of the legislature,
and the parties to the lawsuit were moving
closer to a final agreement that would
conclude the litigation and end federal
court active supervision.

u.s. v. Michigan/Knop v. Johnson
- In this state-wide Michigan prison conditions case, the trial court ordered the
defendants to submit a compliance plan
for legal access by June 15, 1993.
Harris v. Thigpen challenges the treatment of prisoners with HIV infection in the
Alabama prison system. Following an
appeal by the plaintiffs, the Eleventh
Circuit remanded to the district court for
retrial on our statutory claim under Section 504 of the Rehabilitation Act and our '
legal access claim. After remand, the parties disagreed on the burden of proof allocation under the Rehabilitation Act. On
June 21, the district court certified this
question to the Eleventh Circuit.

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JULY 1993

THE NATIONAL PRISON PROJECT JOURNAL