A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOl. 8, NO.4, OCTOBER 1993 • ISSN,p748-2655

" Brutality
Reform Advances in Tennessee After Decades ~iJf
ennessee's prison conditions litigation, which ended in May after 18
years in the courts, was a success
story.l As such it illustrates both the potential and the limitations of litigation as a
catalyst for social reform. The lawsuit
invoked transcendent constitutional principles, and pitted the coercive power of the

T

courts against the institutional inertia of a
sprawling prison system. And yet, as in any
human drama, it was individuals, at least
as much as legal principles and institutional relationships, that determined the final
outcome.
Challenge to Reform
In 1975, when William Trigg and several
fellow prisoners filed their handwritten
complaint in a state court in Nashville, they

Billy Sadler, the last prisoner to leave the Tennessee State Penitentiary, was
escorted out with Gov. Ned McWherter on June 26, 1992. Sadler was transferred to the Riverbend Maximum Security Institution.

confronted a prison system steeped in a
century-old tradition of corruption and
brutality.
Tennessee's prisons traced their roots to
the infamous convict-leasing system that
was instituted after former secessionists
recaptured control of state government at
the end of Reconstruction. Convicts, most
of them black, and many guilty of nothing
more than vagrancy, were held in state-run
stockades and leased to mine operators
under a tyranny of peonage as brutal as the
former slavery it was intended to replace.,
Convict leasing ended only after an
armed insurrection by free, white miners
whose own working conditions and pay
scales were degraded by being forced to
compete with convict labor. Miners burned
the stockades and fought pitched battles
with militia sent to the coal fields to reimpose the convict lease system.
Finally forced to abandon that system, the
state constructed its first "modern" penitentiary in Nashville in 1898: The tradition
of brutality persisted, however. The state
continued to force prisoners to mine coal
on state property adjacent to Brushy
Mountain prison in the eastern part of the
state. The mines, notorious for their harsh
discipline and dangerous conditions, had
closed only a few years before the filing of
the Trigg case, when the coal reserves had

.

finally played out.
In the west Tennessee bottomlands along
the Mississippi, black prisoners chopped
cotton under the shotguns of mounted
guards and were crowded together in stifling, violence-ridden dormitories by night.
The strap was an everyday facet of prison
life. The records of African-American prisoners were still marked with a large capital "B" and work assignments were made
by race. Medical treatment was provided
by unlicensed, untrained prisoner
"medics." Each prison was a little fiefdom
where convict kingpins and "good old
boy" wardens collaborated to maintain
order through what the courts would come
to describe as a "reign of terror" based on
violence and intimidation.
Confrontation in the Courts,
Chaos in the Prisons
Early in 1976, the National Prison
Project of the ACLU and several local legal
services offices in Tennessee entered the
case as counsel for the prisoners who had
filed suit pro se several months before.
The attorneys stuck with the plaintiffs'
original choice of state court forum: the
case was assigned to a respected trial
judge, new justices on the Tennessee
Supreme Court were expected to provide a
progressive majority, and Tennessee's state
constitution contained a Reconstructionera provision guaranteeing "safe and comfortable prisons and the humane treatment
of prisoners."
Five years of costly, often bitter, and ultimately inconclusive litigation ensued in
the state court system. In 1978, following
a month-long trial, Chancellor Ben H.
Cantrell, the trial judge, issued a meticulous and compelling opinion declaring the
entire state prison system to be in violation of both the federal and state
Constitutions. The ruling was among the
most sweeping institutional reform decisions ever entered, and was particularly
courageous since Chancellor Cantrell was
a Republican appointee facing a contested
reelection in a heavily Democratic district.
Relief was stayed pending an appellate
ruling that never came. The sudden death
of a key Justice changed the orientation of
the state's high court, and in 1981, that
court voted to "abstain" from ruling on
the merits.
In 1980, the federal District Court for
the Middle District of Tennessee had accurately read the handwriting on the wall and
concluded that it could no longer defer to
the state courts to address the constitutional complaints which it regularly
received from prisoners. The District Court
appointed the same counsel who had been
2

OCTOBER 1993

litigating Trigg for five years, as well as the
state's largest commercial law firm, to represent Scotty Grubbs and several other
prisoners who had filed pro se complaints
concerning conditions in the Tennessee
prison system.
After the State Supreme Court consigned
the Trigg case to judicial limbo, the federal
court certified Scotty Grubbs' suit as a
class action that subsumed the same parties and the same issues involved in Trigg .
In short, the same case continued in a new
forum and under a new name.
Following retrial, District Judge L. Clure
Morton again ruled the Tennessee prison
system unconstitutional. His 1982 ruling
used Chancellor Cantrell's detailed 1978
findings as a benchmark against which to
measure the system's continuing deficiencies and the failure of state officials to
address them. Patrick D. McManus, former Kansas Commissioner of Corrections,
was appointed Special Master to supervise
implementation of a remedy.
That remedy proved elusive. Throughout
the first decade of litigation, conditions
actually deteriorated under the pressure of
increasing overcrowding. Amassive construction program, combined with a temporary policy of early releases, briefly
relieved those pressures in 1983. But the
state neglected the prisons' many other
deficiencies, and when overcrowding
intensified in 1984 the system slid further
into chaos. Three years after the federal
court ruling, Tennessee's prisons had
become the most violent in the nation, as
measured by the rate of inmate homicides.
In 1985, riots broke out in prisons
across the state. Aprisoner was killed
and the system sustained tens ofmillions
of dollars in damage~ In hearings before
District Judge Thomas A. Higgins, who
had been assigned the Grubbs case after
Judge Morton took senior status, the state
all but conceded that it had lost control of
the prison system and was incapable of
making any further assurances to the
court regarding its ability to bring the
system into compliance with the
Constitution.
In what was then an unprecedented
response, Judge Higgins enjoined further
admissions into the entire prison system
until state officials could ensure minimum standards of safety in the system's
three regional reception centers.

ent. Elected officials ran on tough "law and
order" campaign slogans, then enacted
more stringent sentencing laws without
providing for corresponding increases in
prison budgets.
Always highly politicized, the
Department of Correction continued to
serve as a dumping ground for patronage
appointments. Those administrators who
were competent had neither the
resources nor the managerial authority to
properly run their institutions.
By late 1985, th~ prison crisis had
finally become a.pbliticalliability to thenGovernor LamarAlexander and state legislators. News media and the public
increasingly blamed them rather than the
courts for the violence and chaos in the
prisons. It was evident that, seven years
after the first judicial finding of unconstitutionality, political leaders of both parties had still not responded in good faith
to the courts' repeated calls for reform.
Following the summer prison riots and
Judge Higgins' order enjoining further
admissions to the prison system, the state
legislature met in late 1985 in a special
session devoted exclusively to the corrections crisis. The session was attended by

The State's Commitment to Reform
Throughout the first decade of litigation,
state politicians had continued their century-old tradition of "malign neglect" of the
prison system. Their response to the
courts was not so much defiant as indiffer-

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

Editor: Jan Elvin
Editorial Asst.: Jenni Gainsborough
Regular Contributors: John Boston,
Russ Immarigeon
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, DC 20009
(202) 234-4830 FAX (202) 234-4890
The National Prison Project is a tax~xempt foundationfunded project of the AClU Foundotion which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional

facilities by using existing administrative, legislative and
judicial channels; and to develop alternatives to
incarceration.
The reprinting of JOURNAL material is encouraged with
the stipulation that the National Prison Project JOURNAL
be credited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materials and suggestions

are welcome.

THE NATIONAL PRISON PROJECT JOURNAL

the predictable political grandstanding
and irresponsibility and its outcome was
often in doubt. But an angry public, the
pressure of the injunction, and genuine
statesmanship by key legislative leaders
ultimately produced an historic commitment of state government to reform of its
prison system.
The litigation not only goaded state officials to seek reform but provided them a
blueprint for achieving it. During the year
that preceded the 1985 riots and special
legislative session, a team of nationally
recognized experts had undertaken an
intensive evaluation of the prison system.
The state had acquiesced in the evaluation process rather than face heavy sanctions for its violation of earlier court
orders. The result was an extensive report
with comprehensive recommendations,
ranging from prisoner classification to
personnel management, that together
would enable the Department of
Correction to turn the system around.
Even before the formal release of their
report, the outside evaluators and Special
Master began to share their key findings
and recommendations with important
lawmakers. Arelationship of mutual
respect had developed between crucial
state prison administrators and the outside evaluators. At a crucial juncture during the special legislative session, the
evaluators appeared at a committee hearing to explain their findings and recommendations to the legislative leadership.
The hearing turned into an extended tutorial which convinced lawmakers of the
need for genuine reform, not just to mollify the courts, but because the public
interest demanded it.
With relatively minor modifications, the
governor and legislature embraced the
reform plan developed by the court evaluators. In a number of important
respects, the reforms went beyond constitutional minima adjudicated by the
federal court.
For example, Judge Morton had
ordered the single-celling of Tennessee
State Prison, known as "The Walls," the
infamous 19th-century institution constructed at the end of the convict-leasing
era. The legislature, persuaded by the
evaluators that the poorly-designed facility was not only dangerous but inefficient,
voted to close it altogether. The court had
been troubled by the system's treatment
of mentally impaired prisoners, but had
concluded that mental health services satisfied constitutional minima. The state,
prompted in part by the evaluators' findings, decided to close its archaic mental
health unit and build an entirely new sysTHE NATIONAL PRISON PROJECT JOURNAL

tem of prison mental health services.
Armed with a mandate for reform and
the financial and political support needed
to carry it out, state prison administrators
energetically set about the implementation of the new remedial plan. After a
century of brutality and a decade of
stonewalling, reform proceeded at a
breathtaking p a c e . : "

Improvements were evident within
weeks of the close of the legislative session. Within two years, the evaluators
themselves could hardly believe that it
was the same system. Violence dropped
off sharply. As morale improved, prisoner
preoccupations and complaints moved
away from issues of survival to focus on
matters like family visitation and parole
eligibility.
Throughout this transitional period,
state officials looked to the evaluators as
an important resource, and a collegial
relationship developed between these outside experts and those able state administrators whose abilities were identified and
brought to the fore to carry through the
reforms.
Anumber of important reforms were
contingent upon new construction or the
design and acquisition of a new computer
system, and so were not completed until
1992.
Despite occasional frictions, setbacks,
or official second thoughts, the Tennessee
prison system had, by 1992, been dramatically made over. The Department of
Correction had internalized an ethos of
professionalism. Prison managers and
staff claimed the court-initiated reforms
as their own, and fairly so since it was
their hard work which had brought them.
to life. Despite some inevitable grandstanding and backsliding, the state's politicalleaders seemed to have learned the
lessons of history and resolved not to
force the court's hand again.
Post-Mortem

For all the gains won through the
Trigg/Grubbs litigation, the suit could not
address some of the most fundamental
problems of Tennessee's criminal justice
system. Grubbs prompted the creation of a
Sentencing Commission which overhauled
Tennessee's archaic penal code, but politicians flinched at squarely confronting the

question of how to rationally spend scarce
correctional dollars. Although courtinduced budget pressures somewhat constrained the state's incarceration rate,
Tennessee's rate, like America's, remains
among the highest in the world.
The lawsuit indirectly helped force an
improvement in conditions of confinement for pretrial detainees in local jails,
but could not compel reform of a corrupt
bail bond system. That system still causes
the pretrial detention of hundreds whose
only offense i~their poverty.
And, on a ~roader level, the litigation
prompted Tennessee, which has ranked
49th inper capita spending on education, to commit one-third of a billion dollars to its prison system, rather than to
other educational or social services that
address the underlying conditions which
foster crime and violence.
Those shortcomings are inherent limitations of prison conditions litigation. In
fact, the most important of Tennessee's
prison reforms were ones which the
lawsuits fostered, but could never
have compelled.
Plaintiffs' counsel and the courts recognized that their principal challenge was to
motivate the state itself to assume responsibility for prison conditions, and to
embrace reform as state policy, not mere
judicial mandate.
Success at meeting that challenge owed
much to individual players and to the
relationships that developed among them.
Most important, of course, were the judicial personnel. The three trial judges
shared uncommon courage, intelligence,
wisdom and dedication to constitutional
principles.
Throughout the difficult remedial phase
in federal court, Judges Morton and
Higgins demonstrated a keen sensitivity to
the political nuances of the case, and of
the interplay between the actions of the
district court and the state political
dynamics which would ultimately determine the fate of reforms. Without backing
down or compromising constitutional
principles, they applied the district
court's coercive powers with such skillfinesse, even-that it was always evident
to the public that it was the state's irresponsibility, not judicial activism, which
was to blame for the court's intrusion.
Crucial to the judges' ability to do so
were the diplomatic, political and technical skills of the Special Master, Patrick
McManus. While the judges maintained an
austere and intimidating aloofness,
McManus was their amiable liaison with
state officials. Mediating disputes, identifying and cultivating reformist elements in
OCTOBER 1993

3

state government, educating journalists
and coordinating technical assistance,
McManus fully merited]udge Higgins'
praise as the "father" of a reformed
Tennessee prison system.
The Special Master played "good cop" to
the judges' "bad cop" role: state officials
learned it was more productive to work
with the Special Master to address the
prisons' problems than to appeal his recommendations to the judges. As a result,
the ten-year remedial process took
remarkably little of the judges' time, given
the breadth and complexity of the many
issues addressed.
Also important were the personal qualities of the outside experts or "evaluators"
who assisted in the formulation of the
remedial plan and the monitoring of its
implementation. As important as their
technical expertise were their interpersonal skills which enabled them to establish a
collaborative relationship with state prison
managers.
Individuals also made a difference, for
good or illJ on the state's side of the case.
The cast of characters during nearly two
decades of litigation included a rich mixture of heroes and heavies:
• Governor Ray Blanton, who was
turned out of office early on charges
of selling pardons and later sent to
prison himself. He explained that he
was just trying to respond to the lawsuit by reducing overcrowding.
• An out-of-state cropduster who

assumed the identity of a physician
acquaintance in order to obtain the
prison system's post of Medical
Director. When, after a two-year
tenure (including attendance at the
prison commissioner's successful
hemorrhoidectomy), the imposter
was found out and jailed, state officials explll1ned that it never would
have happened if the court had not
ordered them to hire a medical
director for the prison system.
• Astring of corrupt, brutal, or merely
incompetent wardens, managers and
guards. The tradition they represented was personified by a former warden of Brushy Mountain Prison, who
looked like he had been sent by
Central Casting to play the role of the
folksy but sinister good-old-boy
Southern sheriff. He long presided
over a violent and racially repressive
regime, and his resignation marked
the passing of the old order. Asick,
fearful old man, he would finally be
4

OCTOBER 1993

around while relying on existing staff
and middle management. He demonstrated that the Department's large
ineffective bureaucracy contained a
pool of talent which, with the right
leadership and external support,
could provide the human capital for
reform.

• The eloquent, populist state legislator
who was re-elected while serving
time in federal prison on a tax conviction. At a dramatic moment during
the 1985 crisis, a majority of state
House members urged open defiance
of the federal court and threatened to
force adjournment of the Special
Legislative Session. The lawmaker,
who had been sentenced by the same
federal court that his colleagues now
proposed to defy, singlehandedly
turned the tide with a passionate, eloquent extemporaneous speech.
Invoking his own prison experience
and appealing to the memory of
Confederate forebears who had suffered in Yankee prisons, he persuaded his colleagues to respect the rule
of law and commit themselves to
prison reform. Aman whose gifts
were matched by self-destructive tendencies, he would later return to
prison himself, following a federal
probe of corruption in Tennessee
state government.
• The sentencing commission, and
especially its chair, one of
Tennessee's first women judges.
Vilified by police and prosecutors
and abandoned by the politicians who
appointed them, the Commission
took on the thankless task of reforming a penal code riddled with inconsistent punishments and lengthy sentences which the overcrowded prison
system could not accommodate.
• Steve Norris, a career state bureaucrat whose managerial ability, integrity and dedication to reform overcame
his lack of prior corrections experience. Norris was appointed commissioner in 1985 and presided over the
crucial first years of reform. He filled
several key positions with outsiders
and pruned some of the dead wood
that had accumulated in the staff of
the Department of Correction. But for
the most part he turned the system

• Statesmanlike defense counsel.
Tennessee attorneys general are
appointed by the state Supreme Court.
Therefore th~position is relatively
nonpoliticali;fls compared with most
other states;ih which the chief legal
officer is appointed by the governor
or is popularly elected. The attorneys
general and their deputies, while vigorously defending the case, provided
a counsel of moderation and responsibility within state government. They
helped conceive of the creative use of
outside experts to develop and monitor the remedial plan, and assumed
personal responsibility for ensuring
the state's fidelity to the terms of the
negotiated settlement.
• Republican Governor Lamar
Alexander. He exploited the prison
system for political purposes during
the first years of his administration.
But he also talked legislators out of
appealing the district court's ruling
and, in 1985, won their support for
policy changes that were essential to
reform.
• Democratic Governor Ned Ray
McWherter, Alexander's successor.
McWherter chafed at the very idea of
federal court constraints to his
authority. But he made implementation of the remedial plan a priority of
his administration and devoted great
personal energy and attention to
making it happen.
The ambigUity of individuals' roles and
motives belied the stark categories created by the legal system. At crucial junctures, convicts displayed great physical
and moral courage in speaking out
against the system's violence and corruption, while law enforcement officials dissembled. Individual guards mitigated the
system's brutality with acts of personal
kindness. When deteriorating conditions
and official irresponsibility spawned
riots, prisoners intervened at the risk of
their own lives to save hostage guards.
Nowhere were those human ambiguities
more evident than at an oxymoronic
"open house" held at the old Tennessee
THE NATIONAL PRISON PROJECT JOURNAL

State Prison in 1992, a few months after
Governor McWherter personally escorted
its last prisoner to a new institution.
Thousands came to the event, wandering
casually where beatings and rapes had
once been commonplace. Curiosity-seekers were titillated by tours of the old
death chamber and abandoned cellblocks. Children bantered and made
believe. Plaintiffs' counsel had their picture taken with the Commissioner.
Amore somber mood prevailed among
The Walls' former employees and inmates
and their family members. Like veterans
from opposing armies, they talked quietly
together, comparing memories and exorcising old, shared fears. It was the closest
thing to a wake that the old Tennessee
prison system ever received and better
than it deserved.
The Department of Correction is now
led by Christine Bradley, one of the
nation's first women to hold such a position. For her and many of her staff reform
represents a personal accomplishment to
be preserved. Key state political leaders
also are committed to the system's hard-

won improvements. But institutional memories are short, and the fiscal and political
pressures to backslide are enormous. As
with all constitutional protections, the
maintenance of constitutional conditions
in Tennessee's prison system will alway?
demand vigilance and advocacy. •
':.1,
./b

Gordon Bonnyman is a senior attor1U;J
with Legal Services ofMiddle Tenne.ssee
and was a lead attorney in the Ten1l;essee prison case from its inception·~tz
1976.
EDITOR'S NOTE:

Gordon Bonnyman mentions a number
of people who made a difference in the
Tennessee prison saga. Missing from that
list is Bonnyman himself who has been an
important player in the case since its earliest stages. He was co-lead counsel with
NPP lawyer Nan Aron at the state court
trial in 1977 and has been lead counsel
for the plaintiffs for the past 15 years. His
tenacity, his wisdom, his legal skill (and
his sense of humor) have all played a part
in the successful conclusion to the
Tennessee litigation.

u.s. Fails to Confonn to International
Human Rights Tenets
he per capita incarceration rate of
the United States is the highest in the
world. Indeed, in 1990-1991 the
United States imprisoned persons at a
higher rate than South Africa or the former Soviet Union. 1 With over one million
persons behind bars, it is not surprising
that allegati,flns of prisoners' human rights
violations are pandemic.
The protection of convicted prisoners
from torture or cruel, inhuman or
degrading treatment or punishment under
United States law derives from the Eighth
Amendment's prohibition against "cruel
and unusual" punishment. 2 Historically,
the Supreme Court "tended to treat prison
cases as raising relatively discrete issues
under the Eighth Amendment, calling for
standards relevant to specific issues.... "3
The Court's analyses in these cases were
properly directed to whether the conditions under which a prisoner was held
deprived him or her of the "minimal civilized measure of life's necessities,"4 a
standard which can be applied objectively.

T

THE NATIONAL PRISON PROJECT JOURNAL

In a series of cases beginning in 1976,
the U.S. Supreme Courtintroduced a
requirement that a prisoner must establish that prison officials acted with a culpable state of mind before a violation of
the Eighth Amendment will be found. This
legal standard is in direct conflict with
various international documents to which
the United States is subject.

1 Trigg v. Blanton, No. A-6047 (Chancery Court for
Davidson County, Tennessee, 1978) was not reported, but is discussed at some length in the later federallitigation. The federal case is reported as Grubbs
v. Bradley, 552 F. Supp. 1052 (N.D. Tenn. 1982).
The district court entered several later orders of
significance that were unreported, the most important of which was a 1985 ruling enjoining further
admissions to the state prison system pending alleviation of overcrowding in the state reception centers. (That order, and the events surrounding its
entry, were described in "Recent Federal Court
Orders Spur Tennessee Toward Prison Reforms,"
NPPJOURNAL, No.8, Summer 1986).
During the cdurse of the Grubbs proceedings,
other cases wer¢ consolidated with it. These included a successM 'challenge to racial discrimination in
prisoner housing and job assignments (Tuggle v.
Pellegrin, No. 3-83-1009, and Groseclose ex reI.
Harries v. Dutton, No. 3-84-0579 (M.D. Tenn.
1985) vac. 788 F. 2d 356 (6th Cir. 1986».
The Sixth Circuit consolidated several local jail
overcrowding cases in which state prisoners were
backed up in county facilities. These cases were
assigned to the Grubbs court, so that the formulation
and implementation of relief could be properly coordinated. Carver v. Knox County, 887 F.2d 1287 (6th
Cil'. 1989), Roberts v. Tennessee Dept. of
Correction, 887 F.2d 1281 (6th Cir. 1989).
The order which concluded the Grubbs litigation
is reported at_F. Supp._ (M.D. Tenn. 1993).

Seiter framed the issues before the Court
as follows:
This presents the questions
whether aprisoner claiming that
conditions ofconfinement constitute cruel and unusualpunishment must show a culpable state
ofmind on the part ofprison
officials and, if so, what state of
mind is required. 8

Subjective Component

The Court opened the door of a subjective inquiry when it introduced its "deliberate indifference" principle in Estelle v.
Gamble, a case involving an Eighth
Amendment challenge to the denial of
medical care. 5 Significantly, the Court did
not define precisely what state of mind
constitutes deliberate indifference. 6
Thereafter, in Whitley v. Albers, the Court
moved the issue of prisoners' rights violations further into the uncharted realm of
the psyche of prison officials by holding
that, in use of force situations, the Eighth
Amendment is violated only if prison officials use force "maliciously and sadistically for the very purpose of causing harm."7
In 1991, Justice Scalia in Wilson v.

In so framing the question, the Court
firmly entrenched a subjective component
in a determination of whether the rights of
a convicted person are violated by conditions of his or her confinement. The
Wilson Court held that all Eighth
Amendment challenges are subject to an
objective and subjective requirement: violation of the Eighth Amendment (use of
force or conditions of confinement)
occurs when prison officials impose conditions or practices that are sufficiently
OCTOBER 1993

5

objectively bad, and do so with a sufficiently "wanton" state of mind. 9Moreover,
Wilson required the prisoner to prove
both the objective and subjective elements
of the violation. lo
The next prisoners' human rights violation case to reach the Court was Hudson v.
McMillianY Hudson held that beating a
prisoner in restraints, when no force was
indicated, was a violation of the Eighth
Amendment because it inflicted unnecessary pain. 12 In its most recent decision
regarding the treatment a prisoner
receives in prison and the conditions
under which he or she is confined, Helling
v. McKinney,13 the Court reaffirmed its
requirements of both objective and subjective analyses in such cases.

International Law
The subjective component required in
conditions cases under United States
domestic law is incompatible with international standards. 14 The Universal
Declaration of Human Rights (hereafter
"Universal Declaration") at Article 5
states: "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment." 15 Prisoners are
required to be treated with a level of
respect that maintains the inherent dignity
and value they possess as human beings. 16
Article 5 does not distinguish between
"inhuman and degrading treatment or
punishment" arising from conditions of
confinement and such treatment or punishment arising from other circumstances.
Article 5 imposes a purely objective
standard. It cannot be interpreted to
require an inquiry into the state of mind of
the official subjecting the prisoner to inhuman or degrading treatment or conditions.
It is plain: no one shall be subjected to
"inhuman or degrading treatment or punishment": when a person is so subjected,
their human ri!.thts are violated. In effect,
the subjective inquiry places convicted
United States' prisoners outside the orbit
of the protection of international human
rights standards as established in the
Universal Declaration.
The International Covenant on Civil and
Political Rights (hereafter "the Covenant")
is in accord with and expands the rights
established by the Universal Declaration.
Article 7 reads: "No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment."17 In its
General Comments on Article 7, the United
Nations Human Rights Committee (hereafter the "Human Rights Committee") stated that the objective of Article 7 "is to protect both the dignity and the physical and
mental integrity of the individual."18 Article
6

OCTOBER 1993

7 imposes an affirmative duty on each State
party to afford protection against the acts
prohibited under it, "whether inflicted by
people acting in their official capacity, outside their official capacity or in a private
capacity."19
The fundamental human right standard
set out in Article 7 is incompatible with
any requirement of examination of the
state of mind of the public official inflicting
the proscribed treatment or punishment. .
The Human Rights Committee has interpreted Article 7 to allow no limitation: "no
justification or extenuating circumstance
may be invoked to excuse a violation of
Article 7 for any reasons...."20 This strongly supports the proposition that, under
international law, the existence of inhuman
treatment or punishment resulting from
conditions may not properly turn on the
culpability of a public official. By including
a subjective component, United States
domestic law provides for "justification or
extenuating circumstances." This is patently inconsistent with prevailing international
standards established in Article 7 of the
Covenant.
If prison conditions objectively amount
to cruel, inhuman or degrading treatment
or punishment, the presence or absence of
mental culpability is irrelevant. The bad
conditions alone should be sufficient to
constitute the prohibited treatment or punishment. 21 The violation of the human
rights of the prisoners under international
standards occurs because of the conditions, not necessarily because prison officials intended to inflict the consequences
resulting from the conditions. No circumstance whatsoever, including a lack of
mental culpability on the part of the perpetrator, is allowed to serve as a justification
for such treatment or punishment.
In its General Comments, the Human
Rights Committee has stated that a person
violates Article 7 whether he or she
"encouraged, ordered, tolerated or perpetrated" the prohibited acts. 22 This clause,
and particularly the use of the word "tolerated," would indicate that the absence or
presence of a bad state of mind is not relevant, and certainly could not exonerate a
prison official nor justify the prohibited
conditions. 23 The Committee has specifically stated that persons who violate Article
7 must be held responsible. 24
Similarly, Article 10 of the Covenant
states: "All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the
human person." This Article imposes a
positive obligation "toward persons who
are particularly vulnerable because of their
status as persons deprived of liberty," and

complements Article 7 of the Covenant. 25
Additionally, Article 10 prohibits convicted
prisoners from being "subjected to any
hardship or constraint other than that
resulting from the deprivation of liberty;
'" respect for the dignity of such persons
':.1 must be guaranteed under the same con'~ ditions as that of free persons."26
Where it is objectively demonstrated
that a prisoner's treatment or punishment
is inconsistent with Article 10, the human
rights of the prisoner are violated. The
state of mind of the official whose conduct, actions or inActions leads to treatment and conditi{)us that disregard the
intrinsic quality of a prisoner as a human
being is of no consequence under the
Covenant.
The Human Rights Committee has commented that treating prisoners with
humanity and respect for their human dignity "is a fundamental and universally
applicable rule," and that the rule applies
regardless of the material resources availableY If the availability of material
resources is of no consequence, a reasonable implication is that the state of mind of
prison officials who fail to apply the minimal standards, even because of lack of
funds, would not be relevant in determining the existence of human rights violations. Where the "universally applicable
rule" has been violated, the human rights
of the prisoners have been violated. This
would be true regardless of the state of
mind of prison offiCials.
Article 16 of the Convention Against
Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment28 is
also in accord with the proposition that the
violation of a prisoner's human rights does
not turn on a culpable state of mind.
Article 16 places a positive burden on each
State party to "undertake to prevent in any
territory under its jurisdictions...
acts of cruel, inhuman or degrading treatment or punishment...when such acts are
committed by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity."29 As is the case with the
other articles discussed above, Article 16
establishes an objective standard: the acts
prohibited by the article constitute human
rights violations regardless of the state of
mind of the official. Indeed, mere "acquiescence"30 is sufficient to establish wrongdoing, lending further support to the position that the requirement of proof of subjective intent in cases involving violations
of prisoners' human rights is inconsistent
with international standards.
(can't. an page 16)
THE NATIONAL PRISON PROJECT JOURNAL

A PROJECT OF THE AMERICAN CIVil L1BEhIES UNION FOUNDATION, INC.
VOL. 8, NO.4, OCTOBER 1993 • ISSN&148-2655

(en banc).

Cruel and Unusual
Punishment
Prisoners won a victory, or at least avoided
defeat, in the Supreme Court in Helling v.
McKinney, 113 S.Ct. 2475 (l993). The
immediate issue was exposure to environmental, or "second-hand," tobacco smoke.
However, the case presented a much larger
issue of Eighth Amendment interpretation,
and the Court addressed it directly.
The plaintiff in Helling, a Nevada state
prisoner, alleged that he was double-celled
with a five-pack-a-day smoker and that this
involuntary exposure to tobacco smoke constituted cruel and unusual punishment. The
Ninth Circuit affirmed a directed verdict
against him with respect to his immediate
symptoms, but held that he had stated a valid
Eighth Amendment claim with respect to the
risk of harm to his future health. It also stated that his damage claims were barred by
qualified immunity, leaving only the injunctive
claim in the case.
This decision was vacated and remanded
by the Supreme Court for reconsideration in
light of Wilson v. Seiter, 111 S.Ct. 2321
(l991) , which requires proof of a "subjective element>.' of deliberate indifference in all
Eighth Amendment cases. On remand, the
Ninth Circuit adhered to its previous decision, stating that Wilson did no more than
establish an additional element that the
plaintiff would have to prove. The Supreme
Court granted certiorari to review this second appellate decision.
In the Supreme Court, prison officials
advanced a position that, if accepted, would
have drastically limited Eighth Amendment
scrutiny of prison conditions. They argued
that the Amendment protects only against
present harms and not potential or future
harms. One federal appeals court had
already adopted this position in another
prison smoking case. See Clemmons v.
Bohannon, 956 F.2d 1525 (lOth Cir. 1992)
THE NATIONAL PRISON PROJECT JOURNAL

The Supreme Court categorically rejected
this radical attack on Eighth Amendment
jurisprudence, stating:
We have great difficulty agreeing
that prison authorities may not be
deliberately indifferent to an inmate's current health problems but
may ignore a condition ofconfinement that is sure or very likely to
cause serious illness and needless
suffering the next week or month or
year...
That the Eighth Amendment protects against future harm to inmates
is not a novel proposition. The
Amendment, as we have said,
requires that inmates be furnished
with the basic human needs, one of
which is "reasonable safety. " ... It
would be odd to deny an injunction
to inmates who had plainly proved
an unsafe, life-threatening condition in their prison on the ground
that nothing yet had happened to
them. ... We thus reject petitioners'
central thesis that only deliberate
indifference to current serious
health problems ofinmates is
actionable under the Eighth
Amendment.

113 S.Ct. at 2480-81 (citation omitted).
The Court cited exposure to communicable
disease, unsafe drinking water, exposed
Wiring, deficient firefighting measures, and
the risk of assault as the kinds of dangers
that have been addressed in prison litigation
but that the defendants' position, if adopted,
would exclude from Eighth Amendment
scrutiny.
The standard for determining whether such
risks actually violate the Eighth Amendment
remains nebulous. The Court adopted the
Ninth Circuit's formulation that the plaintiff
was entitled to try to prove "that his future
health is unreasonably endangered."
However, it added that "he must also establish that it is contrary to current standards of
decency for anyone to be so exposed against
his will and that prison officials are deliberately indifferent to his plight." 113 S.Ct. 2481

~
(emphasis supplied). It is difficult to understand how .l;gntemporary standards of decency could not be violated by acts that "unreasonably endanger" prisoners' health.
Analytically, too, it is unclear whether the
Supreme Court is suggesting that unreasonable risks in general may be constitutionally
permissible, or that different kinds of unreasonable risks may yield different results. The
Court added on this point that the trial court
must "assess whether society considers the
risk that the prisoner complains of to be so
grave that it violates contemporary standards
of decency to expose anyone unwillingly to
such a risk. In other words, the prisoner
must show that the risk of which he com- .
plains is not one that today's society chooses
to tolerate."
This elaboration adds verbiage but does
not help answer the question whether it is
the real quantum of risk or some social perception of a particular kind of risk that will
determine the outcome. Thus, while Helling
has ruled out the defendants' proposed evisceration of Eighth Amendment inquiry, it has
provided little certainty or definition to the
protections of the Cruel and Unusual
Punishments Clause.
It seems unlikely that this issue will be
resolved in McKinney's case. The Court noted
that he has been transferred to another
prison where he is not subject to the challenged conditions, and that a new smoking
policy in the Nevada prisons may minimize
his future risk and therefore his entitlement
to an injunction. It added that the defendants' deliberate indifference must be
assessed in light of their "current attitudes
and conduct," an assessment that would be
strongly affected by the promulgation of the
new smoking policy, which appears designed
to accommodate the needs of non-smokers
to some degree, although it does not guarantee them a smoke-free environment.
Interestingly, the Court did not suggest that
the case might be moot, even though this is
the usual disposition of injunctive cases
brought by individual prisoners who are then
transferred. See, e.g., Williams v. Griffin,
952 F.2d 820,823 (4th Cir. 1991);johnson
v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
OCTOBER 1993

7

The other question that Helling leaves
conspicuously open is the future of the
deliberate indifference requirement. Wilson
v. Seiter, which imposed the requirement,
was decided by a 5-4 majority, with the
Court's opinion authored by Justice Scalia
and the concurring opinion-which rejected
the deliberate indifference requirement-by
Justice White. In Helling, Justice White wrote
the majority opinion. However, there is no
hint of any effort at spin control in the dicta
about deliberate indifference. More importantly, Justice White is now off the Court.
Justice Scalia, on the other hand, was in dissent in Helling, joining Justice Thomas's
opinion. Justice Thomas argued in Helling,
as he did in Hudson v. McMillian, 112 S.Ct.
995, 1010 (1992), that there are "substantial doubts" whether prison conditions are
within the scope of the Cruel and Unusual
Punishments Clause at all, and stated that he
"might vote to overrule Estelle Iv. Gamble}"
if the issue were squarely presented. These
views are completely out of the mainstream-the Helling majority notes that it
was undisputed that prison conditions are
subject to Eighth Amendment scrutiny, 113
S.Ct. at 2480-and it is improbable that any
other Justice now on the Court, or likely to
be appointed during this Presidency, will
embrace them.
These points are important because the
meaning and scope of the deliberate indifference rule are far from settled, and it is a
near-certainty that the Supreme Court will be
required to revisit the subject in the next few
years. In view of the thin margin of decision
in Wilson, the changes in the Court's membership, and the fact that two Justices may
have removed themselves from the debate
entirely depending on the way future questions are framed, the prospects for future
development of Eighth Amendment jurisprudence are unpredictable.
Some of the open questions about deliberate indifference were aired in LaMarca v.
Turner, 995 F.2d 1526 (lIth Cir. 1993). In
that case, inmates at Glades Correctional
Institution in Florida alleged and proved an
appalling pattern of sexual assault and official inaction. The district court awarded
damages to eight of ten named plaintiffs
against the prison's former superintendent
and entered an injunction against the present
superintendent benefiting the class of present and former inmates at the prison.
On appeal, the Eleventh Circuit held:
To be deliberately indifferent, a
prison official must knowingly or
recklessly disregard an inmate's
basic needs so that knowledge can
be inferred. ... Because the Eighth
Amendment requires a subjective
standard, to demonstrate an offi8 OCTOBER 1993

cial's deliberate indifference, a
plaintiffmust prove that the official
possessed knowledge both ofthe
infirm condition and ofthe means
to cure that condition, "so that a
conscious, culpable refusal to prevent the harm can be inferredfrom
the defendant'sfailure to prevent
it. " ... Thus, ifan official attempts
to remedy a constitutionally deficient prison condition, but fails in
that endeavor, he cannot be deliberately indifferent unless he knows of,
but disregards, an appropriate and
sufficient alternative.

995 F.2d at 1535-36 (citations and footnotes
omitted) .

The application of this standard had substantial practical effect on the plaintiffs'
claims. The district court had held generally
that the plaintiffs could prevail based on evidence that the former superintendent knew
or should have known of the danger to the
plaintiffs during the "relevant time period."
On remand, the appeals court instructed, it
must consider for each assault what the
superintendent actually knew at the time of
that assault, including his knowledge of
alternative measures.
In adopting this "subjective" standard
(also descdbed as a criminal law standard)
based on what prison officials actually knew,
rather than what they should have known,
the Eleventh Circuit has aligned itself with
the First and Seventh Circuits on a disputed
point that the Supreme Court will eventually
have to resolve. See McGill v. Duckworth,
944 F.2d 344,348-49 (7th Cir. 1991), cert.
denied, 112 S.Ct. 1265 (1992); DesRosiers
v. Moran, 949 F.2d 15, 19 (1st Cir. 1991).
Contra, Youngv. Quinlan, 960 F.2d 351,
360-61 (3rd Cir. 1992); Redman v. County
ofSan Diego, 942 F.2d 1435, 1443 (9th Cir.
1991) (en bane), cert. denied, 112 S.Ct.
972 (1992); Berry v. City ofMuskogee, 900
F.2d 1489, 1495-96 (10th Cir. 1990).
The former superintendent's primary
defense on appeal was that he had done what
he could to improve safety at the prison, but
was unable to go further because of the bud-

getary constraints under which he worked.
The court of appeals was not convinced.
Although it accepted the premise that officials may not be held liable for matters outside their control, it held that the plaintiffs
~, had presented sufficient evidence that the
':! superintendent had the "capacity, within
";budgetary constraints, to improve prison
safety" and that he "could have,'but did not,
take steps to minimize" safety problems at
the prison. These included inadequate training, an inadequatelx supervised and
deployed staff, obstrpctions to surveillance,
the lack of a stand.~td procedure for investigating rape allegation, the lack of inmate
movement controls, and the failure to transfer known assailants to other facilities. Id. at
1537-38. The plaintiffs' evidence also supported their assertion that such action on the
superintendent's part would have ameliorated the "infirm conditions," meeting their
burden of proof under the causation
requirement of 42 U.S.C. § 1983.
The court's focus was very different in its
discussion of the injunctive claims. The new
superintendent's first argument, that
changed conditions obviated the need for
injunctive relief, received short shrift; the
court held that he had failed to "ensure that
GCl's past wrongs would not be repeated."
995 F.2d at 1542. Equally briefly, but more
substantially, the court rejected the argument that the new superintendent, whom the
district court had labelled "a dedicated public servant who is trying very hard to make
GCI an efficient and effective correctional
institution," should not be the subject of
injunctive relief. "In essence, he asserts that
the court should have focused on his deliberate indifference, instead of the institution's
historical indifference." However, the court
cited the Supreme Court's observation, made
in the Eleventh Amendment context, that official capacity suits "generally represent only
another way of pleading an action against an
entity of which an officer is an agent" and
are "in all respects other than name, to be
treated as a suit against the entity."
Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (citations omitted); accord, Hutto v.
Finney, 437 U.S. 678, 699 (1978) (plaintiffs' "injunctive suit against prison officials
was, for all practical purposes, brought
against the State.") Therefore, LaMarca held,
the substitution of a new named defendant
does not bar injunctive relief. 995 F.2d at
1542.
This laconic passage seems to be the first
explicit acknowledgement in a reported
decision of the distinction that the courts
must make in order meaningfully to preserve
injunctive jurisprudence in prison cases and
in other cases in which the deliberate indifference standard is applied. If deliberate
THE NATIONAL PRISON PROJECT JOURNAL

indifference were construed solely as a state
of mind of discrete individuals, many objectively intolerable conditions would be placed
beyond the scope of the Eighth Amendment.
As Justice White pointed out, concurring in
the result in Wilson v. Seiter:
Inhumane prison conditions often
are the result ofcumulative actions
and inactions by numerous officials
inside and outside a prison, sometimes over a long period oftime. In
those circumstances, it is far from
clear whose intent should be examined, and the majority offers no real
guidance on this issue. In truth,
intent simply is not very meaningful
when considering a challenge to an
institution, such as a prison system.
Seiter, III S.Ct. at 2330.
LaMarca, with its reference to "the institution's historical deliberate indifference"
(emphasis supplied), suggests that in
injunctive cases, the deliberate indifference
inquiry focuses on the collective performance of state officials rather than the consciousness of any individual defendant or
group of defendants. This approach is consistent with prior law that defined deliberate
indifference as including "'systematic or
gross deficiencies in staffing, facilities,
equipment or procedures.'" French v.
Owens, 777 F.2d 1250, 1254 (7th Cir.
1985), cert. denied, 479 U.S. 817 (1986),
quoting Ramos v. Lamm, 639 F.2d 559, 575
(10th Cir. 1980), cert. denied, 450 U.S.
1041 (1981). And if official capacity means
a suit against "the entity of which an officer
is an agent," that collective assessment
extends, in Justice White's words, to "officials inside and outside a prison"-including the members of the state or municipal
legislature.
This approach disposes of the "cost
defense" issue that has troubled prison litigators since Wilson v. Seiter, which raised
it but did not resolve it. There is no question
that there is a.cost defense in personal
capacity damage cases, to the extent that
particular officials work under budget constraints that limit their freedom of action.
However, if injunctive cases are deemed to
be against the governmental unit as such,
including their budgetary decision-makers,
there is no place for the defendants to hide
once the plaintiffs have shown the existence
of objectively cruel conditions.
Adifferent problem of application of the
deliberate indifference standard is presented by LeMaire v. Maass, 1993 WL 304627
(9th Cir., July 21,1993). That case was filed
by an inmate in the Disciplinary Segregation
Unit of the Oregon State Prison challenging
various conditions and practices in that unit;
the parties stipulated that the district court's
THE NATIONAL PRISON PROJECT JOURNAL

injunction would apply to all persons similarly situated, and therefore no class was
certified. The district court had found several of the unit's practices unconstitutional
and enjoined them. LeMaire v. Maass, 745
F.Supp. 623 (D.Ore. 1990). The appeals;
court vacated the injunction and remanded,':,!,
reversing parts of the district court's deci-'"
sion outright and severely limiting others. :"'
Space precludes discussion of the details
of LeMaire's holdings as to segregation ';,
practices. However, the LeMaire panel's:theoretical starting point was that prisonpolicies intended to maintain discipline are not
governed by Wilson v. Seiter's deliberate
indifference standard; rather, they violate
the Eighth Amendment only if they are
imposed "maliciously or sadistically." This
is the standard that the Supreme Court has
applied to uses of force by staff. Hudson v.
McMillian, 112 S.Ct. 995 (1992); Whitley v.
Albers, 475 U.S. 312 (1986).
The Supreme Court has not explicitly
resolved this point, and its language can be
selectively quoted to support either position.
In Whitley, the Court held that the "malicious or sadistic" standard should be
applied to uses of force to control a prison
disturbance. It cited in support both "the
necessity of balancing competing institutional concerns for the safety of prison staff or
other inmates" and the inappropriateness of
"critiqu[ing] in hindsight decisions necessarily made in haste, under pressure, and
frequently without the luxury of a second
chance." 475 U.S. at 320. Both factors were
also cited in Hudson, which extended the
malicious and sadistic requirement to all
use of force cases.
What is unusual about LeMaire is that its
holding squarely contradicts a very recent
en bane decision of the Ninth Circuit; in
fact, it reflects a continuation of the dispute
in that case. Judge Trott, the author of the
LeMaire opinion, also wrote the initial panel
opinion in Jordan v. Gardner, 953 F.2d
1137 (9th Cir. 1992), declining to apply the
deliberate indifference standard to a prison
search practice. 953 F.2d at 1144 n. 3. On
rehearing, the en bane court explicitly
rejected that concluSion, holding that the
necessity to make decisions "in haste, under
pressure" is the factor that invokes the malicious and sadistic standard. Jordan v.
Gardner, 986 F.2d 1521, 1529 (9th Cir.
1993) (en bane); accon!, Morgan v.
District ofColumbia, 824 F.2d 1049,105758 (D.C.Cir. 1987); Fisher v. Koehler, 692
F.Supp. 1519, 1562 n. 56 (S.D.N.Y. 1988),
aff'd, 902 F.2d 2 (2nd Cir. 1990). Judge
Trott dissented vehemently from the en bane
decision inJordan, and the same polemical
tone permeates his majority opinion in
LeMaire.

It remains to be seen whether Judge
Trott's LeMaire opinion turns out to be anything more than an incident in the turbulent
internal politics of the Ninth Circuit. The
plaintiff has sought rehearing en bane, and
the dissenting judge-a member of the
Jordan majority-has filed an amended
opinion suggesting that the case is moot.
(Before the decision, the court had been
notified that the plaintiff had been transferred to another state. As noted earlier,
such transfers generally result in a finding
of mootness. In~ddition, the prison superintendent had r:~presented that it was "at
best uncertain;'; that the plaintiff would be
returned either to Oregon or to disciplinary
segregation, and that in any case both the
physical facilities and the means of controlling disruptive inmates had changed since
the district court decision.)
Whatever the ultimate result, LeMaire
graphically demonstrates the latitude for
disagreement over the application of the
deliberate indifference standard, and the
likelihood that the Supreme Court will be
asked to revisit the meaning of the Cruel and
Unusual Punishments Clause for prison conditions sooner rather than later.

Other Cases
Worth Noting
u.s. COURT OF APPEALS
Procedural Due Process-Property
Confiscation and Destruction of
Legal Materials
Zilich v. Lucht, 981 F.2d 694 C3rd Cir.
1992). At 695: '" [m] any courts have found a
cause of action for violation of the right of
access stated where it was alleged that
prison officials confiscated and/or destroyed
legal materials.' Simmons v. Dickhaut, 804
F.2d 182 (1st Cir. 1986)." [String cite omitted]. The availability of a post-deprivation
remedy is irrelevant. The rule of Parratt V.
Taylor does not apply to court access claims.
False Imprisonment
Qualified Immunity
Slone V. Herman, 983 F.2d 107 (8th Cir.
1993). The sentencing judge gave the plaintiff three years in prison and a month later
resentenced him to probation. Prison officials told the court that they had decided not
to release the plaintiff because they did not
believe its action was consistent with Missouri statutes. The court reiterated its direction and the defendants pursued a writ of
prohibition and other remedies. The plaintiff was not released until eight months later.
OCTOBER 1993

9

At 109: The defendants have the burden of
pleading and proving qualified immunity.
They are not entitled to qualified immunity
on this record. The question is not whether
Missouri sentencing law is clear but whether
the plaintiff had a clearly established right to
be released from prison once the order
became final and nonappealable. At 110:
We conclude that when judge Ely's
order suspending Slone's sentence
became final and nonappealable, the
state lost its lawful authority to hold
Slone. Therefore, any continued
detention unlawfully deprived Slone
ofhis liberty, and a person's liberty
is protectedfrom unlawful state
deprivation by the due process clause
ofthe Fourteenth Amendment. . . .
Moreover, contrary to defendants'
misplaced assertions, Slone's liberty
interest was clearly established
because it was based on afinal and
nonappealable court order. Whether
or not defendants agreed with the
order or thought that it was lawful
does not diminish Slone's liberty
interest or make his liberty interest
less clear.

Use of Force
Personal 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 slate 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 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 1l'ct." 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.

10

OCTOBER 1993

Pro Se Litigation

Appointment of Counsel
Kilgo v. Ricks, 983 F.2d 189 (lith Cir.
1993). The district court should reconsider
the plaintiff's request for counsel. Civillitigants, 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."
(l93) Though this plaintiff's factual and leg~l
claims were straightforward, other factors ;'i"
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." (l93) 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 ofthe less substantive
obstacles, it should not erect unnecessary procedural barriers which
many pro se litigants will have great
difficulty surmounting without the
assistance ofcounsel.
Searches-Person-Prisoners
Privacy
Fortnerv. Thomas, 983 F,2d 1024 (lith
Cir. 1993). At 1030: "We are persuaded to
join other circuits in recognizing a prisoner's
constitutional right to bodily privacy because
most people have 'a special sense of privacy
in their genitals, and involuntary exposure of
them in the presence of people of the other
sex may be especially demeaning and humiliating.'" (l030, citation omitted) The Turner
standard applies to such claims. Defendants
are entitled to qualified immunity since the
right has not previously been recognized in
this circuit.
Medical Care
Watson v. Caton, 984 F.2d 537 (lst Cir.
1991). An allegation that a prison nurse
refused to treat the plaintiff for a serious injury
on the ground that the state was not responsible for injuries incurred before the plaintiff
entered prison was not frivolous under the
deliberate indifference standard.
Use of Force-Restraints
Trial
Lemons v. Skidmore, 985 F.2d 354 (7th
Cir. 1993). The plaintiff brought suit for use
of force. His attorney asked that he not
appear in handcuffs and leg irons before the
jury. The magistrate judge said that since he
was in Department of Correction custody,
they set the rules. The jury found for the
defendants. At 356:
The magistrate judge abused his

discretion by relying on the self-serving opinion offellow penal officers
ofthe defendants and not holding a
hearing to determine what, 11 any,
restraints were necessary, taking no
steps to minimize the prejudice to
Mr. Lemons in haVing him appear to
be a violent and dangerous person
who required leg irons and handcuff
restraints, and in failing to give a
curative instruction or take any
other ameliorative steps.
The court does iipt decide any constitutional question but uSt}!; its supervisory authority
over federal couit proceedings. However, it
relies on the constitutional right to a fair trial
in a civil case and on the "extreme need"
standard in federal criminal trials to conclude that the judge must hold a hearing at
which "the state may try to prove that
restraints are necessary"; the need is to be
determined based on the prisoner's "history
of violence in the face of maximum security
precautions." (356) Even if restraints are
necessary, they must be the minimum necessary, a curative instruction should be given,
and the appearance of restraints should be
minimized.
The error was not harmless; it "goes to the
central issue in the case" because it suggested
that the plaintiff was dangerous and violent so
that whatever the guards did was necessary.
Searches-Person-Prisoners
Negligence, Deliberate
Indifference and Intent
jordan v. Gardner, 986 F.2d 1521 (9th Cir.
1993) (en banc). Clothed pat frisk searches
of female inmates by male guards violated the
Eighth Amendment. The court does not
resolve the case based on the Fourth
Amendment because prisoners' privacy rights
are extremely limited and because the gravamen of these plaintiffs' complaint is that the
searches inflict great pain and suffering. The
district court found that there was a high
probability of "great harm, including severe
psychological injury and emotional pain and
suffering," to some plaintiffs, based in part on
their histories of verbal, physical and sexual
abuse by men, and supported by the testimony of ten expert witnesses including prison
staff members. The district court's finding
was not clearly erroneous. At 1526: "We are
satisfied that the constitutional standard for a
finding of 'pain' has been met in this case."
The searches are not justified. The injunctions have been in effect for three years without any claim by the defendants that security
has been compromised; security has admittedly been maintained by the establishment of
random and routine searches by female
guards. The defendants conceded that not a
single bid had been refused, promotion
THE NATIONAL PRISON PROJECT JOURNAL

denied, nor guard replaced as a result of the
ban. The district court's conclusion that the
searches inflicted pain without penological
justification (Le., were "unnecessary") was
therefore consistent with the evidence
(1527) .
The policy was adopted with deliberate
indifference. The Superintendent testified that
the policy was not required for security purposes and was adopted without a great deal of
knowledge about its impact on the inmates,
yet before it was implemented he was urged
by members of his own staff to abandon it.
The policy remained in place despite the
severe reaction suffered by one of the first
prisoners subj ected to it, and the defendants
persisted in trying to get it reinstated despite
all the evidence in the trial record about its
consequences. At 1529: "The wish to avoid a
lawsuit from an employees' union, however,
does not provide a justification for inflicting
pain of a constitutional magnitude upon
inmates...."
The Superintendent "urges, in effect, 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...." (1530)

Use of Force
Qualified Immunity
Res Judicata and Collateral Estoppel

.. .Even given their distinctive
character as agreements backed by
the authority ofthe court, consent
decrees are to be interpreted as contracts .... The binding force ofa
consent decree comes from the
agreement of the pal'ties...Afederal
district court may not use the power
ofenforcing consent decl'ees t o : "
enlal'ge or diminish the duties on
which the parties have agl'eed and ',',
which the court has approved...
;;,:

Although a district court "may, of course,
modify a consent decree to impose new
duties upon a party" (1050), the basic modification procedures were not pursued here.
At 1050:
... To modify a consent decree to
impose new obligations, a district
COUl't must at a minimum (1) provide specific notice that it is contemplating the imposition ofobligations in addition to those contained
in the decree; (2) allow the parties
an opportunity to present I'elevant
evidence on the needfor the additional obligations and the proper
character of those obligations; and
(3) issue specific findings that support a determination that modification is warranted.

Kane v. Hargis, 987 F.2d 1005 (4th Cir.
1993). l.t would have been "apparent" that a
200-pound police officer repeatedly smashing
the face of a 100-pound woman into the pavement while arresting her violated the Fourth
Amendment, and the officer accordingly was
not entitled to qualified immunity.
The fact that a state court found the plaintiff guilty of attempting to impede an officer
did not estop her from alleging misuse of
force because under Virginia law, a judgment
of conviction or acquittal in a criminal proceeding does not establish in a subsequent
civil proceeding the truth of the facts on
which it was based (1008).

Pro Se Litigation
Faile v. Upjohn Co., 988 F.2d 985 (9th Cir.
1993). The rule of Houston v. Lack, that
prisoners' pro se papers are deemed filed

Remedial Principles
Modification ofJudgments

Exhaustion of Remedies
Medical Care

Johnson v. Robinson, 987 F.2d 1043 (4th
Cir. 1993). A 1987 post-judgement stipulation provided that prison officials would
perform a number of actions, mostly related
to environmental health. Asubsequent contempt motion resulted in the defendants'
prOViding a timetable of projected dates for
completing some eighty-three specific
repairs. It was submitted to the court as part
of monthly status reports but was never presented as a formal settlement agreement or
proposed consent decree. On plaintiffs'
motion, the court converted the schedule to
an order. At 1046:

Thomas v. James, 809 F.Supp. 448
(W.D.La. 1993). The plaintiff's medical care
claim need not be presented to a medical
review panel as reqUired by state law for malpractice cases because the plaintiff alleges
that the defendants were "callous, deliberate
and intentional" in their failure to provide
medical treatment, and malpractice is defined
as an unintentional tort.

THE NATIONAL PRISON PROJECT JOURNAL

when they are turned over to prison authorities for mailing, is applied to the service of
discovery responses. At 988: "[W] e see no
reason to treat other civil 'filing' deadlines
differently than the deadline for filing a civil
appeal." Id.: "Similarly, as regards application of the Houston rule, there is no meaningful distinction between 'service' deadlines
and those for 'filing"'.

DISTRICT COURTS

Federal Officials and Prisons
Pre-Trial Detainees
Physical Conditions
Qualified Immunity
Hygiene
Young v. Keohane, 809 F.Supp. 1185
(M.D.Pa. 1992). At 1193: "What is 'clearly
established' law for qualified immunity purposes, however, commands only some, 'not
precise factual correspondence between relevant precedents and the conduct at issue.'. .
. . Accordingly, the defendants are charged
with the responS\bility of 'consider[ing] the
legal implicatioi}~ of their actions,' . . . and
'relat [jng] estiblished law to analogous factual settings. '" [Citations omitted]
The defendants were not entitled to qualified immunity. The court finds "objectively
unreasonable in light of both existing precedent and plain common sense" confinement
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 distressing 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 (imposed on all
pre-trial detainees at LeWisburg) 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."

Attorneys'Fees
Damages-Assault and Injury
Pendent and Supplemental
Jurisdiction
Velazquez Hernandez v. Morales, 810

F.Supp. 25 (D.P.R. 1992). AjUry awarded
$500,000 to the estate of a prisoner beaten to
death by prison guards and $500,000 to his
mother on her supplemental tort claim.
The dismissal of one of several defendants
does not necessarily indicate that a plaintiff
has not succeeded on all claims, since a
claim may still survive as to other defendants.

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
OCTOBER 1993

11

J

claim. At 760:
Grossly incompetent and recklessly inadequate examination by a
licensed physician is a deliberately
indifferent examination. This is
ineluctably so when the manifested
symptoms scream ofa diagnosis that
virtually lies within the knowledge
ofa lay person.

• • •
Courts are reluctant to raise a
misdiagnosis to the level ofa constitutional [761} violation, but will do
so when the failings in the process or
outcome ofsuch a misdiagnosis are
particularly glaring. This is not a
case where the evidence demonstrates a carefully thought-out medical decision.

Eye Care
Confiscation and Destruction
of Legal Materials
Hygiene
Williams v. ICC Committee, 812 F.Supp.
1029 (N.D. Cal. 1992). The plaintiff's allegation that he was deprived of his eyeglasses
although he is legally blind states a claim for
deliberate indifference to medical needs.
The allegation that the plaintiff was
deprived of his legal materials and was
therefore unable to amend his complaint in
another action states a court access claim.
At 1032: "This court considers the deliberate denial of toilet paper and soap for any
extended period to be more significant than
a de minimus [sic] intrusion and certainly to
constitute a denial of the 'minimal civilized
measure of life's necessities.'"

Correspondence-Legal and Official
Access to CourtsPunishment and Retaliation
Hindliter v. Hungerford, 814 F.Supp. 66
(D.Kan. 1993). At 68: "While the inadvertent, negligent opening of legal mail does not
violate the Constitution, the courts have not
hesitated to find a violation where the mail
has been read or where a policy of opening
mail outside inmates' presence has been
shown." (Citations omitted.) The plaintiff's
allegation that prison officials transferred
him in retaliation for his legal communication, based on information that they could
only have obtained from his legal mail,
raised a triable issue of fact barring summary judgment as to his claim of mail opening
and also supported a claim of an unconstitutional retaliatory transfer (68).

Pleading-Discovery
Cecere v. County ofWestchester, 814
F.Supp. 378 (S.D.N.Y. 1993). The plaintiff
alleged that he had been attacked by other
12

OCTOBER 1993

inmates as a result of overcrowding and
inadequate protection.
At 380:
The complaint in this case contains only conclusary allegations
concerning inadequate safety precautions. But detailed information
on that subject is not readily available to the plaintiffand hence otherwise insufficient allegations may
suffice in the first instance. If a
party submits all ofthe information .',
available to that party without discovery, and it supports an inference
that a legal standard has been violated, it may be necessary to authorize at least limited discovery to
develop whether or not dismissal of
the complaint at that stage would
constitute a miscarriage ofjustice.
The court denies the defendants' motion to
dismiss, but "grant[s] them permission to
make a motion for summary judgment after
responding to all reasonable requests for
documents" about the inCident, the injuries,
and safeguards against such inCidents, and
directs the defendants to prOVide plaintiffs'
counsel with any such documents.

Suicide Prevention
Hare v. City ofCorinth, Miss., 814
F.Supp. 1212 (N.D.Miss. 1993) The defendants are not entitled to summary judgment
on qualified immunity in a jail suicide case
in which "a chemically dependent, youthful,
first-time offender, undergoing withdrawal
and depression, and who had made a threat
of suicide and exhibited unstable behavior in
the hours preceding her death, was placed
alone in a cell that allowed no full time
observation" and in which there had been
another suicide three and a half months
earlier (1322).
Contradictory evidence as to the municipal
response or lack of it to the previous suicide
and the adequacy of defendants' training
presented a jury issue as to municipal
liability.

NON-PRISON CASES
Judicial Disengagement
Consent Decrees
*Still's Pharmacy, Inc. v. Cuomo, 981
F.2d 632 (2d Cir. 1992). At 639:
The district court correctly denied
the State's motion to add a sunset
clause to the Settlement Order.
Although we agree that a consent
decree is not "intended to operate in
perpetuity, " Board of Educ. of Okla.
City v. Dowell..., we believe that the
State's motion is premature. The
cases cited by the State in support of

its position involve motions to dissolve injunctions or consent decrees
rather than motions to add asunset
clause to providefor dissolving a
consent decree sometime in the
future....

• • •
.... When the State concludes that
the specific wrong that the
Settlement Order was drafted to cure
no longer exists, it should move to
dissolve the Settlement Order. Until
that time, the lhclusion ofa sunset
clause in the Sflhlement Order
would be based on speculation as to
when the Settlement Order no longer
would be necessary.
The settlement in this case involved the
method of calculating prescription drug
prices to be paid to pharmacists as health
care providers for Medicaid reimbursement.

FEDERAL RULES DECISIONS
In Forma Pauperis
Coleman v. St. Vincent de Paul Society,
144 F.R.D. 92 (E.D.Wis. 1992). The IFP
statute does not authorize the waiver of witness fees for trial subpoenas; however, it
does authorize the government's advancing
these fees to the witness, but only "after a
preliminary and complete showing of the
materiality and neceSSity of each witness."
(96) The court authorizes the subpoenaing
of seven of the plaintiff's 13 proposed
witnesses.
Ayres v. Eggers, 145 F.R.D. 99 (D.Neb.
1992). Aprisoner proceeding IFP with
appointed counsel is permitted to continue
his IFP status after receiVing a $30,000 settlement for a vehicular accident. The plaintiff argued that he had child support obligations and future medical expenses that the
prison would not pay. At 101: "It is not the
object of the court to require a litigant to
spend his last dollar in supporting litigation
in order to qualify for in forma pauperis
status." At the end of the case, if the plaintiff
loses and has not used his money for medical and child support purposes, he will be
directed to pay his attorneys a partial fee.
The plaintiff is reqUired to document spending from the settlement and restrict it to the
stated purposes.

Intervention-Class ActionsCertification of Classes
Disabled
Personal Involvement and
Supervisory Liability
Clarkson v. Coughlin, 145 F.R.D. 339
(S.D.N.Y. 1993). Additional plaintiffs are
permitted to intervene in a case pled as a
THE NATIONAL PRISON PROJECT JOURNAL

l

!

I
statewide class action on behalf of hearingimpaired inmates. The motion is timely
because the litigation is in the early stages,
and the intervenors have potential claims
with questions of law or fact in common
with the present plaintiffs. The court
includes plaintiffs from the Sensorially
Disabled Unit (SDU), even though SDU conditions are not at issue, because of the
defendants' power to move inmates in and
out of the SDU.
The court certifies sub-classes of present
and future male and female deaf and hearing-impaired prisoners who are "discriminated against, solely on the basis of their disability, in receiving the rights and privileges
accorded to all other inmates." (347) The
female subclass meets the numerosity

THE NATIONAL PRISON PROJECT JOURNAL

requirement, even though only seven members have been identified, since the problems faced by these prisoners are "systemic," the population is "inherently 'fluid, '"
and the defendants admit considerable difficulty identifying and tracking these individuals. The male class of at least 49 inmates
meets the numerosity requirement despite ".,
the defendants' attempt to discredit the aCCH,
racy of their own records.
The plaintiffs are permitted to amend the
complaint to assert a claim under the
Americans with Disabilities Act.
<,

Contempt
Crowding
Stone v. City and County ofSan
Francisco, 145 F.R.D. 553 (N.D.Cal. 1993).

Coercive contempt fines did not accrue while
a contempt order was stayed pending appeal
even though the order was affirmed. This
holding does not rob the underlying injunction of all effect pending appeal because in
this kind of case the court does not lose
jurisdiction entirely over enforcement of the
judgment.
As of this January 1993 opinion, fines for
violation of a crowding order had accrued
since the September 1992 affirmance of the
contempt order. •

,

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

OCTOBER 1993

13

I

Virginia Prisoners Take Steps
to Shun Violence

been a marriage counselor and had
marched with Martin Luther King Jr. A
course in nonviolent conflict resolution,
he said, might even be appropriate for
correctional officers and staff.
Assistant Warden Taylor, along with
Marie Millard, operations officer at
Augusta, and prison chaplin Jim Roepke,
sponsored the program.
these writings affected their lives.
n January 9, 1993, inmates, prison
Like other large maximum security prisAt graduation, inmates in denim and a .
staff and peace activists took part
ons, Augusta is plagued with overcrowdhandful of guests sat in plastic chairs li~~
in an unusual graduation ceremoing, too few jobs for inmates, and racism.
tening intently as McCarthy told them, ,;'It
ny at the Augusta Correctional Center, a
According to the }articipants, the course
takes courage to reject the norms of vioVirginia state prison. The event was held
begins to addre#the problems caused by
lence ... we are a violent society. When
in a large, yellow, cinderblock room at the
these issues. ..,~
the country goes to war and uses
maximum security facility near Staunton,
James Ray Todd, one of the
graduates, said, "I didn't believe
in peace, it was an alien concept
to me. [This course] changed
my way of thinking."
Another prisoner stated, "I've
been a violent person all of my
life. In recent weeks some incidents arose in which I probably
would have become violent, but
the things I've learned through
this course made me talk back
instead of throw a punch."
Giarratano and Stepp had difficulty convincing some of the
men to take part. Graduate
Daniel O'Biren joked, "They
promised me parole and pizza if
I would get involved. I didn't get
either, but I got a lot out of the
program."
Colman McCarthy remarked
that it is difficult to be an advocate of peace, especially in a
prison setting. He plans to use
this experience as a model for
future courses in other Virginia
prisons. He has already offered
the program as a correspondence course taken by more
than 100 inmates in prisons
A participant'in the Alternatives to Violence course receives his certificate of completion
throughout the nation.
watched by Joe Giarratano (far left) and Colman McCarthy (right).
McCarthy heads the Center for
Peace in Washington, D.C., and
teaches similar courses at a local D.C. high
bombers, its OK-it's patriotic-but
Virginia. Nine inmates received certifischool and the University of Maryland.
cates of completion of a course called
when poor people commit violent acts,
This fall he will teach the course at the
they go to prison."
Alternatives to Violence.
Georgetown University Law Center.
He explained that his course teaches
The program was the brainchild of
The success of the course depended
conflict resolution without violence, and
inmates Joe Giarratano and Kelly Stepp,
upon the cooperation of a number of peothat conflicts result from a lack of awarewith journalist and Washington Post
ple and institutions that frequently find
columnist Colman McCarthy providing the
ness, not good versus evil.
themselves on opposing sides: the prison
During the ceremony, Assistant Warden
syllabus. It is the first time a program of
administration, chaplaincy staff, inmates
F. Stuart Taylor recalled when Giarratano
this nature has been offered in a Virginia
and peace activists.
prisQn.
and Stepp first approached him with the
Only two years ago Joe Giarratano was
The lO-week course had students readidea. He "felt in [his] gut that this was the
under sentence of death. While on
ing essays from the works of peace
right thing" to support. Taylor added he
Virginia's death row, he filed and won
activists such as Ghandi, Leo Tolstoy,
had real pride in the outcome of the
many suits against the Department of
Dorothy Day and Martin Luther King Jr.
course and remarked that before his
They then wrote weekly essays on how
Corrections that resulted in changes in
Department of Corrections career he had

O

14 JULY 1993

THE NATIONAL PRISON PROJECT JOURNAL

conditions on death row. He also filed a
case on behalf of a fellow death row
inmate in which he contended that indigent and handicapped death row inmates
should be entitled to free attorneys. The
U.S. Supreme Court heard the case on an
appeal filed by the Commonwealth of
Virginia.
Giarratano's own case became public
when doubts about his guilt caused a
grass roots campaign to save him from
the electric chair. More than 18 newspapers throughout Virginia demanded a new
trial for him.
In February, 1991, two days before the
execution, and in the face of national
attention, Governor Wilder commuted
Giarratano's death sentence, stating that
he was not sure of Giarratano's guilt.
However, Wilder left it to Attorney
General Mary Sue Terry to grant the prisoner another day in court. She has
refused to do so.

THE NATIONAL PRISON PROJECT JOURNAL

Today, Joe Giarratano's lawyers contih~
ue to investigate the circumstances of We
crime that sent him to prison in 1979: ;"
Kelly Stepp, who coordinated the course
with Giarratano, has just had his parole
denied for the seventh time after serving
13 years for burglary. He still has hopes
of returning to his family after his next
parole hearing.
Following the ceremony, the graduating
prisoners and their guests went to the
chow hall, where McCarthy and Russ
Ford, director of chaplains, addressed

almost 100 inmates about the program.
Marie Deans, director of the Virginia
Coalition ofJails and Prisons, and coordinator of Murder Victims' Families for
Reconciliation, spoke, praising the program. Rev. Jim Reopke, prison chaplain
and co-sponsor of the program, said that
since the initial course had been completed, he expects upwards of 50 requests
from other inmates to take the next
course.
Giarratano, who has been in prison
since 1979 and.will not be eligible for
parole until 2004, was delighted with the
graduation and'said, "Nothing in
prison-or the world-will change
overnight, but we've made a good beginning." •

Esther and Franklin Schmidt arefreelance writers andphotographers who
have beenfollowingJoe Giarratano's
case since 1987.

OCTOBER 1993

15

-

HUMAN RIGHTS· con'tfrompg. 6
Conclusion

The so-called subjective element of
judicial inquiries into conditions under
which prisoners are held places the
United States in a state of nonconformity
with international standards relating to
prisoners' human rights. 31 The state-ofmind test adopted by the United Sates
Supreme Court affords a lesser level of
human rights protection to prisoners in
this country than that proclaimed at the
international level. This is a consequence of a judicial philosophy that
attempts to limit the protections afforded
prisoners regarding their treatment or
punishment and conditions of confinement. Measured by international law, the
United States is "deliberately indifferent"
to the violations of the human rights of
its prisoners.•

Mohamedu]ones is a staffattorney at
the NPP.
EDITOR'S NOTE:

It must be remembered, however, that
our Supreme Court has been hostile to
the idea of following international law.
Justice Scalia, writing for the Court, rejected evidence that every other Western
democracy prohibited the imposition of
the death penalty on juveniles:
"We emphasize that it is American conceptions of decency that are dispositive...
While the practices of other nations, particularly other democracies, can be relevant
to determining whether a practice uniform
among our people is not merely an historical accident, but rather so 'implicit in the
concept of ordered liberty' that it occupies
a place not merely in our mores, but, text
permitting, in our Constitution as well...
they cannot serve to establish the first
Eighth Amendment prerequisite, that the
practice is accepted among our people."
Stanford v. Kfl,ntucky, l09 S. Ct. 2969,
2975 n.l. (1989)
I"U.S. Now Leads World in Rate of Incarceration,"
NPPJOURNAL, Vol. 6, No.1, Winter 1991. The

United States imprisoned black men at a higher
rate than even apartheid South Mrica.
Welling v. McKinney, No. 91-1958, (Opinion of
White, J.), slip op. at 9 (Supreme Court, 1993)
("It is undisputed that the treatment a prisoner
receives in prison and the conditions under which
he is confined are subject to scrutiny under the
Eighth Amendment."); Hudson v. McMillian, 112
S.Ct. 95 (1992); Wilson v. Seiter, 111 S.Ct. 2321
(1991); Graham v. Connor, 108 S.Ct. 1865
(1989); Rhodes v. Chapman, 452 U.S. 337
(1981); Estelle v. Gamble, 429 U.S. 97 (1976);
Trop v. Dulles, 356 U.S. 86 (1958).
3"Prisoners' Rights," ACLU National Prison Project,
presented American Civil Liberties Union's Biennial
16

OCTOBER 1993

---~---_._-----_

...

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

~
~
~
~
~
~
~
-

Conference in Atlanta, Georgia, Qune 16-10,
1993) (pp.l0-12).
4Rhodes v. Chapman, 452 U.S. 337 (1981).
5429 U.S. 97 (1976).
6See n.3, supra, at 10-16.
7475 U.S. 312, 320-321 (1986).
8Wilson v. Seiter, 111 S.Ct. 2321, 2322 (1991).
9See n.3, supra, at 10-12.
IOWilson "clearly and substantially narrowed the
reach of the Eighth Amendment," and cynically
departs from long standing federal practice without sufficient explanation. "First, the opinion
refuses to distinguish between damages and
;,
injunctive actions. If conditions are bad enough !~:
result in a deprivation of a basic necessity of life,
why should a federal court's ability to issue an
injunction turn on proof of a culpable state of
mind on the part of one or more defendants? What
about bad conditions produced by the combined
actions [or inactions] of a number of officials and
the legislature, ignoring a deteriorating prison over
time?" See n.3, supra, at 10-17.
11112 S.Ct. 995 (1992).
IWudson extended Whitley standards to all Eighth
Amendment excessive use-of-force claims.
IWelling v. McKinney, No. 91-1958 (Opinion of
White,J.), slip op. at 9 (Supreme Court, 1993).
Significantly, the Court decided that Estelle's deliberate indifference standard applied to this case.
Justice Scalia, who delivered the Wilson opinion,
along with Justice Thomas, dissented. They were
also the dissenting Justices in Hudson.
14The United States has declared that the international documents discussed here are not self-executing. This means that they do not create privately
enforceable rights, and therefore, legal claims cannot be based directly on them without further
implementing legislation. International human
rights and domestic civil rights and civil liberties
organizations have lobbied for the enactment of
implementing legislation covering the International
Covenant on Civil and Political Rights, and to bring
the United States into full compliance with other
international standards. The International Human
Rights Conformity Act, which would allow legal
claims based upon the International Covenant on
Civil and Political Rights, is currently making its
way through the congressional process.
15Article 5, Universal Declaration of Human Rights
adopted and proclaimed by General Assembly
Resolution 217A (III) of 10 December 1948. The
Universal Declaration of Human Rights is not a
treaty or agreement, and thus did not require the
"advice and consent" of the Senate nor ratification
by the United States. The United States is bound by
the Universal Declaration as a member of the
United Nations.
16"Basic Principles for the Treatment of
Prisoners," adopted and proclaimed by General
Assembly resolutions 45/111 of 14 December
1990. See also, the "Body of Principles for the
Protection of All Persons under Any Form of
Detention or Imprisonment," adopted by General
Assembly resolution 43/173 of 9 December 1988,
Principle 1. The fifth principle of the Basic
Principles provides: "Except for those limitations
that are demonstrably necessitated by the fact of
incarceration, all prisoners shall retain the human
rights and fundamental freedoms set out in the
Universal Declaration of Human Rights, and,
where the State concerned is a party, the
International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on
Social and Political Rights and the Optional

Protocol thereto, as well as such other rights as
are set out in other United Nations covenants."
17Article 7, International Covenant on Civil and
Political Rights. The Covenant was adopted and
opened for signature, ratification and accession by
General Assembly Resolution 2200 A(XXI) of 16
December 1966. The United States ratified the
Covenant in June 1992. This ratification was conditioned by the attachment of reservations, declarations and understandings that limit its domestic
effect to the existing requirements of United States
law. Obviously, this includes such limitations as the
subjective inquiry in conditions cases.
18International Human Rights Instruments,
HRI/Gen/l, 4 Septe~ber 1992, General Comment
20 (Article 7) (FortY-fourth session, 1992), no. 1.
19/d., no. 2.
\.
2°Id., no. 3. This is·the case even in a public emergency.
21Under the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, the term "cruel, inhuman or degrading treatment or punishment" is to be interpreted
to the maximum possible extent, to govern physical
and mental abuses. See note to Principle 6.
22See n. 17, supra, no. 13.
23Webster's New World Dictionary, 3rd College
Edition (1988), defines "tolerate" as "to not interfere with; permit."
24See n. 21, supra.
25See n. 17, supra, General Comment 21, (Article
10) (Forty-fourth session, 1992), no. 3.
26Id. General Comment 21, no. 3 further prOVides:
"Persons deprived of their liberty enjoy all the rights
set forth in the Covenant, subject to restrictions that
are unavoidable in a closed environment."
27See n. 17, supra, General Comment 21, no. 4.
28Adopted and opened for signature, ratification and
accession by General Assembly resolution 39/46 of
10 December 1984. The United States signed the
convention in 1988, and the Senate gave its advice
and consent in 1990 with reservations, declarations
and understanding. Ratification, I.e., deposit of the
treaty with the United Nations, is pending.
29Article 16 extends specific obligations regarding
"torture" in Articles 10, 11, 12 and 13, to cover
cruel, inhuman or degrading treatment or punishment: (1) education and information regarding the
prohibition against cruel, inhuman or degrading
treatment or punishment in training of law
enforcement involved in the custody or treatment
of persons subjected to imprisonment (Article 10);
(2) Review of rules, instructions, methods, and
practices and arrangements for the custody and
treatment of persons subject to imprisonment with
a view to prevent cruel, inhuman or degrading
treatment or punishment (Article 11); (3) prompt
and impartial investigation and examination of reasonable allegations of cruel, inhuman or degrading
treatment or punishment (Articles 12 and 13).
3OWebster's New World Dictionary, 3rd College
Edition (1988) defines "acquiescence" as "to
agree or consent qUietly without protest...."
31Several international human rights organizations
point out that United States domestic law deviates
from international law in several important, substantive areas: the execution of juvenile offenders
and pregnant women; standards of cruel, inhuman
or degrading treatment or punishment; retroactive
imposition of lighter criminal penalties; compensation for unlawful arrests and convictions resulting
from the miscarriage of justice; successive prosecution by federal and state authorities; and the segregation of juvenile from adult offenders and of the
convicted from the accused.
THE NATIONAL PRISON PROJECT JOURNAL

Funding For People, Not Prisons
t a press conference on September
9, the National Council on Crime
and Delinquency (NCCD) launched
a ten-year plan entitled Reducing Crime
in America: A Pragmatic Approach. This
blueprint for change calls for a fundamental shift from "failed and redundant" policies in corrections and enforcement
toward proven prevention programs. As
Dr. Barry Krisberg, NCCD President, says
in his introduction to the report, "The
crime policy debate in America has been
dominated b,y simplistic and naive proposals to 'get tough' and 'send messages to
lawbreakers'. All levels of government
have invested massively in construction
and operation of new prisons and jails, yet
there is scant evidence that the huge
increase in incarceration has stemmed the
tide of criminal violence and drug trafficking." By contrast, the NCCD blueprint
outlines a comprehensive, two-tiered
effort: immediate reforms of both criminal justice and drug policies, and longterm reforms targeting health care, economic opportunities, communities, families and youths at risk.
The immediate reforms arise from the
premise that the criminal justice system
can have only a marginal impact on crime

A

THE NATIONAL PRISON PROJEG JOURNAL

rates, and that current criminal justice
practices from arrest through sentencing
(especially those involving drug crimes)
discriminate against minorities, exacerbate the crime problem, and damage race
relations. The U.S. spends a world-record
$80 billion each year to operate its criminal justice system. The NCCD's proposals
target the $25 billion budget of corrections and enforcement to shift funds from
ineffective programs to those tackling the
underlying causes of crime. All public
spending for corrections operations
should be frozen at current levels. No
crime or sentencing legislation should be
implemented without a complete fiscal
impact statement on the likely effects of
proposed legislation on prisons, jails,
probation, parole, and public safety.
Mandatory prison sentences and life sentences without the possibility of parole
should be abolished. The availability of
earned good-time credits for inmates who
participate in meaningful work, education, and other self-improvement programs should be expanded for the purposes of reducing current prison and jail
sentences. Prison sentences should be
principally reserved for violent criminals,
repeat criminals whose new crimes
involve a substantial threat to public safety, and those whose crimes involve sub-

stantial violations of the public trust. The'
use of intermediate sanctions or alternatives to incarceration should be expanded.
Moneys saved by these measures could
be spent instead on family planning, prenatal care, child health services, drug treatment programs, education and job creation-measures that will have a long-term
impact on the quality of life for the disadvantaged who are predominantly both the
perpetrators and the victims of crime.
Attorney General Janet Reno and Drug
Policy Director Lee Brown joined senators
and representatives for a special symposium held on the evening of the report's
release. Those of us working for a more
enlightened and rational approach to
criminal justice can only hope that they
paid as much attention to the NCCD as
they do to the tough-on-crime demagogues and profiteers of the multi-billiondollar corrections industry.
As this provocative report argues so
persuasively, "Radical and enduring social
problems demand radical initiatives, that
in the words of Thomas Jefferson, require
a social revolution."
To obtain the report, contact the
National Council on Crime and
Delinquency, 685 Market Street, Suite
620, San Francisco, CA94105, (415)
896-5109.•

jenni Gainsborough is editorial assistant ojthe NPPjournal.
OCTOBER 1993

17

AIDS Education
Empowers Women
nmost correctional systems AIDS education for women prisoners, as for '
their male counterparts, is limited to a
pamphlet or video. Fortunately women's
and AIDS service organizations have managed to provide programs to educate and
empower women.

I

Arkansas-The Women's Project
The Women's Project started providing
AIDS education to women prisoners at the
Women's Unit in Pine Bluff as an outgrowth of discussions with battered
women in prison and work with prostitutes on the outside. Peer educators are
trained in AIDS education and certified as
pre/post-HIV-test counselors. Kerry Lobel,
organizer with the Women's Project, says
the program's main goal is to train women
prisoners to become a resource for each
other and their community. Peer educators provide AIDS presentations for over
300 women each year and also do individual counseling. The Women's Project also
publishes HIV, AIDSAndReproductive

Health: A Peer Trainer's Guide.
Lobel, describing the Project's impact,
says "We've seen an overall change in the
tone of the prisoners. When we first started there were a lot of misconceptions and
fear. Today we find less fear and more
support for women with HIV/AIDS." 1\vo
peer educators trained by the Project have
also become employed by AIDS service
organizations since their release.
•
Delaware-Delaware Gay and
Lesbian Health Advocates
The Delaware Council On Crime and
Justice and Delaware Gay and Lesbian
Health Advocates started training peer
educators at the Delaware Women's
Correctional Institution in 1989. Suzanne
Triano, HIV/AIDS Outreach Worker with
Delaware Lesbian and Gay Advocates, was
trained by the Council and while in prison
authored the booklet Before ... I was
18

OCTOBER 1993

Peer educator Suzanne Triano,
HIVI AIDS Outreach Worker with
Delaware Gay and Lesbian Health
Advocates

scared. Peer educators are paid to conduct a weekly one hour talk about HIVI
AIDS. Triano feels peer educators are
impacted on several levels. "I see a lot of
changes in self-esteem because women
are giving something back to others. I
also see women becoming more responsible and engaging in less risky behavior."
District of ColumbiaWhitman Walker Clinic
Whitman-Walker started providing AIDS
education at the District of Columbia Jail
after being contacted by two prisoners in
1990. Beverly Flemming, Outreach
Coordinator for the SHOWProject, provides AIDS education to women twice a
week. Flemming tries to make her educational sessions into a two month course:
women who attend regularly receive a
certificate. In addition to AIDS education,
Flemming also has support group meetings on Sundays for women with
HIV/AIDS. Flemming gives the follOWing
advice to educators, "Go in and share
your own sexual experiences to strike up
a rapport, and have respect for the
women. Remember these are human
beings who have made mistakes and
we've all done that. As women, we're
more alike than different."

Massachusetts-Social Justice
for Women
The Women and AIDS Project at Social
Justice For Women began in 1988 and
currently provides HIV/AIDS education
and services to MCI-Framingham and two
county correctio~ facilities. The program includes foljr levels of HIV/AIDS
education fromJl1e mandatory one-hour
orientation for incoming women to a peer
education program. Caroline Stevenson,
Program Director, reflects on the benefits
of the peer education program: "Becoming a peer educator gives women a way to
respond to the AIDS crisis. Peer Educators also get a real sense of purpose
from their work. They're taking constructive action in their lives to help others,
something many have never done before."
Besides education, the Project coordinates a continuum of care for women
with HIV/AIDS after their release. Case
managers provide services that include
teaching women how to monitor their
health, explaining drug therapies, developing an aftercare service plan and
accompanying women to appointments.
Although the need for outside HIY/AIDS
educators continues, Stevenson also
urges groups to focus more attention on
drug treatment programs for newlyreleased women.
New Mexico-Project Alerta
Project Alerta began training peer educators at the Bernalillo County Detention
Center in 1992. Sidney Buffington, Health
Educator with the Albuquerque Family
Health Center, designed the curriculum
based on Paulo Friedes' theories that all
education is political. Ten women are
selected for the six-week program,
according to length of stay, ethnicity and
subcultures to ensure diversity. After completing a two-day training women choose
an area of work and later design a class
project. Women are paid $5 a hour, which
is kept in a fund until they are released or
transferred.
In her AIDS education programs
Buffington feels, "The biggest challenge is
to shut up and listen for awhile. Let the
women set the tone and pace, because
they'll challenge themselves much more
than you will." •

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

J

ublications
Bibliography of Material Q,Jl
---'--- Women in Prison
..

_--L-_

on AIDS in prison that are
available from the National Prison
Prqject and other sources,
in~Kuding corrections policies on
AIDS, educational materials
medical and legal articles, dnd
recent AIDS studies. $5 prepaid
from NPP.

lists information on this subj~ct
available from the National J.l~son
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

Project JOURNAL, $30/yr.

$2Iyr. 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

those presently under court order
or those which have pending
,
litigation either involving the
entire state prison system or
mltjor 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.

_....i-_

QTY. COST

commonly-asked questions about
tuberculosis (TB) in a simple
question-and-answer format.
Discusses what tuberculosis is,
how it is contracted, its symptoms, treatment and how HIV
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25. 500 copies/$1 00.
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. Th~
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.

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

The National Prison

1990 AIDS in Prison
Bibliography lists resources

(order
from
ACLU)

QTY. COST

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

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

City, State, ZIP

------------------OCTOBER 1993

19

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

T

Helling v. McKinney-The National
Prison Project appeared as amicus curiae
in the Supreme Court of the United States
in this case which involves the issue of
whether the Constitution is violated when a
prisoner is exposed to levels of environmental tobacco smoke (ETS) that pose a
serious risk to his or her health. On June
18, in a 7-2 decision with implications for
other environmental health concerns, the
Supreme Court found that prisoners need
not prove a present health problem for
potential health risks to be actionable
under the Eighth Amendment. It is sufficient to show that the risk of harm from
exposure to ETS is "unreasonably high"
and that such exposure is a risk which
today's society will not tolerate.
Austin v. Lehman-This state-wide
prison conditions case involving 13 facilities in Pennsylvania was filed jointly with
the ACLU of Pennsylvania and other local
counsel in 1990. The case challenges
overcrowding, problems with medical care
and other conditions. During the past
quarter, the great bulk of the discovery has
been completed. The final pretrial order
is to be submitted on October 22, 1993

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

and the case will be placed on the triallist:~ as is now the case. The population confor November 25, 1993.
trols include prohibitions against housing
prisoners in areas not designed for housHamilton v. Morial challenges condi-;.<: ing, prohibit housing more than two pristions at the Orleans Parish Prison, the
oners in a cell, pl~e conditions on
municipal jail for the City of New Orleans.
double-ceiling, an,.d1impose space requireThe National Commission on Correctional
ments for new coJIstruction. The process
Health Care is auditing the medical profor ending the court supervision has three
gram and an excellent comprehensive
phases: first, the expert monitors will overmental health program has been develsee compliance and report to the court on
oped. Atentative agreement has been
their findings until they determine there
reached with the Sheriff on the conditions
has been substantial compliance with the
phase. The agreement provides for the
terms of the agreement; second, the
closing of Tent City, a new Central LockDepartment of Public Safety will report to
Up, a new kitChen, and various other physthe court on its compliance efforts; finally,
ical plant and fire safety improvements.
once the court finds continued substantial
compliance in all areas, the decree will be
Spear v. Waihee-OnJuly 15 an
vacated except for population controls
agreement was reached in the Hawaii
which will remain permanently in effect.
prison conditions case. The new agreement will replace the existing 1985 conU.S. v. MichiganIKnop v. Johnsonsent decree governing conditions at the
This is a state-wide Michigan prison condiOahu Community Correctional Center and
tions case. In U.S. v. Michigan, in a
the Women's Community Correctional
change of position, the Department of
Center. It is designed to accomplish three
Justice will oppose the defendants' appeal
main goals: it replaces old language and
from the court's order refusing to dismiss
procedures that are no longer relevant
most of the case. The court granted a
because of changed conditions; it simplimotion to compel inspection by the
fies the process by which court superviDepartment ofJustice, and it appears that
sion takes place and provides an express
the Department will now attempt to
mechanism for determining when such
enforce the consent decree. In Knop, on
monitoring is no longer necessary; and it
June 30, defendants filed their legal access
provides for permanent population caps at
plan. Plaintiffs filed their opposition on
the facilities which will be enforced by the
July 30, and a hearing is scheduled for
state courts, rather than the federal courts
September 1993.
<

Nonprofit Org.
U.S. Postage

PAID
Washington D.C.
Permit No. 5248

Printed on Recycled Paper

20

OOOBER 1993

THE NATIONAL PRISON PROJEO JOURNAL