A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 9, NO.1, WINTER 1993/94 • ISSN 0748-2655

,

Black Prisoners Organizefor Self-Empowerment
n 1990 the publication of a research
report by The Sentencing Project on
the incarceration of Black males provoked an unusual degree of public attention. Communities throughout the nation responded with shock and dismay to the news
that nearly one out of four young African-

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American males are under the control of
the criminal justice system. 1 Black communities were particularly shaken. They continue to search for meaningful ways to respond to what they view as yet another symbol of oppression and social control.
African Americans have always protested
their oppression in some form or other.
They have publicly struggled against enslavement and civil rights violations. However, the movement against the
maltreatment of Black prisoners and the use of imprisonment as a method of social
control and oppression has
received less publicity. Much
of the leadership in this area
has come from Black prisoners themselves.
Historically, the way in
which protests against prison
conditions have been carried
out has reflected the attitudes
and the social, economic, and
political climate of the Black
community of the time. Protest
strategies have been shaped by
both ideology and pragmatism, giving credence to the
observation made by the Black
intellectual, W.E.B. Du Bois:
... the attitude ofthe
imprisoned group may
take three main forms,
-afeeling ofrevolt
and revenge; an attempt to adjust all
thought and action to
the will ofthe greater
group; or, finally, a determined effort at self
realization and self
development despite
environing opinion. 2

"The non-traditional approach works to empower prisoners, the prison,
and the community to work toward•••change together."

All three of these attitudes-accommodation, rebellion, and self-realization (or
self-determination and empowerment)have been adopted by African American
prisoners responding to their overrepresentation in prison, the extraordinarily
harsh conditions of their confinement,
and racial segregation and discrimination
which have long characterized prisons
across the country. Here, we will offer
three examples of how these attitudes have
been reflected in Black prisoner protests.
The accommodationist attitude was clearly
represented during the period following
the Civil War until 1954, the year of Brown
v. Board ofEducation. Then, "rebellion"
characterized the period following that
momentous decision until the mid-1970s.
And finally, during the Reagan-Bush
administrations, the current attitudes of
Black self-determination and empowerment were developed.
Accommodation
The state of Black male imprisonment reported by The Sentencing Project is not new.
African Americans
have been overrepresented in
prisons
since

the beginning of American penitentiaries in
1790. 3 Immediately following the Civil War,
newly freed Blacks soon became victims of
the "Black Codes" designed to legally reenslave them as prisoners. So successful
were these discriminatory laws that barely
five years after emancipation, Blacks represented 33% of the American prison population and 95% of most prison populations in the South. In addition, Black prisoners were almost totally separated from
white prisoners4 and were confined under
the most inhuman and brutal conditionsconditions even worse than those suffered
under slavery. Arkansas provides a perfect
example of the result: the Black death rate
in that state's prisons reached 25% in the
1880s. 5
How did Black prisoners respond to
these horrible conditions at the time?
Unfortunately little is known, because early
historians, sociologists, and scholars of
the American penal system adopted a
"color-blind" approach. Only since 1970
have researchers focused serious attention
on race in prisons. 6 To date, none have
examined this issue in an historical context. Therefore, we are left to speculate
that, in the first half of the 20th century,
the responses of prisoners to the oppressive nature of Black imprisonment mirrored contemporary attitudes of large segments of the Black community. Following
Reconstruction, which was marked by
Black political and social activism, much
of Black protest shifted gradually to
accommodation due to Black disenfranchisement, the proliferation of segregation
laws, and other racist, oppressive, and violent actions. Subsequently, many Blacks
began to devalue political participation,
accept segregation, stress the ideals of
self-help and racial solidarity7, and curtail
confrontational and active forms of
protest.
Anoted prisoner of a more recent era,
Eldridge Cleaver, presents a graphic
description of th~ period:
Prior to 1954, we lived in an
atmosphere ofnovocain. Negroes
found it necessary, in order to
maintain whatever sanity they
could, to remain somewhat aloof
and detachedfrom 'the problem'.
We accepted indignities and the
mechanics ofthe apparatus of
oppreSSion without reacting, by
sitting-in or holding mass demonstrations. 8
The adoption of an accommodationist
stance was prompted by several other factors. First, the reigning prison philosophy
stressed the importance of keeping prisoners docile. Individual expression and resis2

WINTER 1993/94

tance were strongly discouraged. Secondly,
Blacks were particularly discouraged from
protesting their condition since they occupied a subordinate position to all others in
society, had no political or legal influence,
and were given no opportunity to complain
or press charges against whites of any
social position. But, most importantly,
Blacks constantly lived with the threat and
fear of lynching and other forms of white
violence. Any overt political activity challenging white authority could spark the
flames of racist attack. Manning Marable
notes that "no jail or state penitentiary
would be secure enough to keep the Black
man/woman from hislher certain fate."9
It is well established that prisoners
were often taken from jails and lynched
with the support and help of law enforcement officials.
Rebellion
Like other African Americans in the late
1950s, Black prisoners began to actively
protest segregation and discrimination and
later the "political" nature of their imprisonment. The Black Muslims initiated the
prison protest movement by challenging
discriminatory treatment of Muslims. They
soon expanded their fight to include the
constitutional rights of all prisoners. They
worked to increase Black prisoners'
awareness of their environment and their
self-identity. The Muslims have been credited with helping to destroy the barriers to
political consciousness which impeded
prisoners in previous attempts to struggle
against their oppression.10
Many of the new prisoners entering the
system during this era had been involved
in major social movements-fighting for
civil rights and welfare rights, protesting
the Vietnam War, and defining themselves
as Black nationalists. Their experiences in
those struggles equipped them with political sensitivities that were new among
imprisoned populations. Armed with these
perspectives, prisoners began legal challenges, strikes, and rebellions; they wrote
books and articles to focus the free world's
attention on the problem of prisons and
Black oppression.
In the early 1970s, Black prisoners
advanced the proposition that they should
be thought of as "political prisoners,"II
arguing that since their condition derived
from the political and economic inequality
of Blacks in America, they were victims of
that oppressive order. Chrisman argued
that even when the Black prisoner's crime
is not political, the state's action against
him is political. That is, Black offenders
are not tried and judged by the Black community itself, but by whites who "are

served by the systematic subjugation of all
black people."12
The revolutionary consciousness that
grew out of this new political awareness
took hold and erupted in September 1971
at Attica Prison in New York State, where
32 prisoners and 11 state employees died
during the bloodiest American prison
revolt.
Following the revolt, The Attica
Commission Report acknowledged the
influence on Black prisoners of the movement for equality,jn the Black community:
[T]he increa.srng militancy ofthe
black liberation movement had
touched
he came to Attica
bitter and angry as the result of
his experiences in the ghetto
streets and in the morass ofthe
criminaljustice system. 13
Attica and the FBI attack on Black radical groups such as the Black Panthers, sufficiently suppressed the Black protest
movement that developed in the Sixties.
Panthers such as Eddie Ellis were targeted
for surveillance by COINTELPRO (the FBI
surveillance program) and imprisoned.
Following the uprising, Ellis and many

Mm...

(cont'd on page 20)

Editor: Jan Elvin
Editorial Asst.: Jenni Gainsborough
Regular Contributors: John Boston,
Russ Immarigeon
Alvin J. Bronstein, Executive Director
The National Prison Project of the
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offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and

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THE NATIONAL PRISON PROJECT JOURNAL

Status Report: State Prisons and
the Courts -January 1, 1994
STATUS REPORT BY JURISDICTION
1. Alabama:* The entire state prison system was under court order dealing with total
conditions and overcrowding. Pugh v. Locke,
406 F. Supp. 318 (M.D. Ala. 1976), affd in
substance sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977), rev'd in part
and remanded sub nom. Alabama v. Pugh,
438 U.S. 781 (1978). Areceiver was appointed. 466 F. Supp. 628 (M.D. Ala. 1979). On
January 13, 1983, the district court entered
an order establishing a four-person committee to monitor compliance with previous
orders. In December 1984, the district court
relinquished active supervision after the parties agreed that substantial compliance had
been achieved. The court dismissed the case
in December 1988.
2. Alaska:* The entire state prison system
is under a consent decree and a court order
entered in 1990 dealing with overcrowding
and total conditions of confinement. Cleary v.
Smith, No. 3AN-81-5274 (Super. Ct., 3rdJud.
Dist.) (complaint filed Mar. 3, 1986). The
parties agreed to population caps at each
facility and a mechanism to reduce the population when a cap is exceeded. The parties
contemplated that the mechanism would
remain in effect until the state legislature
approved an emergency-overcrowding reduction statute. By October 1992, the legislature
had failed to pass such legislation, the DOC
had failed to reduce the population at the six
largest prisons, and the state filed for relief
from the order. In an order entered on
October 25, 1993, the court lifted the population cap at the Spring Creek maximum-security facility. A"ffiotion for reconsideration was
filed on November 4, 1993 and granted by the
court. Abriefing schedule has been entered.
The court ordered trial on compliance issues
including program parity for the state's
women prisoners.
3. Arizona:* The state penitentiary is
operating under a series of court orders and
consent decrees dealing with overcrowding,
classification, and other conditions. Orders,
August 1977-1979, Harris v. Cardwell, CIV75-185 PHXCAM (D. Ariz.). Aspecial administrative-segregation unit at the Arizona State
Prison in Florence was operating under a
December 12, 1985 consent decree. Amonitor was appointed. Black v. Ricketts, C.A. No.
84-111 PHXCAM (D. Ariz.). The unit was later
found to be in full compliance with the conTHE NATIONAL PRISON PROJECT JOURNAL

sent decree, and Black was dismissed in F~b­
ruary 1988.
Astatewide class action, filed on behalf of
Arizona prisoners on January 12, 1990,iJhallenges legal access, health care, and discrimination against handicapped prisoners. Casey
v. Lewis, CIV-90-0054 PHXCAM (D. Ariz.).
Partial summary judgment for plaintiffs was
entered in August 1991 enjoining discrimination against HIV-positive prisoners in job
assignments. The state has appealed. Trial on
the remaining issues occurred in 1991-92.
On November 13, 1992, the district court
entered a favorable decision on the legalaccess issues; on March 19, 1993, the court
declared mental-health care unconstitutional;
and on April 3, 1993, the court found that the
defendants had denied mobility-impaired
prisoners access to bathroom facilities and
other areas, in violation of the Constitution.
On September 23, 1993 a Ninth Circuit panel
vacated the district court's injunction on contact attorney-client visitation and the denial of
food-service jobs to HIV-infected prisoners.
4 F.3d 1516 (9th Cir. 1993). Plaintiffs await a
ruling on their petition for a rehearing en
banc from the Ninth Circuit.
4. Arkansas:* The entire state prison system was under court order dealing with total
conditions. Finney v. Arkansas Board of
Correction, 505 F.2d 194 (8th Cir. 1974). A
special master was appointed. Finney v.
Mabry, 458 F. Supp. 720 (E.D. Ark. 1978).
Compliance was assessed in 1982. 534 F.
Supp. 1026 (E.D. Ark. 1982); 546 F. Supp.
626 (B.D. Ark. 1982). After a finding of full
compliance, the federal court relinqUished
jurisdiction in August 1982. 546 F. Supp. 628
(E.D. Ark. 1982).
5. California:* The administrative-segregation units at San Quentin, Folsom, Soledad,
and Deuel (DVI) are under court order due
to overcrowding and conditions. Apreliminary injunction was entered. Toussaint v.
Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983),
affd in part sub nom. Toussaint v. Yockey,
722 F.2d 1490 (9th Cir. 1984). The district
court thereafter entered a permanent order
enjoining double-celling and other conditions
at the San Quentin and Folsom units. Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D.
Cal. 1984). The court of appeals reversed on
the issues of placement and retention in administrative segregation. 801 F.2d 1080 (9th
Cir. 1986), cert. denied, 481 U.S. 1069
(1987). Amonitor was appointed to oversee

compliance. Toussaint v. Rowland, 711 F.
Supp. 536 (N.D. Cal. 1989). The monitorship
was dissolved in 1991, but the plaintiffs continue to evaluate compliance. On June 29,
1992, acting on the defendants' motion under
Rule 68, the district court entered an order
on conditions and double-ceiling with respect
to Soledad and DVI.
The California Men's Colony at San Luis
Obispo is under a court order establishing
population limits. Dohner v. McCarthy, 635
F. Supp. 408 (C.D. Cal. 1985). However,
compliance m6nitoring has ceased.
The Californilt Institution for Men at Chino
is operating under a settlement agreement
providing for improved sanitation, classification, legal access, and other conditions. Compliance monitoring has ceased. Boyden v.
Rowland, CV-86-1989-HLH.
The California Medical Facility at Vacaville is
under a 1990 consent decree concerning the
delivery of health-care and psychiatric services, including housing and programming for
HIV infected inmates. Compliance is being
monitored. Gates v. Deukmejian, No. S-871636-LKK-JFM (E.D. Cal.). In 1992, plaintiffs
filed a contempt motion concerning the
staffing requirements of the order. Amagistrate judge filed a report on this issue and the
district judge ordered limited further relief.
(Order of Apr. 3, 1992). In 1993, a further
contempt motion was filed; a ruling is awaited.
Two lawsuits concern the delivery of medical and mental-health services to prisoners
at the California Women's Institution at
Frontera. Whisman v. McCarthy, No. OCV33860 (Super. Ct., San Bernadino County)
and Doe v. CDC, A-Civ.-89-598-GLT (C.D.
Cal.). In Whisman, a settlement was reached
in May 1992, in which the parties agreed to a
state DHS inspection and to correct problems
with inadequate treatment and care identified
by this inspection. Doe deals with the treatment of HIV-positive prisoners at CWI.
Discovery continues. Substantial changes
have occurred in the DOC policy that have
changed the posture of the case.
In 1990, a class-action suit against the
Department of Corrections was filed challenging conditions at the state's new "supermax"
facility at Pelican Bay. Madrid v. Gomez, C90-3094 (N.D. CaL). The complaint alleged
the use of excessive force and brutality by
guards, deliberately cruel and dehumanizing
conditions of confinement, deliberate indifference to prisoners' serious medical needs,
and unnecessary risk of inmate-upon-inmate
violence. During 1992, a class was certified
and discovery was ongoing. The case went to
trial on September 17,1993, and ended
December 15. Adecision is awaited.
Acase was filed against the state challenging the adequacy of mental-health care in all
California prisons (except Vacaville and San
WINTER 1993/94

3

Quentin). Coleman v. Wilson, CV-90-520LKK-JFM. The trial concluded in June 1993; a
decision is awaited.
6. Colorado:* The state maximum-security
penitentiary at Canon City is under court
order on total conditions and overcrowding.
Ramos v. Lamm, 485 F. Supp. 122 (D. Colo.
1979), affd in part and remanded, 639
F.2d 559 (lOth Cir. 1980), cert. denied, 450
U.S. 1041 (l981) , on remand, 520 F. Supp.
1059 (D. Colo. 1981). During the compliance
stage, the parties reached a series of agreements later approved by the court concerning
general conditions, as well as specific areas
such as legal access, double-bunking and
treatment of HlV-infected prisoners. On this
last issue, see Diaz v. Romer, 961 F.2d 1508
(lOth Cir. 1992).
Alawsuit filed on February 27, 1990, challenges conditions and delivery of health-care
services at three other major state facilities
(Buena Vista, Fremont, and the women's
prison). Nolasco v. Romer, No. 90-C-340 (D.
Colo.). In 1992, the parties reached a comprehensive settlement on all of the issues. The
district court approved this agreement in June
1992.801 F. Supp. 405 (D. Colo. 1992).
During 1993, the state filed a series of compliance reports, in both Ramos and Nolasco,
to which the plaintiffs will respond.
Lawsuits concerning inadequate classification resulting in increased assaults and violence at the Lymon Correctional Facility were
consolidated in August 1993. Wilson v.
Romer, No. 92-C-1470 and Hall v. Romer,
No. 92-M-1932. Discovery is ongoing; an
amended complaint will be filed.
7. Connecticut:* The Hartford Correctional Center is under court order dealing
with overcrowding and some conditions.
Lareau v. Manson, 507 F. Supp. 1177 (D.
Conn. 1980), affd in part, modified, and
remanded, 651 F.2d 96 (2d Cir. 1981).
Other facilities under consent decree are
Bridgeport Correctional Center, Mawhinney
v. Manson, No. B78-251 (D. Conn. 1982)
and New Haven G.orrectional Center, Andrews
v. Manson, No. N81-20 (D. Conn. 1982).
Although the orders entered in both of these
cases remain in effect, they are not being
monitored actively.
Niantic Women's Prison is under a court
order on a full range of women's prison
issues. West v. Manson, No. H-83-366 (D.
Conn.) (entered Oct. 3, 1984). Compliance is
being monitored in this case.
The treatment of HIV-positive Connecticut
prisoners was the subject of a 1988 lawsuit.
Doe v. Meachum, No. 88-562 (D. Conn.). In
1991, a negotiated agreement was reached
and a consent decree was entered.
Compliance is being monitored.
Litigation challenging violence and overcrowding is pending at the state prison at
4

WINTER 1993/94

Somers. Bartkus v. Manson, No. H-80-506
(D. Conn.). During 1993, the parties were
engaged in settlement discussions concerning
population limits and out-of-cell time. In
October, the plaintiffs were granted a temporary restraining order enjoining further double-ceiling at the prison.
.//
8. DeIaware:* All major Delaware prisons
are under a consent decree filed in state court
on issues of overcrowding, physical plant, med~
ical care, and access to the courts. DickerSd1!
v. Castle, C.A. No. 10256 (Del. Ch. Nov. 22,
1988). On December 7,1992, a supplementary
agreement on overcrowding and tuberculosis
control was approved by the court. Compliance
monitoring commenced in 1993.
9. Florida: The entire state prison system
was under court order dealing with overcrowding. Costello v. Wainwright, 397 F.
Supp. 20 (M.D. Fla. 1975), affd, 525 F.2d
1239 (5th Cir. 1976) and 553 F.2d 506 (5th
Cir. 1977). In 1980, the court entered a consent decree providing measures for population control. 489 F. Supp. 1100 (M.D. Fla.
1980). Aspecial master was appointed.
Additional consent decrees were entered covering environmental health and safety. In
1992, the parties agreed that the standards
and terms of the population order would be
embodied in a state statute and that the
Correctional Medical Authority (CMA), an
independent state-funded agency, would monitor and enforce compliance.
Aconsent decree was entered on December
17, 1987 in Costello concerning health-care
services. Later, in 1991, the parties negotiated to end court supervision of the health-care
order by turning over monitoring and enforcement to the CMA.
In 1993, the state statute came into effect
authorizing CMA to monitor and enforce population, habitability, and health-care provisions, and providing a unique model whereby
modification of these provisions can be made
only through a medical waiver. However,
prisoners have an automatic right to sue the
Department of Corrections if an adverse ruling is made.
On the basis of the settlement and the
statute, the district court issued a final judgment "closing" the statewide Florida crowding and medical-care litigation (the Costello
case noted above), thereby vacating the previously imposed injunction and relieving class
counsel, the special master, and the monitor
of any further responsibilities. Celestineo v.
Singletary, 147 F.R.D. 258 (M.D. Fla. 1993).
Inadequate security provisions leading to
predictable inmate violence and sexual
assaults at Glades Correctional Institution
were challenged in a lawsuit seeking injunction and monetary relief. The district court
entered an injunction benefiting the class,
and awarded damages to some of the named

plaintiffs. The decision was substantially
affirmed on appeal. LaMarca v. Turner, 995
F.2d 1526 (lith Cir. 1993).
10. Georgia: The state penitentiary at
Reidsville is under court order on total conditions and overcrowding. Aspecial master
was appointed in 1979, and dismissed in
1983. Guthrie v. Evans, C.A. No. 3068 (S.D.
Ga.). The case was closed in 1983, but the
injunction remains in effect. The order
requires single-ceIling, improvements in the
medical- and mental-health-care delivery system, and improve'\flents in environmental
health, among otqJer things. Compliance is
being monitore.d.
Anumber of other state facilities have
come under challenge. In 1993, a classaction lawsuit begun in 1984 on behalf of the
state's women prisoners alleging inadequate
living conditions and physical and psychological mistreatment was updated to include allegations of sexual abuse. Cason v. Seckinger,
84-313-1-MAC. These allegations are now the
subject of a federal investigation by the U.S.
Attorney General.
11. Hawaii:* The men's prison (O.C.C.C.)
in Honolulu and the women's prison on Oahu
were under court order as a result of a 1985
consent decree entered in a totality of conditions suit. Spear v. Ariyoshi (now Spear v.
Waihee) , Civ. No. 84-1l04 (D. Haw.).
Monitors were appointed and continued to
assess compliance with the court decree.
Following negotiations with a view toward
modifying the decree to reflect current conditions more accurately, a new agreement was
finalized in July 1993. The new agreement
addresses changed conditions, simplifies the
process of court supervision, and provides a
mechanism for determining when such monitoring is no longer necessary. The agreement
also provides for permanent population caps
that will be enforced by the state courts. An
order putting the new agreement into effect
was signed on November 19, 1993.
12. Idaho:* The men's Idaho Correctional
State Institution is under a court order concerning conditions. Balla v. Idaho State
Board ofCorrections, 595 F. Supp. 1558 (D.
Idaho 1984). In 1987, incident to Balla, the
district court held that the prison was unconstitutionally overcrowded and ordered population reductions. 656 F. Supp. 1108 (D.
Idaho 1987). The court of appeals upheld the
district court decision rejecting defendants'
attempt to obtain more time to reduce the
population, among other things. 869 F.2d 461
(9th Cir. 1989).
The women's prison is operating under an
interim agreement signed in July 1991 concerning conditions, including overcrowding
and medical care, which will remain in effect
until the DOC opens a new facility. Wilke v.
Vernon (formerly Witke v. Crowl), Civ. No.
THE NATIONAL PRISON PROJECT JOURNAL

82-3078 (D. Idaho). Compliance is being
monitored. Once the new facility is operational (currently scheduled for February
1994), the previous agreements reached in
this case concerning programming, delivery
of medical care, and legal access will continue to apply.
13. Illinois:* The state penitentiary at
Menard is under court order on total conditions and overcrowding. Aspecial master,
appointed in 1980, was discharged after four
years. There has been substantial compliance
with the decree; however, the injunction
remains in force. Lightfoot v. Walker, 486 F.
Supp. 504 (S.D. Ill. 1980).
DWight Correctional Center is under a May
1990 consent decree that requires programs
for women prisoners and the construction of
a 200-bed minimum-security facility for
women. Moorhead v. Lane, No. 86-c-2020
(C.D. Ill.).
The Stateville facility is under a December
1990 consent decree, entered by the district
court, which provides for improved protection from assault. Calvin R. v. Peters, No.
82C1955 (N.D. 111.). Acourt monitor has
been appointed and a classification evaluation by NCCD has been completed. Compliance monitoring continues. The district
court ordered that protective-custody prisoners at the Stateville facility be provided with
improved programming, conditions, and legal
assistance. Williams v. Lane, 646 F. Supp.
1379 (N.D. 111. 1986). The court of appeals
affirmed this decision. 851 F.2d 867 (7th Cir.
1988), cert. denied, 488 U.S. 1047 (1989).
14. Indiana:* The state prison at Pendleton
was found unconstitutional on total conditions
and overcrowding. French v. Owens, 538 F.
Supp. 910 (S.D. Ind. 1982), affd in pertinent part, 777 F.2d 1250 (7th Cir. 1985),
cert. denied, 479 u.s. 817 (1986). The state
penitentiary at Michigan City is under a court
order on overcrowding and other conditions.
Hendrix v. Faulkner, 525 F. Supp. 435 (N.D.
Ind. 1981), affd in part, vacated and remanded in Mrt sub nom. Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983), cert. denied,468U.S.1217 (1984).
The state prison at Westville is under a
consent decree on overcrowding, conditions,
and delivery of mental-health services.
Anderson v. Orr, C.A. No. S83-0481 (N.D.
Ind.) (case filed in 1983). Acomprehensive
settlement was reached on March 31, 1989.
During 1992 and 1993, the parties had extensive discussions about compliance.
In June 1990, a case was filed challenging
conditions and delivery of health-care services to prisoners confined at Indiana's
reception and classification facility. Lecclier
v. Bayh, IP90-1460-C (S.D. Ind.). After conducting discovery, the parties reached a comprehensive settlement. Aconsent order was
THE NATIONAL PRISON PROJECT JOURNAL

entered on July 5, 1991. In accordance with
the terms of the order, and after two years of
compliance, the case was closed.
On May 4, 1992, prisoners at the Maximum
Security Complex at Westville (the state's socalled "supermax") brought an action in
state court challenging placement and condt:
tions. Taifa v. Bayh, No. 49-DO-7-9205-CP>;
489 (Super. Ct., Marion County). The state>
had the case removed to federal court. Taifa
v. Bayh, No. S-92-429M (N.D. Ind.). Th(dederal court remanded the state law claims: to
the state court. In 1993, the parties signed off
on an Agreed Entry, which resolves the claims
in both state and federal courts. The document restricts the criteria for placement, provides for improved conditions and increased
out-of-cell time, and provides for a method to
earn one's way out of the facility. The Agreed
Entry has been submitted to the federal judge
for approval.
15. Iowa: The Iowa State Penitentiary at
Fort Madison is under court order on overcrowding and a variety of conditions; however, this decree is not being monitored actively
for compliance. Watson v. Ray, 90 F.R.D.
143 (S.D. Iowa 1981).
Fort Madison is also under a series of consent decrees involving the delivery of medical-care services, McBride v. Ray, No. 73242-2 (S.D. Iowa), segregation, Gavin v.
Ray, No. 78-62-2 (S.D. Iowa), and protective-custody practices, Parrott v. Ray. These
cases are being monitored actively.
Women prisoners confined to the Iowa Correctional Institution for Women (ICIW) at
Mitchellville filed a class action concerning disparate treatment as against male prisoners in
terms of programs and work opportunities.
Pargo v. Elliot, No. 4-92-80781 (S.D. Iowa).
Discovery is ongoing and a trial before the magistrate judge is scheduled for March 22, 1994.
16. Kansas: Aconsent decree on total
conditions was entered in 1980 at the state
penitentiary at Lansing. Arney v. Bennett, No.
77-3045 (D. Kan.). The case was reopened
and expanded in 1988, and a more comprehensive order was entered in April 1989. That
order requires the state's oldest facilities to
meet and maintain standards of the American
Correctional Association (ACA) and the
National Commission on Correctional Health
Care (NCCHC); the capacities of all other
existing or new facilities must meet ACA standards. Apanel of experts is monitoring mental-health treatment. In 1991, the defendants
moved for modification of the consent decree
to permit double-ceIling and to increase
operating capacity due to construction delays.
The court denied modification in two prisons
that were the focus of this case and granted it
in other institutions, but only where ACA standards and other limitations are met. Arney v.
Finney, 766 F. Supp. 934 (D. Kan. 1991),

affd in part, appeal dismissed in part, 967
F.2d 418 (10th Cir. 1992). (Subsequently the
caption on the case was changed to Porter v.
Finney.) In 1993, the mental-health monitoring team found that compliance had been
achieved with that plan. Also during 1993, the
court approved plans with respect to protective-custody and other segregation issues.
Compliance monitoring continues on all
other issues.
17. Kentucky:* The Kentucky State
Penitentiary (KSP) at Eddyville and the
Kentucky StatelJ{eformatory (KSR) at
LaGrange wer~/under court order by virtue of
a consent de,ci:ee on overcrowding and some
conditions, including guard brutality.
Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky.
1981). The court of appeals later vacated
some requirements of the order related to the
brutality issue. 740 F.2d 432 (6th Cir. 1984).
The district court found the defendants in
substantial compliance with the consent
decree, with the exception of new construction requirements. As a result, the case was
placed on the inactive docket of the court, a
decision that was affirmed by the court of
appeals. However, that court held that the
district court could reinstate the case if the
plaintiffs could prove "a major violation" of
the decree. 931 F.2d 421 (6th Cir. 1991). On
February 24, 1992, the district court, with
respect to KSP, relinqUished jurisdiction and
dismissed the case. With respect to KSR, the
court retained jurisdiction until all construction is completed and as long as major violations of the decree do not occur.
The women's prison, KCIW at Pee Wee
Valley, was under court order on a variety of
conditions, including crowding, physical
plant, sanitation, access to the courts, programming, classification, and work.
Canterino v. Wilson, 546 F. Supp. 174 (W.D.
Ky. 1982), and 564 F. Supp. 711 (W.D. Ky.
1983). The district court's order concerning
work and study release was vacated by the
court of appeals. 869 F.2d 948 (6th Cir.
1989). The district court relinquished jurisdiction on July 13, 1992.
18. Louisiana: The Louisiana State Prison
(Angola) is under court order dealing with
overcrowding and a variety of conditions.
Williams v. Edwards, 547 F.2d 1206 (5th
Cir. 1977). In 1981, the court of appeals
consolidated all state-prison-overcrowding
and local-jail-overcrowding cases in
Louisiana before one district court judge.
This decision included Williams. See
Hamilton v. Morial, 644 F.2d 351 (5th Cir.
1981). On December 7, 1983, the district
judge who was appointed under Hamilton
approved a consent decree dealing with
crowding and population problems at Angola.
In 1989, the judge declared a state of emergency, appointed a court expert, and requestWINTER 1993/94

5

1989), affd in part and rev'd in part, 934
lenged, including housing prisoners in dayed th.attheU.S.DePartment ofJustice investiF.2d 703 (6th Cir. 1991), Subsequently, a
room areas. Nolan v. Fair, No. 84-1360
appointed a lawyer
special administrator was appointed, and a
(Super. Ct., Norfolk County-).
f?~.th~cl~s?fstate··prisoners; .the··lawyer has
Acase
filed
in
state
court
challenged
uncompliance plan was ordered submitted.
b~en~~~~ly"involvedin monitoring complilawful conditions, use of force, and classificaFour men's prisons (Marquette, Michigan
lffi;f~i~~?utstanding orders in the case. The
tion practices in DOC segregation units
Reformatory, RiverSide, and a portion of
81$eis.nowentitled Williams v. McKeithen.
statewide. After months of trial before one
See939F.2d 1100,1102 (5th Cir. 1991).
Jackson) are under a consent decree on
justice, the Supreme Judicial Court ruled in
19. Maine:* The State Prison at Thomaston
overcrowding and other conditions. This case
the prisoners' favor. The state submitted draft
was challenged on overcrowding and a varietywas brought by the U.S. Department of Justice
regulations to which the plaintiffs commented
of conditions in 1978. The trial court granted
under the Civil Rights of Institutionalized
relief on the issue of restraint cells, and othand objected. Revised regulations were ap~.
Persons Act (CRlPA). United States v. Micherwise dismissed the complaint. Lovell v.
proved by the court. Hoffer v. Fair, No. 8591
igan, 680 F. Supp. 928 (W.D. Mich. 1987).
Brennan, 566 F. Supp. 672 (D. Me. 1983),
(Sup. Jud. Ct., , Suffolk County-).'
In 1992, the DOJ{iled a motion to vacate poraffd, 728 F.2d 560 (lst Cir. 1984).
Acase filed against MCI at Concord suctions of the decre~ under a new policy anill October 1990, a lawsuit was filed against
cessfully challenged numerous unlawful connounced by Attothey General William Barr. On
the state prison at Thomaston concerning conditions, including the use of dayrooms for
December 1, 1992, the court dismissed some
ditions, treatment, and placement in the prohousing prisoners. The practices have ceased
relatively minor portions of the decree. In
tective-custody and administrative-segregation
and the state has settled for money damages.
January 1993, the defendants filed a notice of
units. Brown v. McKernan, No. 90-246-p (D.
jacobs v. Fair, No. 86-81758 (Super. Ct.,
appeal from the order refusing to dismiss most
Me). In March 1991, the parties reached an
Suffolk County-).
of the case. In the last half of the year, the DOJ
agreement to end double-celling in those units
In 1991, a consent decree was entered
actively sought discovery from the defendants
and to enhance programming opportunities.
imprOVing the delivery of prenatal services
on a variety- of issues. The court granted a
Compliance is being monitored.
provided to pregnant prisoners at MCI
motion to compel inspection by the DOJ; it
20. Maryland:* The Maryland House of
Framingham. McDonald v. Fair, No. 85appears that the DOJ will now attempt to
Corrections at Jessup and the Baltimore
80352 (Super. Ct., Suffolk County-).
enforce the consent decree. In a change of
Penitentiary were declared unconstitutionally
Compliance is being monitored.
position, in its brief in the Sixth Circuit the DOJ
overcrowded in, respectively,Johnson v.
22. Michigan:* The women's prison is
defended the order rejecting the stipulation.
Levine, 450 F. Supp. 648 (D. Md. 1978), and
under a court order concerning the total conCourt orders in another case, Knop v.
Nelson v. Collins. 455 F. Supp. 727 (D. Md.
ditions of confinement, including programjohnson, cover issues not included in the
1978), affd in part sub nom. johnson v.
Levine, 588 F.2d 1378 (4th Cir. 1978), on
remand, Nos. H-77-113 and B-77-116, (D.
Md. Jan. 5, 1981), rev'd and remanded sub
nom. Nelson v. Collins, 659 F.2d 420 (4th
Cir. 1981) (en banc). Asettlement agreement
and consent decree were subsequently
entered in both cases.
In a case against the Maryland Correctional
Institution at Hagerstown, the district court
approved a settlement agreement in 1979 that
required that double-celling be eliminated
and certain conditions improved. Washington
v. Keller, 479 F. Supp. 569 (D. Md. 1979).
The Washington and johnson cases were
later consolidated and further agreements
were entered in October 1987 and February
1988. Compliance is being monitored.
Subsequent contempt motions filed in these
cases have been resolved by negotiation. In
April 1993, the judge granted, in substantial
.1:
,2'
part, plaintiffs' Motion to Compel, reqUiring
~
the defendants to produce documents regardo
U
@.I...,....._ _......
ing the prison's policies and practices on TB
detection, control, and treatment.
21. Massachusetts: The maximum-securimingo Gloverv.johnson, 478 F. Supp. 1075
consent decree in United States v. Michigan.
ty- unit at the state prison in Walpole was chal(E.D. Mich. 1979); further orders entered,
The Knop court entered orders favorable to
lenged on total conditions. Blake v. Hall, C.A.
510 F. Supp. 1019 (E.D. Mich. 1981). Later,
prisoners on various issues, including the
78-3051-T (D. Mass.). The district court
the Department of Corrections was found in
provision of legal assistance. Knop v. johndecided in the prison officials' favor. On
contempt. 659 F. Supp. 621 (E.D. Mich.
son, 667 F. Supp. 467 (W.D. Mich. 1987)
appeal, this decision was affirmed in part and
1987), vacated and remanded, 855 F.2d 277
(merits); 685 F. Supp. 636 (W.D. Mich.
reversed in part and remanded, 668 F.2d 52
(6th Cir. 1988). On remand, the state was
1988) (remedy).
(lstCir.1981).
required to appoint a special administrator to
The Central Complex and most of the North
Numerous conditions, sanitation, and space
design and implement a remedy for violations
Complex at the Jackson State Prison are operissues at MCI at Walpole are being chalof the order. 721 F. Supp. 808 (E.D. Mich.
ating under a consent decree. Hadix v. johngll.te'iItlJ~~l,thejlldge

6

WINTER 1993/94

THE NATIONAL PRISON PROJECT JOURNAL

son, No. 80-73581 (E.D. Mich.) (order entered May 13, 1981). Among other issues, the
decree requires improved health-care delivery, sanitation, out-of-cell activity, and staff
supervision. Another order in Hadix requires
the defendants to subdivide the enormous
Jackson Prison into more workable units.
Compliance is being monitored. Acourt
order was made requiring improved legal
assistance to prisoners. Hadix v. Johnson,
694 F. Supp. 259 (E.D. Mich. 1988), affd,
871 F.2d 1087 (6th Cir. 1989). In March
1993, the court held hearings on medicalenforcement and mental-health-enforcement
provisions and issued a number of enforcement orders. The defendants filed notices of
appeal from the enforcement orders, and in
August 1993 the plaintiffs filed a motion to
dismiss the appeals.
The state appealed from various specific
orders entered in both the Knop and Hadix
cases. In 1992, the Sixth Circuit, in a consolidated decision, affirmed on the issues of liability in not providing adequate legal assistance, the provision of winter clothing, and
other matters. The court of appeals reversed
on racial harassment and the denial of access
to toilets. Knop v. Johnson, 977 F.2d 996
(6th Cir. 1992), cert. denied sub nom. Knop
v. McGinnis, 113 S. Ct. 1415 (1993) (denying certiorari on the issue of racial slurs). In
March 1993, the trial court scheduled proceedings on the development of the legalaccess remedial order.
23. Minnesota: The state has kept overcrowding in abeyance through use of sentencing guidelines that take into account the number of available prison beds. Also, individual
facilities and the Department of Corrections
have been responsive to complaints raised by
advocates for prisoners.
24. Mississippi: The entire state prison
system is under court order dealing with
overcrowding and total conditions. Gates v.
Collier, 501 F.2d 1291 (5th Cir. 1974).
Compliance is not being monitored.
25. MissOJlri:* The State Penitentiary at
Jefferson City is under court order on overcrowding, medical care, and other conditions. Burks v. Walsh, 461 F. Supp. 454
(W.D. Mo. 1978), affd sub nom. Burks v.
Teasdale, 603 F.2d 59 (8th Cir. 1979). On
remand, the state was held liable for failing to
provide adequate medical care. Burks v.
Teasdale, 492 F. Supp. 650 (W.D. Mo. 1980).
In 1982, a separate order was entered on the
medical-care issues.
Afurther complaint has been filed concerning conditions at the state penitentiary.
This complaint includes sanitation, fire safety,
and violence issues. Wilson v. Moore, No. 874516-CV-C-5 (W.D. Mo.). In 1992, a class
was certified; the plaintiffs have begun discovery efforts.
THE NATIONAL PRISON PROJECT JOURNAL

26. Montana:* During 1993, an investigation was conducted in order to commence a
lawsuit concerning conditions at the Montana
State Penitentiary (MSP) located at Deer
Lodge. Aprior state lawsuit was withdrawn.
Health-care services, among other issues, are
the subject of this litigation. Lankford v.
Racicot, CV 92-13-H-LBE (Fifth Amended
Complaint filed Dec. 29, 1993). The
.~.'
Department of Justice is also contemplating a
CRIPA lawsuit.
The women's prison in Warm Springs.has
severe problems with respect to environmental health and sanitation, the delivery of
health care, and parity of programming with
the men. The state had planned to build a
new facility, but in 1993 withdrew its support
for such a facility. Alawsuit was filed on April
21, 1993 on behalf of the women prisoners.
Kay Many Horses v. Racicot, Civ-93-3F-BUPGH. Class certification was ordered and discovery is ongoing.
27. Nebraska: Aclass action was filed
concerning four general-population units of
the Nebraska State Penitentiary. The action
challenges overcrowding and other conditions of confinement, including protection
from harm issues. On June 11, 1992, the
magistrate judge entered his Report and
Recommendation, finding that these facilities
were not "unconstitutionally overtaxed."
However, in terms of the violence issue, the
magistrate judge found that the defendants
failed to develop adequate policies to protect
prisoners from assault. The magistrate judge
also warned the defendants about the consequences of continuing population growth,
and invited the plaintiffs to return to court
upon a showing of changed circumstances.
This decision was adopted by the district
judge.jensen v. Gunter, 807 F. Supp. 1463
(D. Neb. 1992). The state appealed on the
violence issue, but in 1993 the Eighth Circuit
held that the appeal was not timely. On
remand, the state has submitted a proposed
remedial plan; hearings will be scheduled.
In a case challenging conditions at the
Medium Security Unit of the Nebraska State
Penitentiary, the court held that there was no
violation of the Eighth Amendment. However,
the court did note that those conditions "are
potentially close to creating intolerable conditions ... unless remedial measures are
implemented." Kitt v. Ferguson, 750 F. Supp.
1014, 1019 (D. Neb. 1990), affd without
opinion, 950 F.2d 725 (8th Cir. 1991).
Women prisoners confined to the Nebraska
Center for Women (NCW) at York brought a
class action seeking parity with male prisoners in terms of programs and services. On
June 21, 1993, the district court judge
entered a favorable decision. Klinger v.
Lofgren, 807 F. Supp 1463 (D. Neb. 1993).
The state has appealed.

28. Nevada:* The Nevada State Prison at
Carson City has been under a comprehensive
court order since 1980 concerning population, conditions, and delivery of health-care
services. Anew consent decree consolidating
the previous orders was entered by the district court on May 19, 1988. Phillips v.
Bryan, CVR-77-221-ECR (name later changed
to England v. Miller, with the same docket
number). Two monitors appointed under the
terms of the agreement have been reporting
on compliance. By the end of 1993, all areas
of the original\decree were in compliance
and the ordet:,'was vacated, with the exception
of the inma(f;Hobs issue. Adecision is awaited
on the defendants' pending motion to vacate
that last issue.
In 1979, a lawsuit was filed challenging the
delivery of mental-health services to all
Nevada prisoners. Taylor v. Wolff, CVN 79162JMB (D. Nev.). An agreement and consent
decree were entered in 1986. Compliance is
being monitored.
Women prisoners confined to Nevada
Women's Correctional Center have filed a lawsuit alleging gender discrimination with
respect to programming and conditions at the
facility. Defendants' motion for summary judgment was denied. McCoy v. Nevada
Department ofPrisons, 776 F. Supp. 521
(D. Nev. 1991). The case was settled in 1993
with the filing of a Stipulated Settlement Agreement. Dillard v. Nevada Department of Prisons,
CV-N-89-94-HDM (filed February 10, 1993).
29. New Hampshire:* The state penitentiary is under court order dealing with total
conditions. Laaman v. Helgemoe, 437 F.
Supp. 269 (D.N.H. 1977). The parties negotiated a consent decree in May 1990 that
resolved a pending motion for contempt. The
plaintiffs filed a further contempt motion in
June 1993 covering health care and the prison's operation of the maximum-security unit.
Discovery is ongoing.
30. New Jersey: For years, the state has
been able to stave off overcrowding in its
prisons by mandating that county jails take
the overflow of sentenced prisoners from the
state system. However, most of the state's
twenty-one county jails are under court
order. In 1993, the New Jersey Supreme
Court, incident to a jail case, lifted the
requirement that the local facilities must confine sentenced prisoners. The state was given
until April 22, 1994 to prepare a plan.
31. New Mexico:* The entire system is
under court order on overcrowding and total
conditions. Duran v. Apodaca, C.A. No. 77721-C (D.N.M.) (consent decree entered Aug.
1, 1980). Aspecial master was appointed in
June 1983. The defendants moved to vacate
the consent decree, but the district court
denied the motion. Duran v. Carruthers, 678
F. Supp. 839 (D.N.M. 1988). The court of
WINTER 1993/94

7

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

appeals affirmed the decision. 885 F.2d 1485
(10th Cir. 1989), cert. denied, 493 U.S.
1056 (1990). Because the state is in substantial compliance with much of the decree, in
August 1991 the parties agreed to an eventual
vacating of the decree. In exchange, the state
agreed to a permanent, nonmodifiable set of
population controls, including a prohibition
against double-ceiling. The district court
approved this settlement in an order entered
on September 20, 1991. Following the special
master's reports evaluating compliance, filed
in January 1993, the judge ordered the DOC
to resolve health and safety problems at the
Penitentiary of New Mexico complex near
Santa Fe, but released from federal court
supervision the three state prisons that had
achieved compliance. Conditions at the penitentiary continue to be audited.
32. New York: While no statewide comprehensive lawsuits have been brought,
numerous prison facilities are under court
order, and injunctive relief has been obtained
in the following cases:
In 1979, a case was filed challenging the
delivery of medical care at Green Haven
Correctional Facility. Milburn v. Coughlin,
79 Civ. 5077 (S.D.N.Y.). In 1982, the parties
entered into a comprehensive settlement.
Later, in order to settle a contempt motion,
the parties negotiated a modified agreement.
Compliance is being monitored.
Acase was filed challenging delivery of
medical care at the Bedford Hills women's
prison. The court of appeals upheld a favorable opinion and order. Todaro v. Ward, 565
F.2d 48 (2nd Cir. 1977). In 1988, a renegotiated consent decree was entered, including
improvements in the delivery of health care in
general and the enforcement of services to
HIV-positive prisoners. Compliance is being
monitored. In 1993, a further addition to the
decree was made concerning gynecological
care, increasing medical staffing, and providing that some other terms of the judgment
will be relaxed upon a showing of a satisfactory record of compliance.
Astatewide cla~s-action suit was filed in
1980 on behalf of prisoners confined to segregation units. Anderson v. Coughlin, 80 Civ.
3037 (S.D.N.Y.). Aconsent decree was entered in 1984 on the medical and legalaccess issues. In 1985, the court of appeals
upheld an unfavorable decision on the exercise and recreation issues. Anderson v.
Coughlin, 757 F.2d 33 (2nd Cir. 1985).
Compliance is being monitored.
The protective-custody unit at Green Haven
Correctional Facility is operating under a
1983 consent judgment concerning conditions and practices. Honeycutt v. Coughlin,
80 Civ. 2530 (S.D.N.Y.). Compliance is being
monitored.
Afederal district court judge held defen8

WINTER 1993/94

dants liable for racial segregation in housing
and job assignments at Elmira Correctional
Facility. Santiago v. Miles, 774 F. Supp. 775
(W.D.N.Y. 1991). During 1992, the parties
and the judge developed an order to correct
the problems. Aremedial order was entered
in 1993 and is currently being monitored.
Prisoners at Clinton Correctional Facility
brought a class-action suit in 1983 concern- >
ing the delivery of mental-health services.
Tomasullo v. LeFevre, 84 CV 1035
.
(N.D.N.Y.). Asettlement was reached in eail,y
1992, including improved access to recreation, improved supervision, and the installation of surveillance cameras.
Anderson v. Coughlin was filed as a class
action on behalf of all mentally ill inmates in
Green Haven Correctional Facility and Auburn
Correctional Facility. See 119 F.R.D. 1
(N.D.N.Y. 1988). In 1991, the magistrate
judge consolidated Anderson and Tomasullo
(above). Asummary judgment motion was
later filed by plaintiffs. Since 1992, the parties
have been involved in settlement negotiations.
The Attica Special Housing Unit is under
challenge on conditions of confinement. In
1990, the court granted a preliminary injunction providing substantial relief on the delivery of medical-care services. Eng v. Coughlin, CV-80-3859 (W.D.N.Y.). See also 865
F.2d 521 (2nd Cir. 1989). In 1992, a settlement was reached on the medical issues; a
later agreement was reached on the lawlibrary claims. Mental-health discussions
have been consolidated with the Anderson
and Tomasullo cases discussed above.
In May 1992, prisoners housed in overcrowded dormitory facilities in ten New York
prisons filed a lawsuit challenging these conditions on the grounds that they increase the
risk of exposure to tuberculosis. TB screening and access to adequate treatment are also
at issue. Cunningham v. Coughlin, No. 92CV-0579 (N.D.N.Y.). Aclass has been certified and discovery is proceeding.
The Bedford Hills Correctional Facility was
under challenge concerning the delivery of
mental-health services for women confined in
segregation facilities. The injunctive claims
were settled by stipulation in 1989. After two
years of monitoring compliance, the case was
closed. Class damage claims were the subject
of defendants' motion for summary judgment
on the ground of qualified immunity. This
defense was denied. Langley v. Coughlin,
709 F. Supp. 482 (S.D.N.Y.), appeal dismissed, 888 F.2d 252 (2nd Cir. 1989). In a
later opinion, the court accepted the recommendations of the magistrate to deny defendants' further motion for summary judgment
and for class decertification. 715 F. Supp.
522 (S.D.N.Y. 1989). Subsequently, the damage claims were settled for $350,000.
Astate court action was commenced in

1991 challenging aspects of the medical-care
system, the excessive use of restraints and cell
shields, and other conditions at the Special
Housing Unit prison at Southport, the state's
so-called "supermax" facility. Rivera v.
Coughlin (Sup. Ct., Chemung County). Plaintiffs obtained a partial consent order and
were successful on other issues. Counsel continue to monitor compliance with the orders.
Astatewide class-action suit was filed in
1990 challenging the inadequate treatment of
HIV-positive prisoners and deficiencies in the
HIV education pr~ram. Inmates with AIDS
v. Cuomo, No. 9.Q.cV252 (N.D.N.Y.). This
action was certified as a class action and discovery is proceeding, subject to elaborate
safeguards to protect confidentiality.
33. North Carolina:* In September 1985,
a consent judgment was entered covering
overcrowding, staffing, programming, and
medical services in thirteen units of the
state's road and farm camp system in the
South Piedmont area. Hubert v. Ward, C-C80-414-M (W.D.N.C.). Compliance was
achieved, and the case was placed on the
court's inactive docket.
The Craggy Unit outside Asheville was
under an August 1987 consent decree covering conditions and overcrowding. Epps v.
Martin, A-C-86-162 (W.D.N.C.). Anew prison
was completed and Craggy was closed.
The Caledonia Farm facility is operating
under a 1988 consent decree concerning
overcrowding and general conditions. The
consent decree imposed a population cap
and emphasized both the protection from
assault and the reduction of violence. Stacker
v. Stephenson.
There are also pending cases on overcrowding and conditions at Odom Farm,
Barnet v. Allsbrook, No. 89-705 CRT BO
(E.D.N.C.), and Harnett Correctional Center,
Bass v. Stephenson, No. 87-499-CRT BO
(E.D.N.C.). These cases, filed in 1989, are
still in the discovery phase.
The remaining forty-nine units of the state
system are operating under a December 1988
settlement covering overcrowding and conditions. Small v. Martin, 85-987-CRT
(E.D.N.C.). Compliance is being monitored.
In 1993, the state filed a motion for modification; the plaintiffs responded on November
12, 1993.
34. North Dakota: No cases have been
filed dealing with overcrowding or conditions.
35. Ohio:* In a case involving the
Southern Ohio Correctional Facility, the district court banned double-ceiling. The
Supreme Court later reversed this decision.
Chapman v. Rhodes, 434 F. Supp. 1007 (S.D.
Ohio 1977), aJfd, 624 F.2d 1099 (6th Cir.
1980), rev'd, Rhodes v. Chapman, 452 U.S.
337 (1981).
Apreliminary injunction was entered at the
THE NATIONAL PRISON PROJECT JOURNAL

Columbus State Prison on the housing of
prisoners by race and on the use of certain
physical restraints. Stewart v. Rhodes, 473
F. Supp. 1185 (S.D. Ohio 1979). Aconsent
decree was later entered in 1979, incorporating the provisions of the preliminary injunction. See 656 F.2d 1216 (6th Cir. 1981).
The state prison was closed in 1985.
The Ohio State Reformatory at Mansfield
was operating under a consent decree on various conditions. Boyd v. Denton, C78-1679
(N.D. Ohio) (order entered June 1983). The
prison was closed at the end of 1990. Medical
care at Mansfield operated under a 1982 consent decree. Register v. Denton, C-78-1680
(N.D. Ohio). The plaintiffs presently are arguing that the decree is applicable to the successor facility, called the Mansfield
Correctional Institution. In 1993, the parties
engaged in settlement negotiations.
The Marion Correctional Facility was operating under various court orders concerning
conditions and population. Taylor v. Perini,
No. C69-275 (N.D. Ohio). See published
orders and reports of the special master in
this case at 413 F. Supp. 189 (N.D. Ohio
1976); 421 F. Supp. 740 (N.D. OhiO 1976);
431 F. Supp. 566 (N.D. Ohio 1977); 446 F.
Supp. 1184 (N.D. Ohio 1977); 455 F. Supp.
1241 (N.D. Ohio 1978); and 477 F. Supp.
1289 (N.D. Ohio 1980). The remedial orders
were vacated in 1991, following a report and
recommendation of the special master.
Acase filed by an individual prisoner challenging conditions and crowding at the
Hocking Correctional Facility was dismissed
by the district court. On appeal, thiS decision
was affirmed. Wilson v. Seiter, 893 F.2d 861
(6th Cir. 1990). In June 1991, the Supreme
Court reversed and remanded. IllS. Ct.
2321 (1991). The district court on remand
entered summary judgment against the plaintiff. The plaintiff filed a notice of appeal;
however, because the prisoner was subsequently released, the case was dismissed as
moot. Wilson v. Seiter, No. 92-3332 (6th Cir.
Aug. 20, 199.,7) (order).
In November 1991, a class-action suit was
brought by prisoners at the London
Correctional Institute concerning overall
conditions of confinement, including overcrowding, inadequate building maintenance,
and racial discrimination. Thompson v.
Alexander, No. C2:90-CV-845 (S.D. Ohio).
Discovery was ongoing during 1993.
Aclass action challenging racial discrimination in assigning inmates to double-cells at
the Southern Ohio Correctional Facility of
Lucasville was commenced in 1988. The district court approved a settlement requiring
random housing without regard to race,
unless particular circumstances required
otherwise. White v. Morris, 811 F. Supp 341
(S.D. Ohio 1992.)
THE NATIONAL PRISON PROJECT JOURNAL

Several prisoner pro se lawsuits have been
transformed into a class-action suit. An
Amended Complaint and Motion to Certify the
Class were filed on October 6, 1993, alleging
inadequate or nonexistent mental-health coverage in all Ohio prisons. Dunn v.
Voinovich, No. CI-93-0166 (S.D. Ohio). +'
36. Oklahoma:* The state penitentiary,it
McAlester is under court order on total conditions, and the entire state prison syst~m is
under court order on overcrowding. Bqttle v.
Anderson, 564 F.2d 388 (10th Cir. 1977).
The district court's decision in 1982 to retain
jurisdiction to assure continued compliance
was upheld. 708 F.2d 1523 (10th Cir. 1983),
cert. dismissed, 465 U.S. 1014 (1984).
Later, in 1984, the district court relinquished
jurisdiction; that decision was affirmed. 788
F.2d 1429 (10th Cir. 1986). Although the
court has ended active supervision, all compliance orders are still in effect, and the penitentiary remains under permanent injunction. In fact, the state recently asked the
court to vacate or amend the original order
to allow the state to renovate closed housing
due to overcrowding. The court determined
that the order is still in effect, and refused to
amend the order because circumstances have
not changed. Plaintiffs' counsel remains
actively engaged in compliance monitoring.
37. Oregon: The state penitentiary was
under a court order on overcrowding. Capps
v. Atiyeh, 495 F. Supp. 802 (D. Or. 1980),
stayed, 449 U.S. 1312 (1981) (Rehnquist,
J.), vacated and remanded, 652 F.2d 823
(9th Cir. 1981). On remand, the district
court determined that only medical care and
fire safety violated the Eighth Amendment.
559 F. Supp. 894 (D. Ore. 1982).
Prisoners brought an action concerning
the delivery of health-care services at the
Eastern Oregon Correctional Institution. On
May 29, 1991 the district court entered an
opinion holding that such services were constitutionally inadequate up to March 1990.
Van Patten v. Pearce No. 87-298-PA (D.
Ore.). The court later appointed an expert
who filed a report. Based on that report, the
court entered an order requiring improvements. Order of February 10, 1992. The state
has appealed.
38. Pennsylvania:* Acase was filed at the
women's state prison at Muncy challenging
equal protection violations and hazardous
physical conditions, including fire-safety violations. Beehler v. Jeffes, 664 F. Supp. 931
(M.D. Pa. 1986), affd without opinion sub
nom. Beehler v. Lehman, 989 F.2d 486 (3rd
Cir. 1993). Most of the claims have been settled or voluntarily dismissed; an asbestos
claim is pending and plaintiffs are monitoring the removal schedule.
The State Correctional Institution at
Pittsburgh (SCIP) is under court order to

reduce double-celling in the old 19th-century
cellblocks and to improve staffing and the
delivery of medical and mental-health services. Tillery v. Owens, 719 F. Supp. 1256
(W.D Pa. 1989), affd, 907 F.2d 418 (3d Cir.
1990), cert. denied sub nom. Mikesell v.
Morgan, 112 S. Ct. 343 (1991). The parties
negotiated a remedial agreement in 1990,
which the court then entered as an order. In
early 1991, the district court entered further
orders on segregation legal-access issues. The
state appealed from this order; on April 14,
1993, the dist};ct court order was affirmed.
Tillery v. Ow~ns, No. 92-3492 (3d Cir.). On
remand, the parties are negotiating various
other segregation legal-aSSistance issues.
Compliance monitoring is ongoing with
respect to the other orders in the case.
On November 20, 1990, a case was filed
challenging conditions and overcrowding at
thirteen state facilities, excluding those
already under court order. Austin v.
Lehman, C.A. No. 90-7497 (E.D. Pa.). A
motion to dismiss was denied, and discovery
is under way. On September 28, 1992, the
district court entered a preliminary injunction ordering the defendants to implement an
effective tuberculosis-control program
throughout the state prison system. In
November 1993, trial commenced on the
corrections issues; enVironmental-health and
health-care delivery issues will be tried
thereafter.
39. Rhode Island:* The entire state system is under court order on overcrowding
and total conditions. Palmigiano v. Garrahy,
443 F. Supp. 956 (D.R.I. 1977). Aspecial
master was appointed in September 1977.
New population caps were imposed by court
order in June 1986. Various contempt orders
have been entered. See, e.g., Palmigiano v.
DiPrete, 700 F. Supp. 1180 (D.R.I. 1988).
On August 21, 1989, the First Circuit affirmed
in all respects the trial court's opinions and
contempt orders of October 21, 1988 and
April 6, 1989, imposing sanctions. The trial
court ordered that the fines be utilized to
establish a bail fund to release low-bail
detainees. 710 F. Supp. 875 (D.R.I.), affd,
887 F.2d 258 (lst Cir. 1989). In May 1990,
the court made an additional finding of noncompliance with population-cap orders and
required the release of certain prisoners.
737 F. Supp. 1257 (D.R.I. 1990). In
November 1992, the Governor created an
overcrowding commission, and legislation
has now been passed permanently controlling
the prisoner population at agreed limits, with
a permanent justice oversight committee to
monitor developments. The final details of a
settlement agreement covering all of the
issues in Palmigiano are being negotiated.
40. South Carolina:* The entire prison
system is under a 1985 consent decree on
WINTER 1993/94

9

overcrowding and conditions. Plyler v. Evatt,
C.A. No. 82-876-0 (D.S.C. Jan. 8, 1985). A
release order entered by the district court in
the summer of 1986 was held moot by the
court of appeals. 804 F.2d 1251 (4th Cir.
1986). In 1988 the district court denied the
state's motion to modify the consent decree
and ordered the state to reduce the prison
population in conformance with the decree.
This order was vacated and remanded by the
court of appeals. 846 F.2d 208 (4th Cir.
1988). In 1990 the district court again
denied the state's motion to modify the
decree and again the court of appeals vacated
and remanded the case. 924 F.2d 1321 (4th
Cir. 1991). There have been extensive subsequent negotiations in this case. In 1990, the
parties agreed to permit an increase in population, but the state made important concessions in programming and future construction. On June 1, 1992, the plaintiffs filed a
state court action to enforce the terms of the
1985 agreement to utilize extant state statutes
to reduce population. Plyler V. Evatt, No.
92CP 402275 (Ct. Comm. Pleas, 5th Jud.
Cir.). Also in 1992, incident to the federal
action, the defendants moved to modify the
classification and education terms of the
1985 consent decree. An agreement was
reached through negotiation and signed by
the parties on August 23, 1993. On October
12, the defendants moved to withdraw their
consent to the Compromise Agreement.
Plaintiffs opposed the defendants' motion.
The court's decision is pending on this issue
and on plaintiff's motion to compel compliance with the population requirements of the
consent decree.
41. South Dakota:* The state penitentiary
at Sioux Falls is under court order on a variety of conditions. Cody V. Hillard, 599 F.
Supp. 1025 (D.S.D. 1984). The appeals court
reversed an overcrowding order, finding that
double-celling was not unconstitutional. 830
F.2d 912 (8th Cir. 1987) (en bane), cert.
denied, 485 U.S. 906 (1988). In 1992, the
district court co!!ducted an evidentiary hearing on the plaintiffs' motion for enforcement
of the order on environmental conditions.
The motion for enforcement was granted on
November 29, 1992.
42. Tennessee:* The entire system is
under court order for overcrowding and conditions. Grubbs V. Bradley, 552 F. Supp.
1052 (M.D. Tenn. 1982). The court ordered
a reduction in population, and appointed a
special master in December 1982. In an
October 25, 1985 order, the court enjoined
the intake of new prisoners because the state
had failed to comply with the populationreduction terms of prior orders.
On May 14, 1993, the district court found
that the defendants cured the constitutional
violations previously found in the areas of
10

WINTER 1993/94

housing conditions, sanitation, personal safety, classification, and the delivery of healthcare services to state prisoners. Grubbs V.
Bradley, 821 F. Supp. 496 (M.D. Tenn.
1993). The court then vacated and dissolved
all of the outstanding remedial orders entered
in the case, except for a requirement in terms '
of health care that a quality-assurance program be instituted and a ban on housing any
prisoners at the old State Penitentiary in
Nashville. "If the past, present and future officials of the State of Tennessee have not
learned a Three Hundred Million Dollar
($300,000,000) plus lesson in this litigation,
then further instruction is hopeless, and the
solution will have to be left for another day
and another lawsuit". Id. at 503 n.4.
43. Texas: In 1980, the entire state prison
system was declared unconstitutional on
overcrowding and conditions. Aspecial master was appointed. Ruiz V. Estelle, 503 F.
Supp. 1265 (S.D. Tex. 1980), afj'd in part
and rev'd in part, 679 F.2d 1115 (5th Cir.
1982). The parties negotiated an agreement
and, in 1985, a consent decree was entered
on the issue of overcrowding. On December
3, 1986, the district court held state officials
in contempt. Ruiz V. McCotter, 661 F. Supp.
112 (S.D. Tex. 1986). The contempt order
was vacated on April 27, 1987; no fines were
imposed. The state sought to modify the terms
of the consent decree concerning crowding;
this motion was denied and the denial was
affirmed on appeal. Ruiz V. Lynaugh, 811
F.2d 856 (5th Cir. 1987). During the summer
of 1989, private corporations operating state
prisons on a contract basis were added as
party defendants.
In 1992, the Ruiz parties filed a negotiated
proposed final judgment in the case. The proposed order contains system-wide and facility
population limits and the provision of adequate medical care, including accreditation by
the NCCHC. Significant orders concerning
staffing, a ban on the use of "building tenders'" administrative segregation, and the use
of force remain in effect. The agreement requires compliance with other provisions of
the order, including renovation of facilities by
June 1, 1993, to permit the termination of the
special master and the withdrawal of plaintiffs' class counsel. The final judgment was
approved by the court on December 11, 1992.
As oOune 1, 1993, pursuant to the terms of
the judgment, the plaintiffs' counsel was
relieved of any obligations to the class and the
Office of the Special Master was discharged
with respect to all but three discrete issues.
Because the backlog of state prisoners confined in county facilities affects the Ruiz consent order, the Fifth Circuit has ordered the
Ruiz court and the district court having jurisdiction over the jail cases to hear jointly any
requests for relief requiring the transfer of

county prisoners into state custody. In re
Clements, 881 F.2d 145 (5th Cir. 1989), and
Alberti V. SheriffofHarris County, 937 F.2d
984 (5th Cir. 1991), cert. denied sub nom.
Richards V. Lindsay, 112 S. Ct. 1994 (1992).
44. Utah: The state penitentiary is operating under a consent decree on overcrowding
and some conditions. Balderas V. Matheson
(formerly Nielson V. Matheson), C-76-253
(D. Utah). The 1979 consent decree was
ignored because it lacked an effective mechanism for enforcement. Alawsuit challenging
double-ceiling at $e penitentiary was filed in
1986. Baker v.1)e:land, No. C86-0361G. In
June 1989, the c6hrt entered a temporary
restraining ord~1" regarding double-ceiling. In
November 1991, the magistrate judge filed a
report with the court recommending that double-ceiling be barred in some units, while permitting it in others after remodeling. On
March 20, 1992, the district court accepted
the report and entered an injunction. Baker V.
Holden, 787 F. Supp. 1008 (D. Utah 1992).
In December 1989, a further complaint was
filed challenging the delivery of medical and
mental-health services at the state penitentiary. Henry V. DeLand, C.A. 89-C-1124 (D.
Utah). On September 8, 1992, the parties
signed a consent decree to improve mentalhealth services. Amedical-care plan was submitted to the court, which approved the plan
on February 11, 1993. The court approved a
final order settlement of the medical and dental claims on June 1, 1993, and retained
jurisdiction for the purposes of enforcing the
settlement.
45. Vermont:* The old state prison was
closed in the late 1970s. However, conditions
as a result of overcrowding and the delivery
of health-care services in Vermont's prisons
(which also house pretrial detainees) are the
subject of a lawsuit filed recently in the federal district court. Goldsmith V. Dean, No.
S:93-CV-383 (D. Vt. filed Dec. 13, 1993).
46. Virginia:* The state prison at Powhatan is under a consent decree dealing with
overcrowding and conditions. Cagle V. Hutto.
79-0515-R (E.D. Va.).
The maximum-security prison at Mecklenburg, including its death-row unit, is under a 1985 court order dealing with various
practices and conditions. Brown V. Hutto,
81-0853-R (E.D. Va.).
The 190-year-old state penitentiary at
Richmond was challenged in 1982 on the
totality of conditions. Shrader V. White, C.A.
No. 82-0247-R (E.D. Va.). The trial court dismissed the complaint in June 1983. The court
of appeals affirmed in part and remanded in
part. 761 F.2d 975 (4th Cir. 1985). The
remand was settled in 1987, covering certain
prisoner-safety issues.
On September 21, 1990, another lawsuit
was filed challenging deteriorating conditions
THE NATIONAL PRISON PROJECT JOURNAL

lit the Richmond penitentiary, which on three
occasions the state had announced would be
closed. Congdon v. Murray, 90-CV-00536
(E.D. Va.). On November 21, 1990, the district court ordered that basic fire-safety and
sanitation measures be taken immediately.
The state permanently closed the prison on
December 14, 1990.
47. Washington:* The state penitentiary at
Walla Walla was declared unconstitutional on
overcrowding and conditions, and a special
master was appointed. Hoptowit v. Ray, C79-359 (E.D. Wash. June 23, 1980), affd in
part, rev'd in part, vacated in part, and
remanded, 682 F.2d 1237 (9th Cir. 1982).
The court of appeals affirmed the subsequent
decision of the trial court and remanded the
case again for entry of an order. Hoptowit v.
Spellman, 753 F.2d 779 (9th Cir. 1985). An
order was filed on April 10, 1986. The defendants' motion to dissolve the injunction was
denied on May 22, 1987. Compliance is being
monitored.
Alawsuit filed in 1978 challenged conditions and delivery of medical-care services at
the State Reformatory at Monroe. Collins v.
Thompson, Nos. C-78-79R, C-78-134 (W.D.
Wash.). The parties agreed to a settlement in
1981 that includes a population cap. Since
then, the defendants have sought to have the
decree vacated on four separate occasions.
The last motion to vacate was filed in August
1992 and approved in February 1993. The
plaintiffs appealed to the Ninth Circuit, which
affirmed; an en banc review has been
requested.
48. West Virginia: The state penitentiary at
Moundsville is under court order on overcrowding and conditions. Crain v. Bordenkircher, No. 81-C-320R (Circuit Court,
Marshall County) (memorandum and order
dated June 21,1983). The plaintiffs challenged as insufficient a remedial plan prepared by the defendants. The West Virginia
Supreme Court of Appeals agreed with the
plaintiffs, and ordered the defendants to develop a new pia!}. 342 S.E.2d 422 (W. Va. 1986).
Since that 1986 decision, the Supreme Court of
Appeals has maintained jurisdiction over this
case. In 1988, the court ordered the defendants' improved plan to be implemented, and
further ordered the state to close the prison.
376 S.E.2d 140 (W. Va. 1988). Thereafter,
opinions on the status of implementation have
been filed on an annual basis. See 382 S.E.2d
68 (W. Va. 1989); 392 S.E.2d 227 (W. Va.
1990); and 408 S.E.2d 355 (W. Va. 1991). In
1992, the court gave the state a two-year
extension to close Moundsville, in order to
coincide with the construction and opening of
a new prison to be located at Mount Olive. July
1994 is currently the scheduled date for the
closing of Moundsville and the opening of the
new facility.
THE NATIONAL PRISON PROJECT JOURNAL

The Huttonsville Correction Center is also
under court order with respect to crowding
and conditions. The detailed order required
population reduction and the building of a
vocational training center. Nobles v. Gregory,
No. 83-C-244 (Circuit Court, Randolph County)
(memorandum and order dated Feb. 22,
<:.
1985). Enforcement proceedings are ongoing~;
In 1981, the Supreme Court of Appeals held
that women prisoners had a state statutory .
and constitutional right to rehabilitation, ~nd
education. Cooper v. Gwinn, 292 S.E.29.'781
(W. Va. 1981). Detailed orders were ente'red
thereafter. The women were transferred in
1990 to a facility located in Grafton, West
Virginia. Compliance is being monitored.
49. Wisconsin:* The state prison at
Waupun is under a court order on overcrowding. Delgado v. Cady, 576 F. Supp.
1446 (E.D. Wis. 1983).
The women's prison at Taycheedah is operating under a 1988 consent decree that
imposes a population cap and deals with programming, delivery of medical services, and
environmental-health issues. Bembenek v.
Bablitch, No. 86-c-262 (E.D. Wis.).
Compliance is being monitored.
50. Wyoming:* The old state penitentiary
was being operated under the terms of a stipulation and consent decree. Bustos v.
Herschler, C.A. No. C76-143-B (D. Wyo.).
The federal court relinquished jurisdiction in
early 1983; that prison is now closed. Anew
prison was opened thereafter.
51. District of Columbia:* The District
jails are under court order on overcrowding
and conditions. Inmates ofD. C. jail v.
jackson, 416 F. Supp. 119 (D.D.C. 1976);
Campbell v. McGruder, 416 F. Supp. 100
(D.D.C. 1975), affd in part and remanded,
580 F.2d 521 (D.C. Cir. 1978) (concerning
the old D.C. Jail). On remand, the court
ordered a time limit on double-ceiling and an
increase in staff at the new D.C. Jail (CDF).
554 F. Supp. 562 (D.D.C. 1982). In 1985,
after trial, the district court ordered that
intake be enjoined. Inmates ofD. C. jail v.
jackson, No. 75-1668 (D.D.C. July 15,1985).
Aconsent decree, which supplanted the initial
order and required a reduction in population, was entered on August 22, 1985. After
an evidentiary hearing on the delivery of medical and mental-health services in 1993, the
district judge entered orders appointing a
special officer, requiring her to prepare a
report on improving health-care services, and
ordering immediate interim relief.
Several facilities at the Lorton Complex, the
District's facility for sentenced prisoners, are
under court order for overcrowding, conditions, and the delivery of health services.
Population caps are in place at both the
Central Facility and the Maximum Security
Facility. Twelve john Does v. District of

Columbia, No. 80-2136 (D.D.C.) (Central);
john Doe v. District ofColumbia, No. 791726 (D.D.C.) (Maximum). Aspecial officer
has been appointed in both cases. The
District has been held in contempt for violations of the cap at Central. Twelve john Does
v. District ofColumbia, 855 F.2d 874 (D.C.
Cir. 1988). In 1992, the district court entered
a further consent decree on various medicaland mental-health-care issues in the Central
case. (Order oOune 10, 1992.) Compliance
monitoring continues.
On December 22, 1986, Lorton's mediumsecurity Occoq~an facilities came under court
order, and a p'bpulation cap was imposed.
Inmates o/Occoquan v. Barry, 650 F. Supp.
619 (D.D.C. 1986), vacated and remanded,
844 F.2d 828 (D.C. Cir.), rehearing en banc
denied, 850 F.2d 796 (D.C. Cir. 1988) (containing dissenting opinions and separate
statements). On remand, a second trial was
held in January 1989. The facility was again
held unconstitutional, and the defendants
were ordered to devise a plan to alleviate
constitutional violations. 717 F. Supp. 854
(D.D.C. 1989). Three plans were approved by
the court. In 1992, the district court interpreted the mental-health-plan order to
reqUire that seriously mentally ill prisoners
be transferred to the D.C. Jail and be provided an adequate treatment program. In 1993,
the plaintiffs filed a motion for contempt on
the delivery of mental-health services to
transferred Occoquan prisoners. This motion
was denied by the court without prejudice to
renew. Compliance monitoring included tours
by plaintiffs' medical and environmentalhealth experts.
In March 1990, a lawsuit was filed challenging crowding and conditions at Lorton's
Modular Facility, a new prison that was
designed as the District's reception-and-classification facility. Inmates ofModular
Facility v. District ofColumbia, No. 900727 (D.D.C.). In the middle of trial, a settlement was reached and a consent decree
entered; the decree includes a population cap
and requires improvements in medical care.
(Order of Dec. 14, 1990.) Compliance is
being monitored.
On May 20, 1992, a complaint was filed
challenging the delivery of medical care at
three other District prisons at Lorton: the
Medium Security Facility, the Minimum
Security Facility, and the Youth Center. Inmates ofThree Lorton Facilities v. District
ofColumbia, No. 92-1208 (D.C.D.C.).
Discovery is ongoing.
In October 1993, a lawsuit was commenced
challenging the delivery of health-care services, conditions of confinement, and discriminatory treatment of women prisoners in
D.C. prison facilities. Women Prisoners of
the District ofColumbia Dep't ofCorrecWINTER 1993/94

11

tions v. District ofColumbia, No. 93-2052
CD.D.C.). Discovery is ongoing.
52. Puerto Rico: The entire Commonwealth
prison system is under a 1979 court order
dealing with overcrowding and conditions.
Morales Feliciano v. Romero Barcelo, 497 F.
Supp. 14 CD.P.R. 1979). In 1986, the Commonwealth was again found liable on crowding, conditions, and delivery of health-care services in its entire prison and jail system. Two
court monitors were appointed. 672 F. SUpp.
591 CD.P.R. 1986). In 1987, the Commonwealth was held in contempt for violation of
the population limits set out in a 1986 stipulation. Morales Feliciano v. Hernandez Colon,
697 F. Supp. 26 CD.P.R. 1987).
In 1990, the defendants filed a motion to
modify the space requirements of the 1986
stipulation; the plaintiffs renewed their
motion for contempt. In 1991, the court denied the defendants' motion, granted the
plaintiffs' motion, and entered a prospective
fine of $1 per prisoner per day above the
population cap. Morales Feliciano v.
Hernandez Colon, 754 F. Supp. 942 CD.P.R.
1991). The court appointed a special master
for the purpose of contracting on behalf of
the defendants to prepare plans and to make

°

evaluations on various environmental-health
issues. 771 F. SUpp. 11 CD.P.R. 1991). Later
in 1991, the court ordered the defendants to
transfer the accumulated fine money,
amounting to one million dollars per week,
to the U.S. Treasury. 775 F. Supp. 487
CD.P.R. 1991).
.';
Apopulation cap was established at Ponce '"
District Jail, where sentenced felons are
housed. Morales Feliciano v. Hernandez
Colon, 697 F. Supp. 37 CD.P.R. 1988). The,'
district court ordered contempt fines for viQc
lations of the cap; the fines were upheld on"
appeal. Morales Feliciano v. Parole Board,
887 F.2d 1 (lst Cir. 1989), cert. denied, 494
U.S. 1046 (1990).
53. Virgin Islands: The territorial prison
is under court order dealing with conditions
and overcrowding. Barnes v. Government of
the Virgin Islands, 415 F. Supp. 1218 CD.V.I.
1976). As a result of a CRIPA action brought
by the Department of Justice's Special Litigation Division, the St. Croix prison, Golden
Grove, is covered by a 1986 consent decree.
Following a prolonged lockdown at Golden
Grove, the DOJ brought a motion to end the
lockdown and participated in a status conference with the judge in St. Croix. Aconsent

decree ended the lockdown as of December
20, 1993. The Criminal]ustice Complex in St.
Thomas is still locked down, and several
ongoing pro se suits challenge conditions of
confinement there...

Edward Koren is a senior staffattorney with
the NPP.

ffJ!mOW@!MW
"

==~@@@t=::::::===
An International Conference on
the Present State and Future of
Imprisonment
University of Leicester, England
E1h - 1(1h Apri/1994
For further details contact: Julie Trickey,
Centre for the Study of Public Order,
Universityof Leicester,154 UpperNewWalk,
Leicester, England, LEI 7QA
Tel: (0)533522832/525707
Fax: (0)533 523944

Summary
Thirty-nine states plus the Dist
the Virgin Islands are under
limit population and/or im
state system or its majorfa
under court orderfor overc1'
oftheir majorprison faciliti
under court order covering t
have never been involved in
crowding or conditions i
the current status ofea
indicate statesljurisdict
in the litigation.)
Note: There is some overlap
gories because, in some stat
court order whiJe otherfa
challenged (e.g., Illinois).
second and third categori
under the court order enten
longer under active court su

, Puerto Rico, and
ent decree to
either the entire
jurisdictions are
ns in at least one
sdictions are
Only three states
allenging over. :g list gives
wing the name
has been involved
andfourth cate. ities are under
epresently being
ted in both the
tel'facility is still
son but is no

Entire Prison System Under

9 jurisdictions: Alaska,* Delaw
Rhode Island,* South Carolina

12

WINTER 1993/94

aska,* Arizona,* Arkansas,*
a, Hawaii,* Idaho,* Illinois,* Kan
a,* New Mexico,* New York,*
d,* Tennessee,* Texas, Washington,
to Rico.

°

Facilities Under Court Order an
ent and past)

Major Institution(s) in the S
Under Court Order or Co

33 jurisdictions: Arizona,* C
Florida, Hawaii,* Idaho,* Illi
Kentucky, Louisiana, Maine,*
Michigan,* Missouri,* Nevada

a,* Oregon,* Pennsylvania,* South
Washington,* West Virginia, Wisco

ichigan,* Mississippi, Rhode lsI
olumbia,* Puerto Rico.
Connecticut,*
,* Kansas,
usetts,*
New York,* North

Overcrowding or

New Jersey, North Dakota.

THE NATIONAL PRISON PROJECT JOURNAL

I

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

. . .-

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

A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.
VOL. 9, NO.1, WINTER 1993/94 • ISSN'0748-2655

"j

.,)

Highlights of Most
Important Cases
EXERCISING RELIGIOUS FREEDOM
IN PRISON
The biggest recent news about prison case
law is actually about legislation. The Religious Freedom Restoration Act (RFRA) of
1993, P.L. 103-141, signed by President
Clinton in November 1993, overrules two
decisions by the Supreme Court that took a
restrictive view of religious rights.
The core text of the statute prOVides:
Sec. 3. FREE EXERCISE OF RELIGION
PROTECTED
(a) IN GENERAL.-Government shall
not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.-Government may
substantially burden a person's exercise of religion only if it demonstrates
that application of the burden to the
person(1) is in furtherance of a compellinggovernmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental interest. [Emphasis supplied]
There is no question that the law applies to
prisons. The legislative history explicitly
refers to prisons, and a last-minute attempt
in the Senate to exclude prisoners from the
statute's coverage was defeated.
The statute's main target is the Supreme
Court's holding in Employment Division v.
Smith, 494 U.S. 872 (1990), that "the right
of free exercise does not relieve an individual
of the obligation to comply with a 'valid and
neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).'" 494 U.S. at 879 (citations
THE NATIONAL PRISON PROJECT JOURNAL

omitted). Many in Congress and elsewhere
viewed this sweeping statement as a significant threat to citizens' religious rights. One
federal appeals court remarked that Smith
appeared to have "cut back, possibly to
minute dimensions, the doctrine that
requires government to accommodate, at
some cost, minority religious preferences...."
Hunaja v. Murphy, 907 F.2d 46,48 (7th Cir.
1990).
Employment Division v. Smith did not
directly address prisoners' religious rights
(although Hunaja noted that Smith cut back
"the doctrine on which all the prison religion
cases are founded." !d.) Nor did Smith have
much practical effect on prison litigation.
That is because for prisoners, the damage
had already been done in O'Lone v. Estate oj
Shabazz, 482 U.S. 342 (1987), which had
held that prison religious restrictions must
be upheld as long as they are "reasonably
related to legitimate penological objectives,"
the same standard that it had applied to all
other claims of infringement of prisoners'
constitutional rights. Turner v. Safley, 482
U.S. 78, 89 (1987). Any notion of the "preferred" status of free exercise rights, or
indeed any hierarchy of importance of constitutional rights, was rejected in Turner and
O'Lone.
The RFRA explicitly states that it is intended
to overrule Employment Division v. Smith
and reinstate the compelling interest test of
Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 405 U.S. 205 (1973).
O'Lone is not mentioned in the text of the
law. However, the legislative history is clear
that Congress intended to overrule O'Lone as
well. H.Rep. No. 88, 103d Cong., 1st Sess. at
7 (1993) ("House Rep."); S.Rep. No. 111,
103d Cong., 1st Sess. at 9 (July 27, 1993)
("Senate Rep."), reprinted in 1993
U.S.C.C.A.N. 1892, 1898-99.

The Mythical Golden Age
Ostensibly, the RFRA enlarges prisoners'
free exercise rights by turning the clock
back. The legislative history indicates that the
statute is intended "to restore the traditional
protection afforded to prisoners to observe

their religions which was weakened by the
decision in OiLone v. Estate ojShabazz,"
Senate Rep. 103-111 at 9, and that before
O'Lone, "courts evaluated free exercise challenges by prisoners under the compelling
governmental interest test." House Rep. at 7.
Behind these blithe pronouncements lurks
a much messier reality: Before O'Lone, only a
few courts had adopted the "compelling
interest test" in prison cases. Kennedy v.
Meachum, 540 F.2d 1057, 1061 (10th Cir.
1976) ("interests of the highest order");
Barnett v. Rodgers, 410 F.2d 995, 1003
(D.C.Cir. 1969); Walker v. Blackwell, 411
F.2d 23, 24-25 (5th Cir. 1969). Others
required only a showing of an interest that
was "important," Shabazz v. O'Lone, 782
F.2d 416,420 (3rd Cir. 1985) (en bane),
rev'd sub nom. Estate ojO'Lone v. Shabazz,
482 U.S. 342 (1987); Madyun v. Franzen,
704 F.2d 954, 959-60 (7th Cir.), cert.
denied, 464 U.S. 996 (1983), "legitimate,"
Walker v. Mintzes, 771 F.2d 920,929 (6th
Cir. 1985), or "substantial," Shabazzv.
Barnauskas, 790 F.2d 1536, 1539 (1Ith
Cir.) , cert. denied, 479 U.S. 1011 (1986); or
they simply accepted prison security and
order as justifying religious restrictions without specifying the constitutional rule or standard that they applied. Jones v. Bradley, 590
F.2d 294,296 (9th Cir. 1979).
Moreover, "compelling interest" is only
half of the RFRA's standard. The statute also
requires that restrictions on religious exercise be narrowly tailored to constitute the
"least restrictive means" of serving a compelling interest. Only one of the prison compelling interest cases, Barnett v. Rodgers,
explicitly adopted a least restrictive means
test. The others did not state the reqUired
degree of tailoring, Walker v. Blackwell, 411
F.2d at 24-25, or stated it ambiguously.
Kennedy v. Meachum, 540 F.2d at 1061
(holding that inmates' free exercise rights
can be overcome by "only those interests of
the highest order and those not otherwise
served... ) (emphasis supplied), quoting
Wisconsin v. Yoder, 406 U.S. 205, 215
(1973) .
Courts that did not require a compelling
WINTER 1993/94

13

interest presented an equally mixed bag with
respect to their means/ends requirements.
Some adopted a variation of the least restrictive means standard. See Shabazz v. O'Lone,
782 F.2d at 420 (state must show that "no
reasonable method exists by which [prisoners'] religious rights can be accommodated
without creating bona fide security problems"); Native American Council ofTribes
v. Solem, 691 F.2d 382, 385 (8th Cir. 1982)
(restriction is unconstitutional if it is "more
restrictive than necessary to meet the penal
system's objectives"); Shabazz v. Barnauskas, 790 F.2d at 1539 (restrictions "must be
no greater than necessary to protect the governmental interest involved"); Barrett v.
Virginia, 789 F.2d 498,502 (4th Cir. 1982)
(restrictions must be "no broader than is
necessary to the protection of those interests"); see also Abdul Wali v. Coughlin, 754
F.2d 1015, 1033 (2nd Cir. 1985). Others did
not. Dettmer v. Landon, 799 F.2d 929, 933
(4th Cir. 1986) (rejecting least restrictive
means), cert. denied, 483 U.S. 1007 (1987);
Madyun v. Franzen, 704 F.2d at 959-60
(reasonable adaptation reqUired); Walker v.
Mintzes, 771 F.2d at 930 (restrictions must
be "reasonably related to prison security");
Capoeman v. Reed, 754 F.2d 1512, 1516
(9th Cir. 1985) (declining to read least restrictive means into prior circuit authority).
To complicate matters further, as the 1980s
progressed, courts frequently framed prisoners' free exercise claims in the terms emphasized by the Supreme Court in its prison
jurisprudence, such as the necessity for "deference" to prison officials' judgments and the
presence of an "exaggerated response" to
their concerns, and not in the language of
degree of justification and the relation of ends
and means that has characterized "free world"
First Amendment jurisprudence. See, e.g.,
Fromer v. Scully, 817 F.2d 227, 230 (2nd Cir.
1987) (relying on deference holdings to limit
important interestlleast restrictive means standard to religious activities not deemed "presumptively dang~rous"); Tisdale v. Dobbs,
807 F.2d 734, 739 n. 3 (8th Cir. 1986)
(declining to reach least restrictive means
question without evidence of an exaggerated
response). In addition, as the judicial attitude
toward prisoners' claims became more hostile, courts sometimes ruled with little reference (or little honest reference) to their own
prior precedents. See, e.g., Dettmer v.
Landon, 799 F.2d at 933-34 (rejecting least
restrictive means without reference to earlier
decisions embracing it); Udey v. Kastner, 805
F.2d 1218, 1221 (5th Cir. 1986) (upholding
restriction based on "a problem that the state
has a good reason to avoid" and "might create
undue cost and administrative burdens"; no
reference to prior compelling interest cases).
Thus, there is no substantial body of case
14

WINTER 1993/94

law that can be identified as applying both the
compellinginterest and least restrictive
means standards. Analytically, the "traditional
protection" enjoyed by prisoners before
O'Lone is mythical.

Applying the RFRA Standard
One approach to this problem is to employ ,c
what might be called analytical brute force, asfollows. The RFRA adopts the compelling
interestlleast restrictive means test. That te~t
is the constitutional standard most favorable
to citizens challenging restrictions on their"
rights by government. Therefore, any result
favorable to a prisoner plaintiff that was
reached under any standard would, a
fortiori, have been reached under the compelling/least restrictive standard. Therefore,
the body of pre-O'Lone case law to which
courts should look is the body of cases in
which the prisoner won.
Stated so globally, this argument probably
seems unsubtle at best and overreaching at
worst. In a less sweeping form, it may be useful in persuading a court to resurrect or give
weight to a favorable older decision in a particular jurisdiction. The clearest case for such
an argument is presented when a court relying on O'Lone has explicitly overruled earlier
precedent. See, e.g., Fromer v. Scully, 817
F.2d 227 (2nd Cir. 1987), overruled by
Fromer v. Scully, 874 F.2d at 73-74 (striking
down prohibition on beards longer than one
inch as applied to an Orthodox Jew); Teterud
v. Burns, 522 F.2d 357 (8th Cir. 1975), overruled by Iron Eyes v. Henry, 907 F.2d at 813
(striking down prohibition on long hair as
applied to a Native American).
On many issues and in many jurisdictions,
there will be no such favorable precedent to
resurrect. It will therefore be necessary to
build a new jurisprudence of prisoners' free
exercise claims. From a prison litigator's
standpoint, the starting point in developing an
approach to the RFRA is to identify the ways
in which it differs from the O'Lone standard.
They are substantial.
Under O'Lone, a governmental interest
need only be "legitimate" to justify restricting
religious rights; under the RFRA, the interest
must be "compelling." In most prison cases,
this difference will not count for much. The
legislative history clearly contemplates that
interests in security and order will be treated
as compelling. "Ensuring the safety and
orderliness of penological institutions, as well
as maintaining discipline in our armed
forces, have been recognized as governmental
interests of the highest order." House Rep. at
8; see also Cong.Rec. H8714 (dailyed.,
November 3, 1993) (remarks of Rep. Hyde)
("maintaining security, discipline and order"
in prison "should qualify as a compelling
interest under this statutory standard"). In

any case it is hard to imagine that a court
would conclude otherwise. But in cases
chiefly involVing issues of money-for example, most prison diet cases-the new statute
may shift the advantage significantly toward
plaintiffs. The same may be true where the
issue is one of administrative convenience.
For this reason, it is certain that prison officials will attempt to manufacture security
rationales for practices that are in reality
based on financial or administrative factors,
and that disputes over this question will play
a major role in Rli'RA litigation.
Even in cases where a compelling interest
is at stake, the &RA requires prison officials
to employ the ieast restrictive means in burdening religious rights. How this standard
will be applied in prison cases is unclear. The
legislative history expresses an expectation
that "the courts will continue the tradition of
giving due deference to the experience and
expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good order, security and
discipline, consistent with consideration of
costs and limited resources." Senate Rep. at
10, citing Procunier v. Martinez, 406 U.S.
396,404-05 (1974).
This language is hard to square with the
terms of the statute itself. After all, the
Turner/O'Lone reasonableness test itself is a
manifestation of this "tradition" of deference.
In particular, Turner admonished courts to
consider
the impact accommodation ofthe
asserted constitutional right will
have on guards and other inmates,
and on the allocation ofprison
resources generally.. .. When accommodation ofan asserted right will
have a significant "ripple effect" on
fellow inmates or on prison staff
courts should be particularly deferential to the informed discretion of
prison officials....
482 U.S. at 90.
To some degree, the resolution of this
apparent conflict may be found in another
clause of the statute, which states that government must "demonstrate" that burdens on
religious exercise meet the compelling interestlleast restrictive means requirements. This
is a substantial change from former law,
which generally places the burden of proof
and persuasion on the plaintiff. O'Lone, 482
U.S. at 350. In particular, it relieves the burden on plaintiffs to "point to an alternative
that fully accommodates the prisoner's rights
at de minimis cost to valid penological interests" in order to prevail. Turner v. Safley,
482 U.S. at 91.
The importance of this last point cannot be
overstated. The determination of what alternatives exist within an administrative strucTHE NATIONAL PRISON PROJECT JOURNAL

I

ture operated by prison officials is a matter
that is most easily addressed by prison officials' and the placement of this burden on
plaintiffs was one of the most strikingly lopsided aspects of the Turner/O'Lone standard.
But exactly what it is that government must
"demonstrate" remains unclear. Amajor
bone of contention in litigation under Turner
and O'Lone is the extent to which prison officials may restrict rights in the service of security or other concerns that are purely hypothetical or anticipatory. Many courts have
granted prison officials such latitude in this
respect that questions of burden of proof
become almost irrelevant. For example, in
Smith v. Delo, 995 F.2d 827 (8th Cir. 1993),
the court upheld the removal of correspondence to the media and the clergy from the
"privileged" category of outgoing mail that is
not read by prison staff. It observed that it
was not "terribly important" that there was no
evidence of transmission of escape plans,
contraband, threats, or evidence of illegal
activity in mail to the clergy or media.
"[P]rison officials do not need to wait for
problems to occur before addressing them;
prison officials are entitled to act preemptively in order to prevent problems from occurring in the first place." Id. at 831.
By contrast, the House committee report
states that under the RFRA, "Seemingly reasonable regulations based upon speculation,
exaggerated fears of [sic: read 'or'] thoughtless policies cannot stand." House Rep. at 8;
accord, Senate Rep. at 10 ("inadequately formulated prison regulations and policies
grounded on mere speculation, exaggerated
fears, or post-hoc rationalizations will not
suffice to meet the act's requirements"). In
light of this language, it is hard to avoid the
conclusion that prison officials will be held to
a higher and more fact-based standard of jUstification for the security rationales that they
invoke when restricting free exercise rights.
Finally, one particularly troublesome element of the Turner/O'Lone standard appears
to have been ~onclusively rejected. That is the
analysis of whether a restriction leaves open
"alternative means of exercising the right that
remain open to prison inmates." Turner, 482
U.S. at 90. Applying this analysis, the Supreme
Court in O'Lone upheld the exclusion of certain inmates from Muslim Jumu'ah services in
part because they were able to pray together
during nonworking hours, to observe Ramadan, and to follow Muslim dietary restrictions. 482 U.S. at 351-52.
This line of argument leads straight to
reductio ad absurdum. Prison officials could
well argue that as long as all inmates are
allowed to pray silently while locked in their
cells, the existence of this "alternative" absolves them of any further obligation to accommodate prisoners' religious rights. No
THE NATIONAL PRISON PROJECT JOURNAL

court has accepted such an extreme argument
(perhaps because no prison system has
pressed it), but there is no principled stopping place once the argument based on alternatives is accepted.
The RFRA disposes of the alternatives
approach by requiring that any "substantial
burden" be justified under the compelling
interest/least restrictive means test. Nothing:>
in the statute authorizes officials to justify a
restrictive practice on the ground that otqer
kinds of religious observance are permitt~d,

Litigating under the RFRA
In addition to the more favorable legal
standard, the new statute provides several
important advantages to litigators.
Section 3(c), titled "Judicial Relief," provides, "A person whose religious exercise has
been burdened in violation of this section
may assert that violation as a claim or defense
in a judicial proceeding and obtain appropriate relief against a government." Thus, the
statute explicitly creates a cause of action,
and not simply a statutory right enforceable
through 42 U.S.C. §1983. In any prison religious freedom case, the RFRA should be
explicitly pled as a separate ground for relief
from §1983-indeed, as the primary ground
for relief.
Relief is available against a "government,"
which is defined as "a branch, department,
agency, instrumentality, and official (or other
person acting under color of law) of the
United States, a State, or a subdivision of a
State." Thus, the RFRA is an exception to the
Eleventh Amendment's restrictions on federal
court suits against states and their agencies.
There is no suggestion in the statute's language or in the legislative history supporting
any distinction between restrictions imposed
as a matter of government policy and those
imposed at a lower level of officialdom. Thus,
the showing of municipal policy required by
Monell v. Department ofSocial Services,
436 U.S. 658 (1978), and its progeny, to
obtain relief against municipal governments
under §1983, appears to be unnecessary
under the RFRA.
The statute provides for "appropriate relief
against a government" without further explanation. Nor is there any elaboration on this
point in the legislative history. However, the
Supreme Court has stated that there is a presumption that a federal statute creating a private cause of action permits the recovery of
damages. Franklin v. Gwinnett County
Public Schools, 503 U.S. _, 112 S.Ct. 1028,
1034-35 (1992). The primary defense to
damage liability under §1983 is qualified
immunity, which bars the award of damages
against state actors unless they violate rights
that are "clearly established." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). That

defense is available only to persons sued in
their individual capacities, and not to governmental units, who will be the most common
RFRA defendants. Owens v. City ofIndependence, 445 U.S. 622, 100 S.Ct. 1398 (1980).
Attorneys' fees, too, are available to the prevailing party in an RFRA suit on the same
terms as under other civil rights statutes.
Putting these factors together, it would
appear, for example, that if a state or city
correctional officer bars a prisoner from religious services for a reason that is short of
compelling, thl\prisoner can recover an
award of damllg'es from the state or city
agency that employs the officer, as well as an
award of atto'rneys' fees, regardless of
whether the officer acted pursuant to policy.
This is true even in cases where the prisoner
would have lost under the O'Lone standard
and where there was no prior ruling that the
religious restriction at issue was unconstitutional.
In light of some judges' hostility toward
prisoners' claims, some lower federal courts
may invent limitations on prisoners' remedies
under the RFRA by interpreting the phrase
"appropriate relief" in restrictive ways,
although there is no warrant in either the
statutory language or the legislative history ,
for doing so. Such efforts should be resisted
in trial courts and challenged in appellate
courts, keeping in mind that Congress has
made no distinction between prisoners and
other citizens with regard to the remedies
provided by the RFRA. The body of remedial
law that develops in nonprison cases under
the RFRA should be applicable without exception to prisoners' claims as well.

Other Cases
Worth Noting
U.S. COURTS OF APPEALS

Cruel and Unusual PunishmentProof of Harm
Strickler v. Waters, 989 F.2d 1375 (4th
Cir. 1993), cert. denied, 114 S. Ct. 393
(1993). This court previously held in Lopez
v. Robinson that to establish an Eighth
Amendment violation, '''there must be evidence of a serious medical and emotional
deterioration' attributable to the challenged
condition." Now, it "reaffirm[s]" this "essential holding," rephrasing it to require "evidence of a serious or significant physical or
emotional injUry resulting from the challenged conditions." (1381) At 1381 n.6:
Atfirst blush, the standard that we
embrace today might be thought to
WINTER 1993/94

15

exclude instances where pain was
suffered but no enduring injury
resulted. We are satisfied, however,
that in the unusual circumstance
where such pain is sufficiently serious to rise to the level ofa constitutional violation, it will either itself
constitute a serious physical injury
or will result in an emotional injury
that would be cognizable under our
standard.... [Citations omitted]
Crowding (382): The plaintiff's complaints about double-bunking do not meet the
serious injury standard.
Law Libraries and Law Books 038387): The plaintiff's claim of inadequate law
library access is rejected in view of his failure
to establish actual injury. The court rejects
the view that deprivation of the "core
requirements" of court access violate the
Constitution independent of any showing of
injury. The plaintiff's allegation that he would
have filed his habeas corpus petition earlier
and would have been released earlier is
termed "vague and conclusory."
Privacy (1387-88): "... [Wlhen not reasonably necessary, exposure of a prisoner's
genitals to members of the opposite sex violates his constitutional rights...." However,
the Constitution was not violated by jail practices, in which female officers only viewed
male inmates from the waist up in a stripsearch area and in which efforts were made
to have them patrol cellblocks at regular and
therefore predictable times.

Use of ForcelMunicipalities
Vineyard v. County ofMurray, Ga., 990
F.2d 1207 (11th Cir. 1993). The plaintiff was
arrested and taken to a hospital for previously
sustained injuries. The officers thought he
might have overdosed on drugs and along
with hospital personnel tried to force him to
drink a substance that would make him vomit.
The officers told the hospital staff to leave and
that he would cooperate when they returned.
They then beat him repeatedly in the head and
chest. He sustained a broken jaw among other
injuries. Ajury awarded $115,000 in compensatory damages and $60,000 and $20,000
respectively in punitive damages against the
officer who administered most of the blows
and the officer who struck a few blows and
did not stop the other officer.
The record supported a verdict against the
county. It showed that the Sheriff's Department gave whoever answered the telephone
discretion about the initial handling of complaints and that no log of complaints was
maintained. In this case, the officers who
were the object of the complaint were sent to
take statements from the witnesses. No one
completed an arrest report on the incident.
The Department had no policies and proce16

WINTER 1993/94

dures manual. This evidence established a
policy of deliberate indifference. Expert testimony supported a finding that the events
would not have happened if officers had
known that they must report all confrontations, that citizens could report complaints,
and that complaints would be investigated.

Denial of Ordered CarelPersonal
Involvement and Supervisory Liability
Durmer v. O'Carroll, 991 F.2d 64 (3rd' "
Cir. 1993). The plaintiff entered prison witb a
back injury and the sequelae of two strokes',
for which his doctor had prescribed extensive
physical therapy. He did not receive the prescribed therapy, but the physician in charge
at the prison prOVided some treatment and
sent him to some specialists.
Summary judgment for the defendants was
inappropriate. The plaintiff received no physical therapy for seven months before he saw
the defendant physician, although time is of
the essence if physical therapy is to be effective. Then the defendant sent him to a neurologist rather than beginning physical therapy.
The neurologist recommended physical therapy, but the defendant ignored the recommendation for four-and-a-half months. Atrier
of fact could find that the defendant's proffered reasons were a pretext and that he
avoided physical therapy because it would
have placed a considerable burden and
expense on the prison system, Delay of treatment for nonmedical reasons can constitute
deliberate indifference (68-69).
Medical Care/QUalified Immunity
Foulks v. Cole County, Mo., 991 F.2d 454
(8th Cir. 1993). The plaintiff was taken to an
emergency room after being assaulted, found
to have an outstanding warrant from another
state, and turned over to the police with a
head injury instruction sheet. He received no
medical treatment despite the fact that he was
throwing up blood and that his mother
noticed that his speech was slurred and
requested, unsuccessfully, to bring a doctor
in at her own expense. The defendants are
not entitled to qualified immunity.
CrowdingIModification ofJudgments
Heath v. DeCourcy, 992 F.2d 630 (6th Cir.
1993). The district court in earlier proceedings
had sua sponte added a "sunset provision" to a
consent judgment, which the appeals court held
in an unreported opinion should not have been
done (n.l). Further proceedings resulted in a
new consent decree that included population
caps, and more enforcement litigation resulted.
Subsequently, the court found the defendants in
substantial compliance and ended supervision
over everything but the population caps. The
defendants then moved to increase the population caps by increasing double-ceIling and the

district court granted the motion.
At 633:
A district court must determine
whether and when to terminate
supervision orjurisdiction over a
consent decree by considering the
specific terms ofthe consent
decree.. .. Severalfactors to be considered include: (1) any specific
terms providingfor continued
supervision andjurisdiction over the
consent decree; (2) the consent
decree's underlying goals; (3)
whether ther.'!Jhas been compliance
with priorr;i/urt orders; (4) whether
defendants made a goodfaith effort
to comply; (5) the length oftime the
consent decree has been in effect;
and (6) the continuing efficacy of
the consent decree's enforcement....
Court supervision is often expected
to continue for severalyears, in
order to assure compliance with the
relevant decrees.. .. When the defendants are shown to be in compliance
with its terms and the objectives of
the consent decree have been
achieved, the district court'sjurisdiction over the case may be terminated.
The terms of the decree included specific
requirements for terminating supervision or
jurisdiction, including findings of compliance, and specified a twenty-year period for
certain issues. The court abused its discretion in terminating supervision and jurisdiction inconsistently with these terms.
Modification of consent decrees requires
a complete hearing and findings of fact. In
institutional litigation, the lower court must
identify '''a defect or deficiency in the original decree which impedes achieving its goal,
either because experience has proven it less
effective, disadvantageous, or because circumstances and conditions have changed
which warrant fine-tuning the decree.'
[Citation omittedl The modification must further the purpose of the consent decree, without upsetting the basic agreement between
the parties." (634)
The district court should not have relied on
unverified statements in the record, unauthenticated materials and counsel's argument
to support modification of the judgment. The
district court did not fully consider the "Rufo
factors." At 635:
., ,First, neither defendants nor
the district court identified a "significant change in circumstances"
warranting revision ofthe consent
decree .... In fact, overcrowding had
been an ongoingproblem over severalyears, resulting in the premature
release ofinmates. Second, the disTHE NATIONAL PRISON PROJECT JOURNAL

trict court did not inquire into the
goodfaith ofdefendants' settlement
intentions or anticipation of
changes in conditions that would
make the consent decree onerous
and unworkable.... Third, the district courtfailed to determine if the
proposed changes were "suitably tailored to the changed circumstances. "
More importantly, however, the district court should have required
defendants to present evidence in
support oftheir position to allow
double-ceiling and to increase the
inmate population, with an opportunity then for the plaintiffs to contradict the evidence. In making our ruling, we are not unmindful ofthe
burden on the docket that a case of
this magnitude makes.... However, it
also affects the constitutional rights
ofcitizens, so the courts must be
ever vigilant to preclude a termination or modification ofproceedings
until everyone affected has an
opportunity to be heard.

Use of Force/Qualified Immunity
Hill v. Shelander, 992 F.2d 714 (7th Cir.
1993). The plaintiff alleged that an officer
grabbed his hair and shoulder, pulled him
out of his cell, slammed his head and back
against the bars, hit him in the face, and
kicked him in the groin.
Although qualified immunity doctrine
"eschews an inquiry into subjective intent, in
some cases, proof of the defendant's mental
state is an element of the constitutional violation." (717) An assertion of improper motivation must be accompanied by some specific
factual support. The facts alleged-an unprovoked assault, and continuing abuse even
though the plaintiff did not fight back--support an inference of malicious intent. Since
the qualified immunity question turns on a
disputed issue of fact, the court lacks jurisdiction over.the appeal.
The defendant argued that there was no
clearly established right at issue because the
Eighth Amendment force standard is a balancing test, "meaning that no generalizable
parameters exist." (718) However, it is well
established that beating a prisoner with malicious intent violates the Eighth Amendment.

Disabled/Cruel and Unusual
Punishment-Proof of Harm
Hicks v. Frey, 992 F.2d 1450 (6th Cir.
1993). The plaintiff was rendered paraplegic
in an escape attempt. Initially he was placed
in a converted cell designed for his needs; he
was later moved to an isolation cell as punishment for the escape attempt. He presented
evidence that he was deprived of drinking
THE NATIONAL PRISON PROJECT JOURNAL

and bathing water, proper physical therapy,
and proper medical treatment, not turned
regularly, harassed in various ways, and
allowed to lie in his feces and vomit for
hours. Ajury returned verdicts against "the
officer in charge of the jail" for $10,000,
against the nurse in charge of medical ser- ~'
vices for $1,000, and against the corporatioft
that provided medical services for $60,00(}:
The verdict against the officer in charge of
the jail is supported by evidence that he,',
received daily communications about the
plaintiff and his problems. At 1457: "In the
absence of inquiry or at least some show of
concern about Hicks' condition and the
problems with that condition, the jUry reasonably could have found that Frey at least
acqUiesced in the mistreatment of Hicks that
the jury found occurred." In addition, he
knew that the plaintiff was completely dependent on a wheelchair and that his cell was too
small for a wheelchair, and that he had no
access to shower facilities.
The verdict against the nurse was supported by evidence that she directly supervised
the nurses who gave daily care and that she
knew of the plaintiff's complaints. The jury
could have found that she displayed deliberate indifference "both by failing to address
[the complaints] herself and by implicitly
authorizing, approving, or knowingly acquiescing in unconstitutional conduct of others
over whom she had supervisory authority."
(1457) The fact that witnesses could not
identify by name some of the subordinates in
question was irrelevant.

Protection from Inmate Assault
LaMarca v. Turner, 995 F.2d 1526 (1 lth
Cir. 1993). The district court entered an
injunction benefiting the class and awarded
damages to some of the named plaintiffs
based on evidence of a pervasive risk of sexual assault at a Florida prison.
The record "painted a dark picture of life
at GC1; a picture that would be apparent to
any knowledgeable observer, and certainly to
an official in Turner's position. An inference
can be drawn from this evidence that [the
warden] did know that GC1 failed to provide
inmates with reasonable protection from violence." (1536-37) The court distinguishes
Rizzo v. Goode by noting that the warden's
personal involvement was not based solely on
statistical patterns. At 1536 n.21: "Moreover,
[the warden's] supervisory role and the insular character of prison communities provided
strong support for the court's conclUSion that
[the warden] must have known of these conditions."
Despite the warden's efforts to ameliorate
the conditions and his budgetary constraints,
his deliberate indifference was supported by
evidence that he failed to ensure that his sub-

ordinates followed the policies he established, and that he failed to take specific,
low-cost actions that were available to him
and that his successors successfully undertook. His defaults included improper and
inadequate staff training; a staff out of control
who did not report rapes, assaults, and illegal
activities; failure to station officers to patrol
the dormitories; permitting inmates to
obscure vision by hanging sheets; the lack of
a standard procedure for investigating allegations of rape; his failure to control inmate
movement, peilnitting aggressive inmates to
move casuallY"Within the dormitories; and the
failure to tranSfer inmates who were known
or should have been known as assailants.
The causation reqUirement of § 1983 was
met by evidence of five conditions that were
under the warden's control and created an
unconstitutional risk of violence: a prevalence of weapons, the lack of adequate
patrols, the lack of adequate reporting procedures for rapes and assaults, the presence of
"obvious and rampant indicia of homosexual
activities," and a lack of supervision of officers. The rapes of the plaintiffs flowed directly from these lawless conditions. (1539)
However, the district court should have identified the specific potential solutions that the
defendant actually or recklessly disregarded
and determined whether they would in fact
have eliminated the "infirm" conditions.

Procedural Due ProcessAdministrative Segregation/Qualified
ImmunitylPersonal Involvement and
Supervisory Liability
Hall v. Lombardi, 996 F.2d 954 (8th Cir.
1993). The plaintiff was placed in the Special
Management Facility, a "behavior modification and administrative segregation unit." The
Classification Committee repeatedly recommended that he be released to general population protective custody, but he was not
released.
The defendants were not entitled to qualified immunity. Although the relevant regulations had not preViously been held to establish a liberty interest, such a holding was predictable since there are many Supreme Court
and Eighth Circuit cases supporting the welldeveloped legal principles governing liberty
interests. At 959: "Any reasonable official
would understand that once Hall obtained
final approval for release, he had a legitimate
expectation of being released in a reasonable
amount of time, and that failing to meet that
expectation for such a long time violated
Hall's rights."
At 961:
... IPJ roofofactual knowledge is
not an absolute prerequisite for
imposing supervisory liability.. .. We
have "consistently held that reckless
WINTER 1993/94

17

disregard on the part ofa supervisor
will suffice to impose liability. "
[Citations omitted]
Prison regulations required the reporting
to the warden of the names of all inmates
assigned to the Special Management Facility,
the reason for the assignment, and the length
of time assigned; the warden was reqUired
personally to review assignments and retentions of more than one year and report them
to the commissioner. "Thus, their compliance or noncompliance with these regulations may establish actual knowledge or reckless disregard."
DIS1RICT COURTS

Law Libraries and Law Books/Verbal
Abuse.
Martin v. Ezeagu, 816 F.Supp. 20 (D.D.C.
1993). An allegation that the law librarian
engaged in an "ongoing pattern of harassment and arbitrary exclusion" of the plaintiff
from the law library stated a claim for denial
of court access. The right "entails not only
freedom to file pleadings but also freedom to
employ, without retaliation or harassment,
those accessories without which legal claims
cannot be effectively asserted." (24, citing
Ruiz v. Estelle, 679 F.2d 1115, 1153 (5th
Cir. 1982), cert. denied, 460 U.S 1042
(1983) (emphasis supplied». The requirement of prejudice does not apply because the
plaintiff "alleges not an isolated episode, but
an ongoing pattern of denial of access." (24)
Allegations of "an extensive period of
harassment, including racial epithets and
profanity," implicating a constitutional right,
stated a claim for intentional infliction of
emotional distress. This tort requires" 'extreme and outrageous conduct' which 'intentionally or recklessly causes severe distress'
and is 'so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency.'" (26, citingjackson
v. District ofColumbia, 412 A.2d 948, 95657 (D.C.App. 1980).)

.

Medical Care/AIDS
Haitian Centers Council, Inc. v. Sale, 817
F.Supp. 336 (E.D.N.Y. 1993). The government
conceded that adequate medical care was not
being and could not be provided for
"screened-in" Haitians held on Guantanamo
with diminished T-cell counts and that its own
doctors had recommended that these persons
be evacuated to receive appropriate care. In
the exercise of its "inherent power to protect
the parties appearing before it, to preserve
the integrity of an action, to maintain its ability to render a final judgment, and to insure
the administration of justice," not to mention
"to prevent any loss of life or the diminution
of the plaintiff class" during the litigation, the
18

JULY 1993

court orders that the defendants within ten
days either prOVide the level of care recommended by its own doctors or evacuate the
affected class members to a place (except
Haiti) where such medical care is available.

take them off or how to ensure the detainee's
welfare while they were in use. Accordingly,
the county is liable for $5,000 in compensatory damages (presumably the same award
that the defendants are individually responsible for).

Hygiene/Qualified Immunity
Matthews v. Peters, 818 F.Supp. 224
(N.D.Ill. 1993). The plaintiff's allegation thathe was denied hot water in his cell during 11
months in segregation despite his repeated,
complaints stated an Eighth Amendment
claim. At 227: "What Matthews presents here
is not a case of the limited and short-term
absence of some amenity.... Instead, when
Matthews' allegations are taken at face value
with reasonably favorable inferences...what
the case involves is a long-protracted deprivation that was deliberately imposed on
someone confined in segregation and that
made it impossible for him to bathe during
extended periods of time." The defendants
were not entitled to qualified immunity under
Wilson v. Seiter.

Restraints
jones v. Thompson, 818 F.Supp. 1263
(S.D.Ind. 1993). The plaintiff tried to hang
himself in jail. He was placed in "three-way
restraints" (the court uses the term "hogtied") and left in a detox cell which had nothing in it but an 18-inch bench which he could
not mount in his restraints. He was stripped
to the waist. He could not stand or sit, but
could only squat. He could not use the toilet;
instead he used the drain in the floor while
he was lying down. He was not permitted to
shower or change clothes. He was subjected
to these conditions for about a week. He
received no medical evaluation for five days.
This treatment was not reasonably related
to a legitimate goal or interest and was therefore punishment. At 1268: "This was nothing
short of flagrant governmental abuse which is
decried by the Due Process Clause."
Punitive damages of $2,000 are assessed
against the captain, "whose authority, presence and knowledge of the continuing retention of Jones day after day without a systematic or humane response to his condition
demonstrates her complete callousness to
that condition." (1268) The court notes in
connection with the deterrent purpose of this
award that the hog-tying procedure is still in
use in the jail.
The plaintiff's treatment was caused by two
county policymakers, the captain and the
sheriff, and by "the custom and practice to
apply restraints without medical consultation
and keep them on for extended and undocumented periods without review. The practice
may be infrequently invoked, but is nonetheless barbaric." (1269) Deputies were trained
on how to apply restraints but not on when to

Privacy
Arry v. Robinson, 819 F.Supp. 478 (D.Md.
1992). In a newly constructed prison, the toilets, showers, and urinals are located at one
end of a dormitory and screened from view
only by a wall ab~t four feet high containing
open entryways..~ison officials declined
requests to prQ~de shower curtains or other
visual barriers. Two-hour periods were
scheduled in morning and evening when
opposite sex officers would not be present.
At 487:
The combined effect ofthe open
dormitory and the open bathroom
area at the new jPRU is to put
inmates on display virtually 24
hours a day no matter how personal
an activity they may be involved in.
A shower schedule that allows female
guards unrestricted access to the
dormitory from 8:30 a.m. to 4:30
p. m. means there is no opportunity
for an inmate to change clothes during that time period or use the toilet
without the likelihood ofbeing seen
by a correctional officer ofthe opposite sex. Basic human dignity requires some minimalprotection of
privacy, at least from the opposite
sex andparticularly where no security concerns have been advanced to
justify the design chosen.
Under the Turner standard, these conditions are unconstitutional. The state provided
no reason for them; the predecessor institution had an enclosed bathroom with doors
and shower curtains, and no evidence was
presented that security problems resulted.
There is no alternative way for prisoners to
exercise their right to privacy in the bathroom. Since there is no record of security
problems, it is unlikely that there will be an
effect on guards' performance of their duties.
The impact of change on prison resources
would be minimal, since shower curtains or
semi-opaque plastic sliding windows could
be installed "with a de minimis cost to
prison security and relatively little cost in
terms of dollars." (487)

Law Libraries and Law Books/
Non-English Languages
Acevedo v. Forcinito, 820 F.Supp. 856
(D.N.]. 1993). At 888:
... This court agrees that for prisoners
who cannot read or understand English,
the constitutional right ofaccess to the
THE NATIONAL PRISON PROJECT JOURNAL

courts cannot be determined solely by
the number ofvolumes in, or size of, a
law library. "

* * *
... It would be wholly contrary to the
spirit and purpose ofBounds to conclude that the provision ofa law library
afforded [] protection for prisoners
who cannot understand the language in
which the books are written.... Clearly,
Bounds requires some form ofassistance to those for whom even the most
comprehensive law library is ofno
avail."
The fact that the plaintiff filed a complaint
and the magistrate denied the appointment
of counsel do not show that the plaintiff had
adequate access to court. If this argument
were accepted, courts could never reach the
merits of a court access claim.
Judicial Disengagement
Grubbs v. Bradley, 821 F.Supp. 496
(M.D.Tenn. 1993). The court finds that the
defendants have cured the constitutional
violations previously found in the state
prison system in the areas of housing conditions, sanitation, food service, personal
safety, exercise for segregation inmates, and
classification.
With respect to health care, the constitutional violation is found to have been mostly
remedied. The court cites specific deficien-

THE NATIONAL PRISON PROJECT JOURNAL

cies that have been remedied (499-500),
including the use of health care staff to oversee security, housing inmates in the medical
facility who do not meet the admissions criteria, the lack of 24-hour emergency coverage, and the use of inmates to deliver mede
ical services. There remains one "glaring :t
deficiency," the absence of a quality assuF:';
ance plan, which the court views as "indis~
pensable and not unduly intrusive in reJ,Iledying the systemic deficiency." (500) The;:
court retains jurisdiction on this issue,:,
accepts the defendants' plan, and requires a
one-year period of self-monitoring and
reporting with reports furnished to plaintiffs'
counsel.
With respect to violence, which was
caused in large part by overcrowding, the
defendants have taken sufficient action in
terms of providing new space, new parole
policies, and new sentencing legislation, and
contracting with local governments and
development of community corrections.
They have also remedied the deficiencies in
academic and vocational programs and
added inmate job programs in order to
reduce idleness. (50l)
The defendants have complied with the
requirement to close the Tennessee State
Penitentiary and to implement a computer
system, apparently for tracking inmates.
The court vacates and dissolves all outstanding remedial orders and injunctive

relief in the case except for the quality
assurance monitoring requirement and a
permanent injunction against housing
inmates in the State Penitentiary. At 503:
"... [T] he Court's extended experience with
this litigation convinces the Court that the
defendants have the commitment, operating
structure and skills necessary to continue
operating the prison system in accordance
with constitutional requirements." At 503
n.4: The court vacates all population limit
orders and declines to impose any permanent populati~n caps. "If the past, present
and future officials of the State of Tennessee
have not learned a Three Hundred Million
Dollar ($300,000,000) plus lesson in this
litigation, then further instruction is hopeless, and the solution will have to be left to
another day and another lawsuit." •

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

WINTER 1993/94

19

BLACK PRISONERS • con'tfrom pg. 2

other former Panthers at Attica were
transferred to Green Haven Correctional
Facility north of New York City. There they
met Larry White, a self-empowerment
visionary. His ideas reflected those developing among Black Americans: that they
must now seriously attend to the unfinished struggle for Black liberation, freedom, and the self-determination of all
Black people.
Self-determination-the nontraditional approach to
empowerment
Many of the activist Black and Latino
prisoners placed in Green Haven "to keep
them busy and out of trouble" were intelligent and committed to the new struggle.
They qUickly took advantage of new
prison programs that offered college
degree courses. Anumber graduated
from the masters degree program offered
by New York Theological Seminary. They
led in forming a prisoner "think tank" to
explore the nature and causes of minority
oppression and imprisonment in this
country, focusing on New York State; they
were aided by community activists and
intellectuals. Out of this mix of political
activists, prisoners, and scholars came
new analyses and innovative proposals to
address painful social problems that
many of them knew first-hand.
As soon as prison administrators caught
on to the new prisoner movement, they
qUickly dispersed the participants to other
prisons. But it was too late. Wherever they
went, similar "think tanks" were developed, with Auburn Prison, in upstate New
York, becoming the second most influential intellectual center.
During a 12-year period of research,
Green Haven prisoners looked at New
York's disproportionate incarceration of
minorities, a prison system in which 85%
of the prisoners"are African American or
Latino. They found that 75% of minority
prisoners come from only seven neighborhoods in New York City to which 95%
of them return. Most of the remaining
25% of prisoners come from the other
five major urban communities in the state.
Those findings led to the development of
what prisoners call "the Non-traditional
Approach" to crimillal and social justice.
The Approach is an "analysis of the psycho-cultural, socioeconomic, and historical patterns that affect imprisonment
rates."14 It describes the "direct relationship" between prisons and communities of
color: although located in rural areas,
prisons are still part of the dysfunctional
20

WINTER 1993/94

institutional structure of urban communities. Like schools, welfare departments,
and employment services that supposedly
serve "ghetto" communities, they are often
accomplices in the destruction of families
and individuals within these communities.
The failure of these institutions, along with
racism, produce "crime-generative" atti- ,".;
tudes among urban youth and lead to neg-;.
ative values, feelings of alienation, crime'. .
poverty, violence, drugs, and death.
'
The Non-traditional Approach forms ,"
the basis of a movement that is not only"
becoming influential among prisoners but
is also beginning to catch the serious
attention of state legislators, government
officials, prisoner advocacy groups, members of Black and Latino communities,
and even European penologists.
Although this socioeconomic perspective is not entirely new, it represents a significant change in our approach towards
prisoners and community crime-prevention efforts. It redefines the role of prisons and proposes solutions, including
effective prison programs, that occur
within a community context.
Prisons are dysfunctional. They do not
protect the community, and they still
operate in much the way they did during
the early part of the 20th century when
most prisoners were first- or second-generation European immigrants. Thus prisons, still dominated by white administrators and staff, ignore the change in prison
demographics that has taken place over
the past 25 years. Furthermore, the criminal justice system as a whole has failed to
address the criminogenic factors identified by Blacks and Latinos. "Rather than
change the socioeconomic conditions of
communities that generate crime, the system prefers to deal with individuals and
ignores the very structural circumstances
that produced their imprisonment in the
first instance."15
Determined to make prison policies
and programs more effective and relevant
to communities of color, Green Haven
prisoners under the umbrella prison
organization, the Political Action
Committee (PAC), have developed model
programs that teach prisoners individual
and civic responsibilities. One of these,
"The Resurrection Study Group," uses a
prisoner-developed curriculum in study
groups throughout the prison system to
prepare Mrican Americans and Latinos
for their return to their old neighborhoods. Once released, they are expected
to educate and organize young people
before they too get into trouble with the
criminal justice system. To prepare, prisoners are taught Mrocentric values, histo-

ry, economics, politics, and belief systems
designed to build self-esteem, enhance
self-confidence, and encourage constructive social attitudes.
PAC members and their supporters are
lobbying the state legislature for reforms
that would change the roles and responsibilities of prisoners. For example, they
have proposed legislation that would
require prisoners to train for community
service in prison and perform specific
housing, education, or crime-prevention
duties as a con4ition of parole. These and
other ideas wE;.J.;e presented at a state legislative hearin.~by Eddie Ellis, one of the
early "think-tank" members now on work
release in Harlem. Anumber of his proposals are now under serious consideration by legislators.
Eddie Ellis and other "think-tank"
members are now back in their home
communities. In Harlem they have organized a community-based agency, the
CommunityJustice Center, to carry out the
program of community involvement that
they began in prison. They work actively
to shepherd young Black and Latino youth
into constructive work that improves their
own lives and their communities. They are .
also working to empower poor neighborhoods through community-specific economic development projects and culturally enriching programs.
Larry White, one of the chief architects
of the Non-traditional Approach, is still
incarcerated in Green Haven Correctional
Facility. He is proud to see the products
of his work taking root in the community.
From Green Haven, he writes:
The Non-traditional approach to
criminal and socialjustice is really
about the relationship between social
justice and criminaljustice.... Social
justice is a measure ofhowfair and
eqUitably the system operatesfor all
the people within itsjurisdiction. The
Non-traditional approach employs a
holisticperspective in the analysis of
crime and delinquency. It holds that
at bottom criminaljustice is an
aspect ofsocialjustice. While it may
be an extreme to hold that all crime is
a result ofthe experience ofsocial
injustice, there should be no doubt
that social injustice is a crime generativefactor. Therefore the task of
criminaljustice requires not only
effort directed toward changing the
individual offender, which has been
itsprimaryfOCUS, but mobilization
and change ofthe community and its
institutions. 16
The non-traditional approach works to
empower prisoners, the prison, and comTHE NATIONAL PRISON PROJECT JOURNAL

.munities to work towards such change
together. At the outset there must be a
reassessment of the criminal justice system to determine the needs of a prison
population that is demographically different from that of an earlier period. There
must also be a reassessment of how curricula and programs can be structured to
meet those needs. At a minimum, programs need to be directly related to communities from which prisoners come and
be appropriately Afrocentric or
Latinocentric.
Led by Black and Latino prisoners, this
new response to minority oppression is
not only based on a strong commitment to
self-empowerment, but is enriched and
strengthened by an appreciation of the
long history of Black protest. The "Nontraditional Approach" promises to
become a powerful influence in prisons
and urban communities across the coun.try suffering from racism, poverty, and the
surrender of too many of their young to
the nation's ineffective prison system. •

Alice Green is the Executive Director of
the Centerfor Law &Justice, Inc., in
Albany, New York.
1 Marc Mauer, Young Black Men and the Criminal
Justice System. Washington, D.C.: The Sentencing
Project (February 1990).
2 W.E.B. DuBois, The Souls ofB/ack Folk. New
York: Bantam Books (1989).
3 Charshee C.L. McIntyre, Criminalizing ARace Free Blacks During Slavery. Queens: Kayode
Publications, Ltd. (1992).
4 Christopher Adamson, "Punishment After SlavelY:
Southern State Penal Systems, 1865-1890." Social
Problems, Vol. 30, No.5 (June 1983) (pp.555569).
5 Manning Marable, How Capitalism
Underdeveloped Black America. Boston: South End
Press (1983).
6 James B. Jacobs, New Perspective's on Prisons
and Imprisonment. Cornell University Press
(1983).
7 August Meie'1" and Elliot Rudwick, From
Plantation to Ghetto. New York: Hill and Wang
(1976).
8 Eldridge Cleaver, Soul on Ice. New York: Delta
Books (1968).
9 See note 5 above.
10 John Pallas and Bob Barber, "From Riot to
Revolution." Issues in Criminology, Vo1.7, NO.2
(Fall 1972).
11 Robert Chrisman, "Black Prisoners, White Law."
The Black Scholar. April-May (1971) (pp.44-46).
12 Angela V. Davis, If They Come in the Morning.
New York: The New American Library (1971).
13 See note 11 above
14 Attica: The Official Report ofthe New York
State Special Commission onAttica. New York:
Bantam Books (1972).
15 CommunityJustice Center. Harlem (1993).
16 Larry White, (unpublished letter to Alice Green,
July 13, 1993.)

THE NATIONAL PRISON PROJEG JOURNAL

"Dear Prison Project..."
"Dear Prison Project..."
What is discovery, and what discovery
can a prisoner do?
Dubious About Discoyery
Dear Dubious:
·0'
Discovery is a method to "discov~r;' or
find documents and relevant information
in order to present the court withtbe evidence you need to prove your case. Another purpose of discovery is to find out
your opponent's arguments and evidence.
Rules 26 through 37 of the Federal Rules
of Civil Procedure address discovery.
Before you begin the discovery process,
make a list of each issue or claim in your
case, the individual elements of each
issue, and what information or documents you will need to prove each element. Additionally, .consider what defenses the opposing party may raise, and
what information you will need to defeat
them.•Also considerusing tlIe resources
already available to you. Interview prisoners and helpful prisonemployee witnesses, have them signtheirstatements, and
have the statements notarized or swornto
according to 28 U.S.C.§1746. Determine
if your state has afreedom of infonnation
act or public records act. If so, you.can
request policy directives,regulation manuals, and other relevantinformation
tllrough the act. Use thegrievanceprocedure to request information(Le.,whyyou
have not yet received recomlUendedmedical surgery?). Also, ask friendsandfamily to write prison officials witlrsimilar
questions (I.e., why was Danieljones
transferred?). This information \vill help
focus your case, and perhaps give you an
indication of where you might find other
helpful information.
The primary devices used in the discovery process are interrogatories, requests for production of documents, and
requests for admissions.
Interrogatories are written questions
submittedtotheopposing party for an
answer. They are most useful for obtain..
ingthe names and locations of people
with information about the case and for
determining the existence and location
of documents. Requests for production
of documents allow for the inspection
and copying of documents which are in
the custody or control of the defendant
and which may be relevant to your case.
Requests for admissions ask the opposing party to admit or deny the truth of

certain facts and their admissions
become binding on the party.
Of course, each of these tools of discovery are governed by the Rules of Civil
Procedure and those rules should be
read carefully to determine the specific
requirements of each. Additionally, these
requests may be objected to by the
opposing party and therefore you should
know exactlY'~why each request or interrogatory is itPportant to your case in
order to cPllhter defendant's objections
and/or to compel their production if
defendants refuse to give you the information. If the opposing party refuses to
give you a requested item, you may have
to file a motion to compel, (Fed. R. Civ.
Pro. 37 (a» and go to court to force
them to give you the item.
Following are general tips for conducting discovery to insure that the process
runs smoothly:
(I)Be as clear as possible in describing what you are looking for. Give as
details as you can, and spell out exactly
what you want. If possible, describe the
documents in terms used by the party
fr0lllwhom you are requesting the documents(Le., Grievance Reportregarding
]une23, 1993 assault on inmate Tom
Smith). The more specific your request,
the more difficult it will be for the opposingpartytodaim they do not know what
you arelookingJor. If you think there may
beotherrelevantmaterials, but do not
know how to focus your request, make a
general requestandadd specific requests
to define the general request.
(2) Establish pliorities. Determine
what information is most importantto
our case and what informationwill be
the easiest to obtain. You may want to
conduct discovery in stages, always
remaining within the court-determined
deadlines. By requesting information in
stages you may get the easily accessible
information without having the opposing
party delay the request as a result of the
more difficult items.
(3) Be reasonable. Do not request
items just to aggravate or burden the
opposing party. Rule 26(g) of the Federal
Rules of Civil Procedure prohibits such a
practice, and allows a judge to impose
sanctions for such action. If the opposing
party asks for an extension, consider
grantingitas long as you are not in an
emergency situation and the extension
reasonable length oftime (I.e., 30

WINTER 1993/94

21

Women Unite to
Provide Education
and Support
eer education programs led by
women prisoners have revolutionized HIV/AIDS education for prisoners. Women from two of these programs
speak here about the impact their projects have had on prisoners, staff and the
outside community:

P

Shawnee AIDS Unit-

FCI-Marianna, Florida

For the last two-and-half-years, women
imprisoned at the High Security Unit in
Marianna, Florida have been working to
combat the AIDS epidemic. An informal
group began after the arrival of a woman
who had been a peer counselor at the
Washington, D.C. Jail, and has since tried to
educate to defeat widespread ignorance
and fear, and to create a supportive environment for women who are HIV positive.
In April 1993, the informal group coalesced into the Shawnee AIDS Awareness
Group, sponsored by the Psychology
Department. We held an "AIDS Fair," made
a panel for the AIDS Memorial Quilt,
became certified Red Cross AIDS instructors and raised Q.ver $3,500 for the local
area AIDS organization by holding a
walkathon. The AIDS Awareness Class, an
eight-week course offered three times a
year, is our most important ongoing project. Besides educating women about the
virus, routes of transmission, and their
rights as prisoners, the class focuses on
prevention and changing high risk behavior.
For Hispanic Heritage Month the group did
a presentation in Spanish, hoping to attract
more interest from the Latina community.
Real strides have been made since the
beginning of the project, but the group
has been unable to change the level of
medical care provided to HIV-positive
women. This is now the overriding concern, along with the children of the
22

WINTER 1993/94

thousands of AIDS orphans in
another panel. Many women
worked on pieces of the group
panels iill their living units, and the
whole pr-ison became conscious
that the/AIDS Quilt was going to be
displayed at the prison. More
women became involved and
decided to make individual panels
for family members or friends who
had died. Finally, our display dedicated two new large (12' X12')
panels, and nine small (3' X6')
panels to be added to the
Members of the Shawnee AIDS Awareness
International Quilt.
Group at FCI-Marianna. From left to right:
On August 28 and 29, 1993, the
Silvia Baraldini, Linda Oliver, Valeria Vistoli,
Quilt
was displayed at FCI-DublinSusan Rosenberg, Laura Whitehorn, Andrietta
the
first
major display organized
Britton, Linda Pea.
entirely by women-with thanks and
women and the development of an oriencredit to the facilitation and support of staff
tation packet.
sponsor Mark Lewellyn and Dr. Maisonet. In
addition to the total of three large panels,
PLACE-FCI-Dublin, California
the NAMES Project brought in 40 more panAt FCI-Dublin, a federal prison housing
els which were hung on the walls and dis1,000 women, an inmates' club is trying
played on the floor of the Recreation Barn.
to change attitudes about AIDS in prison.
Over 80 women worked as volunteers durPLACE (Pleasanton AIDS Counseling and
ing the weekend, participating in the
Education) was founded in 1991 to proUnfolding Ceremonies, providing comfort
vide AIDS education to the population
for people viewing the quilts, answering
and to give support to the women who
questions about AIDS, translating, and proare HIV positive, or who have HIV-posividing music. During the weekend at least
700 women prisoners and numerous staff
tive loved ones. We have produced a
poster in Spanish and English for display
viewed the Quilt, definitely increasing AIDS
throughout the prison, and prepared a
awareness.
questionnaire about AIDS and risky
Women in prison are very concerned
behavior to give to every prisoner. Group
with continuing to have meaningful relamembers include many women who have
tionships with our children, including
lost family members and beloved friends
educating them about AIDS. PLACE has a
booth at the annual Children's DaylFamily
to AIDS, and some women who are HIV
positive themselves. Membership is allDay, where we distribute teen-oriented litinclusive, and crosses the racial, age,
erature, show safer-sex rap videos, and
national, and sexual-preference differanswer questions. PLACE plans to continences that are so especially divisive in
ue the program by adopting the HIV ward
prison. Meetings and presentations are
at the Oakland Children's Hospital.
conducted in both English and Spanish
Women will make holiday and birthday
because Spanish is the primary language
cards, and with donated materials, will
for 40% of the women.
make blankets, clothes, and stuffed toys
This last year, a major project has been
for the children. This "adoption" process
constructing panels for the International
has already opened our hearts to the chilMemorial AIDS Quilt. Because many of us
dren and their families, and increased the
know women who have died of AIDS in
urgency we feel about educating ourselves
prison, or who suffer being HIV-positive
and our communities about AIDS. •
inside, we wanted to make a panel
remembering women prisoners who have
Jackie Walker is the Project's AIDS
died of AIDS. We wanted to remember the
information coordinator.
THE NATIONAL PRISON PROJECT JOURNAL

blications
Bibliography of Material on
---'--- Women in Prison
,

AIDS in Prisons: The Facts
_---'---_ for Inmates and Officers is

lists information on this subject
available from the National·Erison
Project and other sources
concerning health care, drug
treatment, incarcerated mothers,
juveniles, legislation, parole, the
death penalty, sex discrimination,
race and more. 35 pages. $5
prepaid from NPP.
_.--1-_

$21yr. to prisoners.

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

(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.

1990 AIDS in Prison
Bibliography lists resources
on AIDS in prison that are
available from the National Prison
Project and other sources,
including corrections policies on
AIDS, educational materials,
medical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

The National Prison Project
----'---- Statns Report lists by state

QTY. COST

TB: The Facts for Inmates
and Officers answers
commonly-asked questions about
tuberculosis (TB) in a simple
question-and-answer format.
Discusses what tuberculosis is,
how it is contracted, its symptoms, treatment and how HIV
infection affects TB. Single copies
free. Bulk orders: 100 copies/
$25.500 copies/$100.
1,000 copies/$150 prepaid.

The National Prison
Project JOURNAL, $30/yr.

a simply written educational tool
for prisoners, corrections staff,
art!! AIDS service providers. The
bqbklet 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.

those presently under court order,
or those which have pending
litigation either involving the
entire state prison system or
major institutions within the state.
Lists cases which deal with
overcrowding and/or the total
conditions of confinement. (No
jails except District of Columbia.)
Updated January 1994. $5 prepaid
from NPP.

Fill out and send with check payable to:

Name

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

Address

_

City, State, ZIP

_

THE NATIONAL PRISON PROJECT JOURNAL

_

oaOBER 1993

23

he following are major developments in the National Prison Project's litigation program since September 15, 1993. Further details of any of
the listed cases may be obtained by writing
the Project.
Farmer v. Brennan-The Supreme
Court of the United States appointed the
National Prison Project to represent the
plaintiff. Farmer, a pre-operative transsexual, was raped within days of her
transfer to U.S.P.-Terre Haute. Following
Seventh Circuit precedent, the trial court
granted defendants summary judgment
after they alleged a lack of actual knowledge of the danger to petitioner. The
judge refused to allow the plaintiff to conduct discovery to determine if defendants
should have known of the risk, and the
Seventh Circuit summarily affirmed. The
Supreme Court granted certiorari on the
plaintiff's pro se petition on October 4,
1993.
The question before the Court is what
constitutes "deliberate indifference" to a
prisoner's safety by correctional staff. We
argue that it is sufficient proof of "deliberate indifference" to show that staff knew,
or should have known, of an unreasonable risk if the risk was "obvious." The
case was argued on January 12, 1994.
Austin v. Lehman-The first phase of
the trial, involving issues of overcrowding,
lack of programs, and staff- and prisoneron-prisoner assaults began on December
6, 1993. Following the corrections phase,

T

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

the parties are scheduled to try sanitation
and physical plant issues, and then medical .
and mental health issues. The judge has "
postponed the resumption of the trial until:
March 1 to allow the parties to conduct '
negotiations towards a possible settlement.
Goldsmith v. Dean-In December
1993, after negotiations with the State of
Vermont broke down, the National Prison
Project filed a class action suit in the federal court on behalf of all Vermont prisoners. In addition to challenging the
denial of adequate medical and mental
health care, intolerable environmental
health hazards, and other conditions of
confinement under the Eighth Amendment
and the Americans with Disabilities Act,
the Complaint challenges extraordinarily
invasive behavior modification programs
on various constitutional grounds. In one
of these, the Vermont Treatment Program
for Sexual Aggressors, prisoners are subject to mandatory masturbation sessions,
to manipulation of their genitals by a
device called the penile plethysmograph,
and to other degrading and humiliating
practices.
Hadix v. Johnson-In June 1992, the
National Prison Project entered this case,
in which there is a long-standing consent
decree that comprehensively addresses
conditions of confinement at the State
Prison of Southern Michigan. During
1993, the court issued a number of
enforcement orders which the defendants
appealed to the Sixth Circuit. On October

4, 1993, the Sixth Circuit issued an order
dismissing some of the defendants'
appeals. The defendants then filed their
brief on the merits. The plaintiffs' brief
will be filed onJ~uary 30,1994. In addition, the defendl!:.Q\ts have filed an appeal
from the order ilwarding plaintiffs their
attorneys' fees. "
John A. v. Castle-The suit filed in
1990 challenged conditions of confinement at the Ferris School and Bridge
House for Delaware juveniles who have
been charged with offenses or committed
to state custody following adjudication. In
January 1994, following extensive negotiations, the parties arrived at a detailed settlement agreement addressing all major
allegations of the complaint. The court has
scheduled a hearing for March 14, 1994,
to determine whether the agreement
should be approved.
Lankford v. Racicot-Following an
investigation of conditions at the Montana
State Penitentiary located at Deer Lodge,
and the withdrawal of a prior state laWSUit,
the National Prison Project together with
local counsel filed a comprehensive lawsuit in December 1993. The suit alleges
inadequate medical, dental, and mental
health care; dangerous overcrowding,
environmental and fire safety conditions;
arbitrary classification, treatment and
good-time policies; and a degrading and
humiliating sex offender program. The
Department ofJustice has also announced
its intention to file a CRIPA lawsuit. •

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24

WINTER 1993/94

THE NATIONAL PRISON PROJECT JOURNAL