A PROJECT OF THE AMERICAN CIVIL L1,BERTIES UNION FOUNDATION, INC.
VOL. 9, NO.2, SPRING 1994 • ISSN 0748-2655
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Billing Prisonersfor Medical Care Blocks Acress
Due Process Clause.
DeShaney v. Winnebago County DSS,
489 U.S. 189, 199-200
(1989) (emphasis added).
n 1976, the Supreme Court established in Estelle v. Gamble, 429 U.S.
97 (1976), that the government has
an obligation to provide medical care for
prisoners. TWs fundamental premise has
been upheld in subsequent cases and
establishes a prison's obligation to provide
for prisoners' basic needs, wWch include
medical care and treatment.
When the State by the affirmative
exercise ofits power so restrains an
individual's liberty that it renders
him unable to care for himself, and
at the same timefails to providefor
his basic human needs-e.g., food,
clothing, shelter, medical care, and
reasonable safety-it transgresses
the substantive limits on state action
set by the Eighth Amendment and the

I

A money-saver or an obstruction to

medical care?

However, a recent and disturbing trend
in correctional health care threatens to
undermine this fundamental constitutional
principle. More and more prison officials
across the country are beginning to
charge prisoners for basic medical care.
Payment is typically exacted by two methods: first, in several states, Nevada most
notably, prisoners are charged $4 for
attending sick call. The second method is
to require prisoners to purchase all overthe-counter (OTC) medications and products at market prices. Thus, sick call
requests are simply returned to the prisoner with instructions to purchase an OTC
product without ever being seen by med-

l')
c...
u...

J
Timely access to sick call is the touchstone of a functioning prison health care system.

ical staff. While these practices may seem
like beneficial cost-saving measures
adopted by prison health care administrators, upon closer examination they interfere with access to health care services.
The policy of charging prisoners for
medical services is widely hailed by corrections officials as a cost-cutting measure
and a way to discourage those prisoners
who abuse sick call. Administrators argue
that by charging prisoners they instill a
sense of fiscal responsibility and force
prisoners to make mature choices regarding how they spend their money. They also
stress that no prisoner is denied access to
medical care because of indigency.
Instead, their account will go into a negative balance. When money is deposited
into the account it will be applied to the
charges for the medical services. No prisoner is charged for emergency care or for
services initiated by a physician.
Administrators argue that the fee policy
has greatly reduced the number of prisoners who come to sick call. For example, in
an article in the Fall 1992 issue of
CorrectCare, "Fees For Medical Services:
ACost-Saving Program," health care
providers in Mobile County, Alabama
describe a 50% decrease in the number of
prisoners who sign up for sick call since
the fee policy was implemented. Yet such a

drastic drop suggests that the fee policy is
excessive and forces prisoners to forego
sick call in order to save money to spend
on other essentials such as hygienic products or legal materials.
Prisoners and prisoner advocates take a
different view. Whether the new payment
schemes operate to discourage prisoners
from attending sick call or directly
obstruct access, the policies ignore the
significance of full and unimpeded access

to sick call and the importance of preventive care in correctional facilities. Because
of the close quarters and crowding attendant to incarceration, effective measures
must be taken to reduce the risk of infection and disease from spreading through
the facility. The most basic of these measures is to operate daily sick-call clinics
which prisoners are encouraged rather
than discouraged to attend.

state pay because of the unavailability of a
prison job, or are not paid a standard
market salary. Most earn only $20-$30 a
month, The situation in jails is even worse.
For example, at the New Orleans Jail where
prisoners receive no pay and most have
-,
only a small amount of money in an
account, a $3-$5 charge for an OTC product can be a substantial setback, especially >
if they have other things to buy.!
Aprisoner in the New Orleans Jail, as In
most prisons and jails, must pay for very
basic hygienic supplies such as underwear,
socks, sheets, shaving cream, shampoo,
skin lotion, toothpaste, toothbrushes, sanitary napkins, etc. This is also true of reading and writing materials, postage and
phone calls. Except for meals, a pair of
slacks, a shirt, and a blanket, prisoners
are entirely dependent on their families to
sustain them. Prisoners are therefore
forced by payment policies to make a
choice between two necessities of life in
the institution: medication or hygienic/personal supplies. Many may choose to forego
the OTC medication and try to obtain the
other supplies believing that they do not
have money for both.
Finally, payment policies typically have
no provision for indigence. Policies will
note only that the prisoner's commissary
account will be debited and if there is no
money in the account a "negative balance"
will be created. Often, prisoners will do
without hygiene items or medical treatment rather than have their families
deposit funds that will be immediately confiscated to satisfy the prison's charges.

Early evaluation important
Timely access to sick call is the touchstone of a functioning prison health care
system. Once the prisoner has entered the
delivery system at the sick-call level and is
seen by a clinically trained person who listens to the complaint and evaluates the
need, an objective referral to a physician
can be made or withheld. Through this
method of triage, the relative few who
choose to abuse sick call regularly will not
impose profound monetary costs on the system, while legitimate users will have ready
access to all appropriate levels of care.
For example, certain serious diseases
with significant public health implications
can present apparently benign symptoms
at the outset, such as persistent cough,
headache, or even a rash. However, these
symptoms could signal the onset of something far more serious, such as tuberculosis or HIV disease. In a prison setting it is
imperative that these medical conditions
be identified and treated promptly.

Legal issues
Proponents of the various payment
schemes claim that the courts have
addressed the issue and determined the
plan to be constitutional. Opponents take a
different view of the courts' various interpretations of these practices. Adecision
from the Tenth Circuit Court of Appeals in
Collins v. Romer, 962 F.2d 1508 (lOth Cir.
1992) is the most instructive case. In that
case the court, dealing with an attorney
fees issue, thoroughly discusses the (unreported) district court opinion which found
the Colorado Department of Corrections'
payment scheme unconstitutional (prior to
its amendment). The original policy
required a $3 payment whenever a prisoner was seen by a physician, dentist, or
optometrist. The court observed that this

Forced to choose?
Prison health care administrators argue
that fee policies force prisoners to make a
choice about how they will spend their
money, but prisoners typically receive no

This practice was recently enjoined by United
States Magistrate Judge Alma Chasez, in litigation
brought by the National Prison Project in Hamilton
v. Morial, Civ. No. 69-2443 (Order, Mar. 4, 1993,
E.D. La.) (discussed below).

2

SPRING 1994

1

requirement was much too harsh considering the meager level of prisoner pay and
the state's corresponding duty to provide
medical care. The amended policy, which
imposed payment only if the prisoner
sought a second opinion, was subsequently
upheld. On these facts, the court of
appeals found that plaintiffs were responsible for the repeal of the original policy and
were entitled to fees. Thus Collins,
although mainly dealing with attorneys'
fees, acknowledges the unconstitutionality
of the Colorado medical payment policy.
The only other:Jeported decisions
addressing this. subject are inconclusive on
the fundamental Eighth Amendment question. In Shapley v. Nevada Bd. ofState
Prison Com'rs, 766 F.2d 404 (9th Cir.
1985), a pro se prisoner argued that the
imposition of a $3 charge for each medical
visit was unconstitutional. The district
court dismissed the complaint as frivolous;
the court of appeals agreed, stating that
the prisoner failed to allege "facts revealing how the $3 fee affected him." Shapley
did not claim he was denied medical treatment because he was unable to pay the $3
(cont'd on page 17) -

Editor: Jan Elvin
Editorial Asst.: Jenni Gainsborough
Regular Contributors: John Boston,
Russ Immarigeon
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1875 Connecticut Ave., NW, #410
Washington, DC 20009
(202) 234-4830 FAX (202) 234-4890
The National Prison Project is a tax-exempt foundation-

funded proiect of the AClU Foundation which seeks to
strengthen and protect the rights of adult and juvenile
offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and

judicial channels; and to develop alternatives to
incarceration.

The reprinting of JOURNAL material is encouraged with
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be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
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are welcome.

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THE NATIONAL PRISON PROJECT JOURNAL

Criminologists, Practitioners Respond to Arguments
Against "Legal Punishment"
Imbalances ojwealth andpower enable
the dominant group within society to';
impose its values and ideas ojright or'
wrong, which may not be shared by other
groups. This lack ojshared values undermines the intended deterrent effectoJ
punishment, which may well be viewed
by the underclass as oppression or scapegoating rather than deterrence. Thus
"just deserts, " rather than building a
stronger community, increases the divisions within it. The legal system that
developsJrom it is ojnecessity
adversarial, Jocusing on blame
andpunishmentJor the criminal,
not on the harm done to the victim and the needJor healing and
restitution. The cruelty ojpunishment is incompatible with the
need to reintegrate the offender
into society.
According to Berzins, the outdated concept ojpunishment as
a requirement oJjustice must be
challenged. We can no longer
mindlessly approve the "quick
fix" approach ojmore and longer
prison sentences which in reality
is no fix at all, and only benefits
the huge prison industry that it
has spawned. A new paradigm is
required which moves beyond
retribution and emphasizes the
liability ojthe offenderJor the
offense. Such aparadigm might
The cruelty of punishment, says Berzins, is
emphasize
careJor the victim,
incompatible with the need to reintegrate the
processesJor resolving conflicts,
oHender into society.
and alternative nonviolent ways
ojexpressing denunciation. Separation
Berzins began her article with a criJrom society would be a last resort.
tique ojthe widely accepted theory oj
In summary, Berzins recognizes that
"just deserts, " which permits the punishcrime and evil cannot be eradicated, but
ment ojerfflnts provided the punishresponding to them with the infliction oj
ment is proportional to the seriousness
painJor the satisJaction ojrevenge canojthe crime, and is the minimum neednot be an acceptableJoundation Jor a
ed to achieve its purposes ojdeterrence
criminaljustice policy. Here are some oj
and denunciation. While accepting that
the reactions to herpiece:
society requires a means by which to
deter and discourage anti-social behavLorraine Berzins' thoughts on the use of
ior, Berzins questioned whether punishlegal punishment raise many disturbing yet
ment is effective or whether it can meet
important issues, but none more significant
the test ojproportionality. In particular,
for me, an African American, than her conshe argued that the inequality ojecotention that a criminal justice system based
nomic conditions in society (exacerbaton punishment is destructive and inevitably
ed by racial inequalities) creates an
breeds "injustice in an unjust society." After
unjust society in which just deserts are
all, African Americans have always known
impossible. just deserts is an abstract
first-hand the destructive impact of the
concept; proportionality is subjectively
harshest forms of pUnishment in Americajudged. Criminality does not exist as an
imprisonment and the death penalty.
absolute-it is defined by society.

In an article in the Spring 1993 issue
oJthejOURNAL, Lorraine Berzins challenged a basic assumption ojour criminaljustice system-the "rightness" oj
punishmentJor wrong-doing. We were
pleased that theJundamental questions
Berzins raised brought responsesJrom
several very distinguished criminaljustice theorists andpractitioners. Given
the importance ojthe issue, we are
devoting apart oJthis quarter'sjOURNAL
to these responses.

THE NATIONAL PRISON PROJECT JOURNAL

Historically, both have been politically
directed against African Americans for the
purpose of promoting white supremacy and
controlling "a problem population". As did
enslavement, these forms of retribution have
served to destroy the body, mind, and spirit
of untold numbers of African American
males and fed!ales, decimated their families,
and impaired/their communities in ways that
have rendered them almost incapable of
adequately providing the most basic of
human functions.
It is time the American people realized
that their punishment-driven criminal justice system has not only failed to make
communities safer, but promoted grave
injustices in the process. And, if our nation
is truly committed to safer communities
and social justice, we must embrace new
goals for our criminal justice system ones that serve to strongly denounce, yet
protect and even empower those who
offend. For many criminal offenders suffer
from alienation, powerlessness, and frus<tration over their inability to exercise even
a modicum of control over their lives. It is
this frustration that often gives rise to
criminal behaVior. Therefore, by addressing their needs, those of the rest of the
nation can be satisfied as well.
Lorraine Berzins appropriately asks us
to discard our outdated and harmful
notions on the need to punish, and replace
them with ones that promote justice and
healing. •
Dr. Alice P. Green is executive director
oJthe CenterJor Law andjustice, Inc.,
inAlbany, New York.
Ms. Berzins mounts a blunderbuss attack
on the American criminal justice system. It
over-criminalizes; punishes excessively,
relying too heavily on lengthy imprisonment; fails to deliver the message of the
law in a meaningful way to potential
offenders; and heightens oppression of the
few by the many in an unfair and unequal
society.
So far, so good. Most thoughtful
observers of the institution agree that it
ails in serious respects, perhaps fundamentally. I especially share Ms. Berzins'
view that "a radical downscaling of penalties is required even to pay lip service to
the ethics of just deserts." That criticism
resonates now with greatest force in the
area of mandatory minimum sentences.
The need to impose draconian sanctions
SPRING 1994

3

for federal drug crimes recently impelled
two esteemed senior judges to decline
such cases for the future. Plainly, abolition
of these provisions should head the list of
any serious reform agenda.
Berzins' account falls short, however, in
its leap from description to diagnosis.
While globally ascribing the system's flaws
to the fact that it is based on "punishment," Ms. Berzins never defines this term
as a penological aim. She shows only that
the system produces punitive results-not
that it does so because of any particular
philosophy. She also evinces little grasp of
the subtleties of, and relationships among,
the key concepts in this area. For example,
her claim that the principle of "just
deserts" regards punishment as serving
deterrence and denunciation conflates a
number of different theories in a wholly
unhelpful manner.
The belief that she has succeeded in pinning the tail of punishment on the criminal
justice donkey leads Ms. Berzins to ignore
ways in which alternative approaches to
crime may create similar or worse problems. For instance, many scholars have
noted how the ideal of rehabilitation, when
it held sway, so often led to increased
severity of penal sanctions. Indeed, her
own suggested focus on "[p] re-emptive
deterrence" raises a question whether any
of the unexplained measures she envisions
might violate civil liberties. She also overlooks the point that some of her closing
recommendations, such as increased
reliance on community-based problem
solving, can coexist with punitive aims:
local tribunals may stress pUnishment as
much as more traditional courts.
I conclude that by switching her attention from theory to practice-fleshing out
her specific proposals into a genuine
action program-Ms. Berzins could more
convincingly prescribe for the sick institution she knows so well. •
Vivian Berger is aprofessor oflaw at
Columbia University specializing in
criminal law, and a National Board
member andgeneral counsel ofthe
ACLU.
Given the dominance of South African
issues in my recent professional life, the
Berzins piece produced a number of reactions which related to that nation's use of
the principles of punishment. There is
probably no single other country, with the
possible exception of the former USSR and
the current People's Republic of China,
which has used such a massive state apparatus to terrorize its population. The
apartheid state, par excellence, utilized
4

SPRING1994

the threat and imposition of punishment to
maintain its structures and control. As you
are well aware, the enemies of apartheid
were ruthlessly imprisoned or eliminated.
What is both surprising and very encouraging about the post-apartheid South
Africa is that those who bore the brunt of
this state of terror and punishment display
the most amazing capacities to forgive
their oppressors. Nelson Mandela is, of
course, the shining example of this
approach, but I met countless black South
Africans who had every reason to demand
vengeance but who instead were working
now to build a new South Africa in collaboration and cooperation with their former
enemies. The only demand that they made,
and it is very relevant to the Berzins thesis,
was that those who had perpetrated the
horrors of apartheid admit publicly that
they had done wrong and thus expurgate
their misdeeds. Many of the old regime
have not been able to accept this demand
and they will undoubtedly be purged from
their positions of power once the democratic process takes hold. •
Duncan Chappell is the director ofthe
Australian Institute ofCriminology. At
the time the Berzins article appeared he
was a member ofa Commonwealth
Observer Group seeking to assist South
Africa in its transition to a democratic
society. In a letter written on his return,
he related his experience ofSouth Africa
to Berzins' views.
Most ethical systems in the Western world
have as a basic premise that suffering and
pain ought to be limited. We live in "soft"
cultures. Nurses deliver pain-killers to
those who need it in hospitals. Social security systems are there to fend off the worst
effects of social troubles. Torture is not
highly regarded. Punishment means the
intentional delivery of pain. We punish, but
with considerable ambivalence. And we try
to camouflage what we are doing. In my
country, Norway, correctional officers are
called "betjenter," which means those who
serve other people, cells are called rooms,
isolation cells are called single rooms, and
the administration running all prisons is
called "kriminalomsorgen." "Omsorg" can
most easily be translated into "some sort
of warm care for those who suffer."
But this ambivalence towards punishment leaves room for measures to limit
that activity. Let me point to five strategies
which are useful in attempting to bring
pain delivery under control.
1. Abasic tool is honesty in terminology. It
is important to make clear what happens; that this suffering is intentional,

that professors of penal law are professors in the laws regulating pain delivery,
that prisons are not hospitals; that their
basic intention is not to help, but to
hurt. And this they do.
2. Punishments are man- or woman-made.
There is no "natural" answer to the
question: what is the "right" punishment? Punishments are based on decisions. The use of punishment in any
society is a cultural question. What is
seen as unwanted behavior can be dealt
with in severa1'tways. Punishment is only
one. This brings us to the third point,
which is:
.
3. Not to let ideas on crime and punishment begin with the concept of crime
but with the concept of "acts. Crime
does not exist. Acts exist, and then,
later, some of these acts are interpreted
as being crimes. The meaning of the
acts are created through social processes, not by nature. By this type of thinking, we get an opening for considering
alternatives to punishment-for going
back to the original act and asking for
other ways of looking at this act. Maybe
it is more fruitful to look at this particular act as a conflict between parties. But '
conflicts most often have other solutions
than punishments. The usual way of
handling conflicts-discussions, quarrels, compensations-all these ways we
call civil solutions. Compensation might
also create pain, but that pain has
another quality. It is the inevitable pain
of social life when acts are discussed
and evaluated, and blame and shame
eventually are accepted.
4. The next natural question is how to create social life which encourages a tendency to perceive acts as conflicts, not
as crimes. The possibilities here are
many. Let me just point to the remarkable capacity we have to perceive what
happens with unwanted acts inside our
families, or in closeknit circles of colleagues, friends or neighbors as something different from crime. Unpleasant,
silly, ought not to have happened, but
not crime. The explanation is probably
that we know so much about what happens here, and about the actors, that the
formal categories of theft, of violence, of
vandalism, do not quite fit. My son
might have taken my money, but he is
not a thief. I know him, know him so
well that the label will not stick. In this
perspective, all measures which help
people to come close to each other can
open us to relationships where limited
use of punishments is appropriate.
5. But neighborhoods are damaged in
many highly industrialized countries.
THE NATIONAL PRISON PROJECT JOURNAL

to the u.s. and a visitingprofessor at
universities in Europe and North
America.
There have been two principal features of
the development of what is known as the :;'
criminal justice process in the 20th century,
The first is its inexorable extension into >
walks of life and elements of human behav"
ior where it has no need to be. In many
countries the statutory criminal law h~,
expanded over the last 50 years at a rate
which was not matched in previous centuries. The second feature is the extent to
which the executive arm of the criminal justice process has taken over certain powers
~ which more properly belong to the judiciary.
'" The most obvious example of this is deci~ sion-making about the release of prisoners
c...
who are serving indeterminate sentences or
d5
who are eligible for early release on parole.
The basic intention of prisons, accordOne of the main justifications for this
ing to Norwegian criminologist Nils
expansion of the criminal justice machine
Christie, is not to help, but to hurt.
has been the concept of rehabilitation of
offenders. In very broad terms this
This means a need for systematic encourassumed that there must be something
agement of neighborhood-building. Acon"wrong" with people who broke the crimiciliatory board, or boards, for advising on
nal code of a society. The task of the
how to cope with conflicts might be a help
prison service, known in many countries
in this situation. These are not an alternaas the correctional service, was to correct
tive punishment but, through their civil
this individual wrong. Adecision about
solutions, an alternative to punishment.
release was best made by the executive at
Is there then no need for formal punishthe point at which experts decided that the
ment and for prisons in particular? There
person had been made whole again.
probably is a need in societies of our type.
There is now a general recognition
But this brings us back to Point 3. We are
among academics and practitioners, if not
free to decide on the cultural question of
among politicians and the public, that this
amount of pain delivery. Prisons are, in a
expansion of the criminal justice process
way, representative of national cultures.
serves no one's best interests. The first step
There are no rational reasons for not using
in restoring some sense of balance is to
flogging or other forms of physical malrecognize that criminal justice should not
treatment within prisons. When we do not
operate on a social welfare model. Its
use these measures, it is because we think
sphere of influence should be restricted to
that would be wrong. As members of
a penal model. People should not be
nation-states, we would probably also think
deprived of their liberty "for their own
that such m~flsures represented our
good" or "for training" or because they
nations, and thereby ourselves, in a way we
need a place of asylum. If it achieves nothing else, the just deserts model of punishwould not like to be represented. As we
would be proud of our country for certain
ment can be a first step towards limiting
accomplishments, we would feel shamed by
the inappropriate involvement of the crimiothers-such as flogging, such as torture,
nal justice process in modern society.
such as having a prison population very
The next step, as Lorraine Berzins sugmuch higher than any other supposedly
gests, will be to restore a proper balance
democratic country, such as having a prison
between the victim and the offender and to
population where more that half belong to
ensure that formal process is used only
ethnic minorities. The amount of punishwhen the interests of society require it. In
ment is not a result of "crime," but a result
this respect western societies have much
of the type of social organization and of
to learn from models which respect the
human decision on delivery of pain. •
rights of society, the rights of the victim,
Nils Christie is aprofessor ofcriminoand the rights of the offender. •
logy at the University ofOslo and the
Dr. Andrew Coyle is the governor
author ofnumerous books on criminal
(warden) ofBrixton Prison in London,
justice. He has been a Rockefellerfellow
England.
THE NATIONAL PRISON PROJECT JOURNAL

Lorraine Berzins argues rightly that crime
policies should abandon punishmentbased practices. In the U.S., such an
approach exists largely in victim-offender
reconciliation programs and in a small
sample of academic writings and advocacy
proposals. Alternatives to incarceration,
particularly intermediate sanctions, are
generally punishment-based, although the
work of many defender-based sentencing
advocates is frequently, albeit implicitly,
nonpunitive. Seemingly there is a
groundswell 6f support for "reparative justice," if one ijstens to the informal
thoughts of,fuany practitioners. Nevertheless, there are also barriers.
The failures of punitive policies are
well-known, yet it is useful to describe
them in sordid detail. Stories must be told.
It hasn't sunk in yet. Criminology textbooks are socialization agents for millions
of students. But how many textbooks discuss, in any detail, reparation, nonpunitiveness, penal abolition? These matters
are less considered in the U.S. than in
regions such as Canada, Scandinavia,
and Western Europe.
Penal policies are less guided by philosophy than by politics. And even more
thoughtful policy is often centered within
contexts that do not align themselves with
reparative sanctions. In short, nonpunitiveness is rarely considered seriously. More
must be done to spell out how nonpunitive
options work. Most practitioners know
examples of how it can be done. I suspect
these stories are not told because people
feel uncertain about their legitimacy.
The "fatal flaw" of just deserts, Berzins
argues, is its abstraction. Just deserts, by
design, also has limitations. Reparative
justice, too, has limitations. But, by being
an open-ended rather than a restricted
process of justice, reparative justice is
potentially more based in social and economic realities.
Victim restitution, offender habilitation,
and community-building interests, among
others, are more feasible options with
reparative justice. Reparative justice connects offending and victimization to the
larger society, while just deserts, which is
not entirely without advantages, blunts
such connection. In practice, many sanctions, community service for example, go
beyond their just desert base to informally
explore more helpful, reparative interventions. Reparative justice requires further
development and use. It addresses victims
and offenders where they are, rather than
where justice system workers prefer to see
them. •
Russ Immarigeon is a writer on criminaljustice and regular contributor to
SPRING 1994

5

thejOURNAL. He worksfor the New York
Statewide Youth Advocacy.
Lorraine Berzins' article, in which she
scrutinizes and unravels the different arguments in favor of a punishment theory of
"just deserts," demonstrates very well its
unavoidable negative consequences and
the abstraction in ethical thinking on
which it is based.
The following statements in her text are
very convincing conclusions resulting from
a thorough and systematic observation of
the criminal justice system in action.:
• punishment will inevitably breed injustice in an unjust society
• an overwhelming body of findings from
the fields of social and modern physical
sciences has shown that the imbalance of
power and wealth in our society has led
to inequities ... rationalized by those who
have the power...to define what is "right"
• many people are left at the mercy of the
social ethic of the dominant group
• the power of the dominant group to
assert that their perception justifies legal
punishment can lead to scapegoating of
those with whom there is not the relationship, bond or shared meaning• punishment is experienced as an injustice, a rejection, a scapegoating, ...
The rediscovering of a wide variety of
more civilized ways to deal with problematic situations gives a quite different perspective which includes the importance of
positive goals such as "denunciation" and
"the right to protection." The creation of a
new paradigm for doing justice is the challenge for those who want to realize fundamental penal reform.
As stated in the article, new paradigms
will especially enhance and give priority to a
restorative approach. The combination of
the care for the victim and the recognition of
the liability and responsibility of the offender
will find its place in a (for both parties)
care-offering community. The special role of
the criminal justice system is to safeguard
that this process takes place, reckoning with
the fundamental right of the parties (victim,
offender, community) involved.•
Tony Peters is aprofessor in the
Department ofCriminal Law and
Criminology at the Catholic University
in Leuven, Belgium.
Most people working in criminal justice
will share the anger and exasperation
which inspires Lorraine Berzins' article.
Punishment does not work; worse still, it
diminishes both the offender who
receives it and the society in whose name
6

D

SPRING 1994

it is administered. Her advocacy of crime
prevention (in its widest sense), of
reparative measures, and of a focus on
the needs of victims will also all surely
strike a chord.
She is right too in pointing out that
'just deserts' is an abstract concept.
There is no logical nexus between any
given offence and the penalty which
ensues. Asystem which, say, equates a'
burglary or robbery with a period of '
incarceration is operating a convention,
not expressing a universal principle.
On the other hand, to English eyes,
Ms. Berzins perhaps overstates the
degree to which 'just deserts' necessarily
results in a continuing increase in the
prison population. Our most recent legislation-the Criminal Justice Act 1991was expressly based on 'just deserts', yet
appears to have resulted in some reduction in the number of custodial sentences
imposed. Indeed, there is now a backlash
against the Act-led by sentencersexactly because it has reduced their discretion and cut back on the use of
imprisonment.
Three further points. First, unlike Ms.
Berzins, I would not over-emphasize the
role of "those who have the power to
produce our ideological threads." As she
says, many offenders have expressly
rejected the perceptions of right and
wrong promulgated by the "dominant
groups." Yet we should not be too starryeyed; prisoners are often very punitive
(certainly they are towards each other).
Second, the proper aims of criminal
justice which Ms. Berzins says include
denunciation and the right to protection
may always be perceived as punitive by
those on the receiving end. Ms. Berzins
admits that "some separation from society may be needed, but not for the purpose of punishment," and that-as a last
resort-"some strictly coercive measures
bordering on punishment may have to be
invoked." I would not like to explain to
offenders that their sentences are strictly
coercive but heaven forbid they be
thought of as punitive.
Finally, what is perhaps lacking from
Ms. Berzins' account is any examination
of the process of transition from our
present arrangements to those she (and
I) would like to see. Is justice possible in
an unjust society? Surelynot. But what in
practice do we do while awaiting the creation of a just society (even if we could
agree upon the parameters of such a
society)? •
Stephen Shaw is the director ofthe
Prison Reform Trust in London, England.

I am pleased that you have published
Lorraine Berzins' critique of punishment.
In our debates about jail and prison

crowding, we often miss the most important question: instead of asking which
punishment, we should be asking
whether we should punish.
My own book, Changing Lenses: A New
Focusfor Crime andjustice, critiques
the existing paradigm along the same
lines as Berzins and, like her argument,
points toward ;t paradigm which focuses
on harm and lf~bilities instead of punishment. However;' Berzins helpfully extends
the critique ·of punishment further, e.g.,
by demonstrating its connection to issues
of social justice.
John Braithwaite's recent work (Crime,
Shame and Reintegration) helps to explain why punishment denounces wrong
so ineffectively. He argues that shaming is
an important form of social control but
that punishment as we practice it represents disintegrative shaming; we shame,
but do not offer offenders a way to regain
the respect of themselves or the community. Consequently, they seek out other
outcasts like themselves, delinquent subcultures, thus strengthening their selfimage as offenders and their alienation
from the community. "Reintegrative
shaming," however, denounces the wrong
effectively because it offers a way back
through such processes as restitution and
reconciliation.
It is doubtful that we will ever eliminate punishment. If, however, punishment begins to give us a bad conscience,
if the imposition of pain becomes a
choice of last resort rather than the aim
of justice, we will have made great
progress. •
Howard Zehr is the director ofthe Mennonite Central Committee U.S., Office of
Crime andjustice.

THE NATIONAL PRISON PROJECT JOURNAL

l

A PROJECT OF THE AMERICAN CIVIL L1B~RTIES UNION FOUNDATION, INC.
VOL. 9, NO.2, SPRING 1994· ISSN O!48-2655

~.,

.,,)

Highlights of Most
Important Cases
COLOR OF LAW

Six years ago, the Supreme Court held in
West v. Atkins, 487 U.S. 42 (988), that a
private physician providing services to prisoners acted "under color of state law" and
was therefore amenable to suit under 42
U.S.C. §1983. The Court rejected the arguments that non-employees working for the
prison under contract, or persons exercising
professional judgment without "custodial or
supervisory" authority, do not act under
color of law. Rather, the Court emphasized
that the state has a constitutional obligation
to provide medical care to prisoners, and
that prisoners may receive only that medical
care that the state provides. When a prisoner
is subjected to deliberate indifference by a
prison medical practitioner, the consequences are "caused" by state action regardless of the contractual relationship between
the state and the practitioner, the amount of
time the practitioner spends dealing with
prisoners, or the similarity between the practitioner's role and that of a private physician
treating non.prisoners. ("State action,"
required to show a violation of the
Fourteenth Amendment, and "color of law,"
required in order to seek a remedy under
§1983, amount to the same thing for purposes ofthis discussion.)
West carried an importance beyond its
facts. At the time it was decided, the fad for
private prisons was at its height-in part, it
appeared, because some believed that government could avoid federal court scrutiny
under §1983 by delegating the entire function of incarceration to private entities. West
seems to have put an end to that line of wishful thinking. If a private contractor providing
one of the necessities of life to prisoners acts
under color of law, then afortiori the same
must be true of a private contractor providing
THE NATIONAL PRISON PROJECT JOURNAL

all of the necessities of life.
Case law since West bears out this view.
Courts have concluded with little difficulty
that private operators of prisons and jails act
under color of state law. See, e.g., Skelton v.
Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir.
1991), cert. denied, 112 S.Ct. 1682 (992);
Payne v. Monroe County, 779 F.Supp. 1330,
1335 (S.D.Fla. 1991) (Wackenhut
Corporation) .
It is equally clear that persons or entities
providing constitutionally required services
to prisoners other than medical care act
under color of law. For example, in Islam v.
jackson, 782 F.Supp. 1111, 1113 (E.D.Va.
1992), a private company that provided food
to a jail population did not dispute that it
acted under color of state law in a case alleging that inmates were served unwholesome
food. Similarly, a volunteer chaplain who
excluded a prisoner from religious services
was held to be a state actor. Phelps v. Dunn,
965 F.2d 93, 101-02 (6th Cir. 1992).
Interestingly, Phelps did not cite West v.
Atkins and did not rely on its reasoning.
Instead, it used more traditional state action
analysis, noting that the chaplain's right to
conduct services in prison was a privilege
created by the state and that the chaplain
"functions as part of and within the institutional structure of chapel command," having
signed an agreement to abide by prison rules
and having received training and an institutional ID from the prison. But Phelps' result
fits comfortably within West's rationale as
well, since prisoners are entitled to some
measure of the free exercise of religion, and
as with medical care, their only access to
religious services is through the means permitted by prison authorities. (Another religion case, which alleged that a private party
had contracted with prison officials to help
determine which prisoners should be eligible
for religious privileges allowed to Sikhs, was
resolved on slightly different grounds: that
the private defendant was a state actor because he was a "willful participant in joint
action with the State or its agents." Swift v.
Lewis, 901 F.2d 730, 732, n.2 (9th Cir.
1990), citing Dennis v. Sparks, 449 U.S. 24,

27-28 (980).)
There is one exception to the general rule
that the providers of constitutionally mandated services act under color of law. In Bounds
v. Smith, 430 U.S. 817 (977), the Supreme
Court held that prison officials are obliged to
provide for prisoners' access to courts by
supplying either law libraries or the assistance of legally trained persons. In some
jurisdictions, such services are provided
through contract with private organizations.
However, before West, the Supreme Court
had held that a public defender, even though
employed by the state, does not act under
color of law in the course of client representation because such representation must be
in the interest of the client and in opposition
to the state. Polk County v. Dodson, 454 U.S
312,318-19 (986).
The Polk holding was applied to a provider
of legal assistance to prisoners, Prisoners'
Legal Services of New York (PLS) , in Miller v.
Fisher, 1993 WL 438761 (N.D.N.Y., Oct. 26,
1993). PLS is a non-profit corporation that at
the relevant time was funded pursuant to
state statute by the state Interest on Lawyers'
Accounts program. The plaintiff alleged that a
PLS legal assistant conspired with prison officials to prevent his being transferred to a unit
for physically disabled inmates. The court
observed, "Much like the role of the public
defender in Polk County, the staff at PLS
stands in direct opposition to the state during
the representation of its clients," Id. at 9, and
added that PLS attorneys have an ethical
obligation to pursue their clients' rights zealously rather than act at the state's direction.
The defendant, though not an attorney, acted
at attorneys' direction. Moreover, the court
said, "it is the function and role of PLS that
shields her from state action, not whether she
is an attorney." Id. at 10.
There are exceptions to this lawyers'
exemption from the West color of law analysis. The Miller court acknowledged that a
public defender who conspires with state
employees may be held to act under color of
law.ld. at 10, citing Tower v. Glover, 467
U.S. 914 (984). Presumably the same is true
of persons providing civil legal services to
SPRING1994

7

1
H01;vevE~r:

the Miller court held that
produced any evidence to
support his conspiracy allegation, and dismissed it on that ground.
Another potential exception, and one that
may be more significant, arises from the
Supreme Court's pre-Polk holding that a public defender may act under color of law in
making personnel decisions, see BranN v..
Finkel, 445 U.S. 407 (1980) (holding unconstitutional the firing of assistant public defenders based on political affiliation), and
from the acknowledgement in Polk itself that
administrative or investigatory decision-making by public defenders may be action under
color of law. 454 U.S. at 325. While a prison
legal services provider's handling of a particular case will be exempt from federal courtscrutiny, more general policies-for example, blanket policies of refusing certain kinds
of cases-might well be subject to challenge
as actions under color of law.
In practice, however, the legal service
provider is unlikely to be the proper defendant in most such cases. It is the state's obligation to provide for prisoners' court access,
and court access systems must be evaluated
as a whole. See Abdul-Akbar v. Watson, 4
F.3d 195, 203 (3rd Cir. 1993). If a legal
assistance program does not or cannot provide assistance in certain kinds of cases-as
is often the case, whether from lack of
resources or because of state law or contractual restrictions-it is the state's responsibility in the first instance to provide alternative
means of court access in those cases. Moreover, if other elements of the state's court
access program, such as the existence of adequate law libraries, fill the gap left by a legal
service provider's policies, there will be no
constitutional violation.
Apart from the special case of legal services, it appears that when prisoners allege
deprivation of constitutionally mandated services, private persons or entities will be held
to act under color oflaw unless their relationship with prison officials is greatly attenuated. Recent decisions illustrate two ways that
that relationship can be attenuated. In
McIlwain v. Prince William Hospital, 774
F.Supp. 986, 989-90 (E.D.Va. 1991), the
plaintiff was brought to the defendant hospital
by prison personnel and was treated there.
The hospital had no contract with the prison
system and there was no prior arrangement
concerning the prisoner's care; from the hospital's standpoint, he was just another injured
person. On these facts, the court found no
state action. See also Calvert v. Hun, 798
F.Supp. 1226, 1229 (N.D.W.Va. 1992) (physical therapist to whom a prisoner was referred
on a one-time basis did not act under color of
state law). In Kost v. Kozakiewicz, 1 F.3d
176 (3d Cir. 1993), the defendant pharmacy
prisoners.

8

SPRING1994

did have a contractual arrangement with private medical providers to fill prescriptions,
and these providers in turn contracted to provide medical care to jail inmates. However,
the court held that the pharmacy did not act
under color of state law, stating conclusorily .
that "it had no contact whatsoever with a state"
actor and was not one itself." ld. at 184.
.
These decisions-especially the McIlwain>
decision-may be hard to square with the
logic of West v. Atkins alone. West explicitly
disavowed the notion that the economic fOf,m
of the relationship, or the extent or frequency
of interaction, between prison officials and
private service providers determines the presence of state action. West, 487 U.S. at 55-56.
It did note that the state delegated its obligation to provide medical care to the defendant
physician, who "voluntarily assumed that
obligation by contract." ld. at 56. However,
Prince William Hospital presumably "voluntarily assumed" the care of Mr. McIlwain
when state employees brought him to the
emergency room, and the relevant difference
between it and Dr. Atkins is not apparent.
McIlwain appears to rest more on implicit
folk-justice notions of fair notice than on
close analysis of West's holding and rationale. (It may be that the hospital acted under
the compulsion of state law to treat anyone,
including prisoners, appearing for emergency
room care. If that were the case, however, the
hospital would properly be viewed as a regular part of the state's medical care system for
prisoners, just as if it acted pursuant to contract.)
Other fringe questions will arise in cases
that do not involve constitutionally mandated
services. The application of West v. Atkins in
such instances has not yet been seriously
explored by the courts. One recent case held
that MCI, the telephone service company,
acted under color of state law in the disposition of commissions and in announcing that
outgoing calls were being made by prison
inmates. Griffin-El v. MCI Telecommunications Corp., 835 F.Supp. 1114 (E.D.Mo.
1993). Telephone service is not one of the
basic human needs reqUired by the Eighth
Amendment, nor have courts squarely held it
to be required by any other constitutional
provision except in the case of pre-trial
detainees. Possibly for this reason, the court
in Griffin-El relied on more traditional state
action doctrines, holding that with respect to
the commissions, the corporation had a
"symbiotic relationship" with the state, since
its contract dictated the disposition of the
commissions and MCI profited from the
arrangement. With respect to the announcements, MCI was held to be a state actor under
the "close nexus" and "state compulsion"
tests, since its contract compelled it to make
the announcements. West v. Atkins was not

cited in the decision.
One can readily imagine other examples.
There is no constitutional right to rehabilitation. Suppose an employee of a private, nonprofit rehabilitation service, operating in the
prison by permission but without a contract
or compensation, violates a prisoner's rights,
for example by disclosing his HIV status or
otherwise Violating his privacy rights. Or suppose that the prison employs a band of musicians to perform at a prison program or celebration, and one of the musicians assaults a
prisoner with he~ guitar.
At these margi.Ds the color of law doctrine
remains unsettl~d. However, it is hard to
believe that there will be significant numbers
of cases arising in this zone of uncertainty.
From the standpoint of prisoner advocates, it
is comforting-and unusual-to know that
the color of law question has been resolved
so favorably to prisoners with such minor
exceptions.

PROCEDURAL DUE PROCESSDISCIPLINARY PROCEEDINGS
It is a cliche among federal courts that they
are overburdened by the ever-growing caseload of prisoners' lawsuits. It is seldom acknowledged that the growth of prisoner litiga-tion has been driven by the growing number
of prisoners rather than by any increase in
their litigiousness. In fact, comparing the
Bureau of Justice Statistics' prison population
data with data on federal court prisoner filings
maintained by the Administrative Office of the
United States Courts shows that prisoners have
become less litigious. Between 1982 and
1992, while the prison population increased
by 114%, filings increased by only 65%.
Nonetheless, the perceived overburden has
tempted judges to look for ways to push prisoners' cases out of the federal courts without
addressing their merits. The highest-profile
instances are, of course, cases in which the
Supreme Court has simply defined prisoners'
constitutional rights out of existence. See,
e.g., Hudson v. Palmer, 468 U.S. 517 (1984)
(holding that prisoners have no Fourth
Amendment rights with respect to cell searches); Parratt v. Taylor, 451 U.S. 527 (1981)
(holding that unauthorized deprivations of
prisoners' property do not deny due process
if state tort remedies are available). More
banal devices, such as broad-ranging and
poorly supported injunctions against prisoner
litigants and dismissal of pro se cases for failure to comply with difficult technical hurdles
(or even for failure to appear in court while
locked up!), have generally been curbed by
appellate courts. See, e.g., Kilgo v. Ricks, 983
F.2d 189, 193-94 (1Ith Cir. 1993); In re
Powell, 852 F.2d 427 (D.C.Cir. 1988);
Hernandez v. Whiting, 881 F.2d 768, 770-71
(9th Cir. 1987). In between are the exhausTHE NATIONAL PRISON PROJECT JOURNAL

tion of remedies provisions of the Civil Rights
of Institutionalized Persons Act, 42 U.S.C.
§1997(e), which appear to be the subject of
increased interest after years of neglect.
Comment, Resolving Prisoners' Grievances
Out of Court: 42 U.S.C. §1997(e), 104
Harv.L.Rev. 1309, 1316-17 (1991) (noting
numerous states seeking certification of their
grievance procedures).
Recent developments in the Second Circuit
provide a new variation on this theme. In
Young v. Hoffman, 970 F.2d 1154 (2nd Cir.
1992) (per curiam), the plaintiff brought
suit over a disciplinary conviction that had
been reversed through the New York prison
system's administrative appeal mechanism.
The appeals court reversed the district
court's grant of summary judgment and nominal damages, holding:
The administrative reversal constituted
part ofthe due process protection he
received, and it cured any procedural
defect that may have occurred. We believe
that, as a policy matter, this possibility of
cure through the administrative appeals
process will encourage prison administrators to correct errors as an alternative to
forcing inmates to seek reliefin state or
federal courts.
The court relied on Harper v. Lee, 938
F.2d 104, 105 (8th Cir. 1991), which contains a similarly conclusory statement, quoted
from an earlier state court case, that administrative appeals are "part of the due process
protection afforded prisoners."
What's wrong with this picture? The question presented is not a "policy matter"; it is a
question of law. Moreover, it is a question
governed by a substantial body of case law in
the Supreme Court. All procedural due
process claims are governed by a balancing
test that considers the seriousness of the
deprivation, the likely benefits of additional
or different procedures, and the expense or
difficulty that such procedures would pose to
government. Mathews v. Eldridge, 424 U.S.
319,335 (1Q76); see Washington v. Harper,
494 U.S. 210, 229 (1990) (applying Mathews
to a prison due process question).
The administrative appeal question is fundamentally one of timing. Must prison officials get it right at the initial hearing? Or may
they have a post-hearing interval to correct
their errors? The timing of procedural protections-and in particular, whether they
must be provided before or after the deprivation-is governed by the Mathews balancing
test, which prescribes a pre-deprivation hearing in most situations. Zinermon v. Burch,
494 U.S. 113, 127 (1990). The major exception to this requirement is "random and
unauthorized" deprivations; because of their
unpredictability, there is no pre-deprivation
process that the state can provide that will
THE NATIONAL PRISON PROJECT JOURNAL

address such deprivations. Id. at 128-29, citingParrattv. Taylor, 451 U.S. 527, 543-44
(1981). Under the Mathews test, due process
does not require futile gestures.
Prison disciplinary hearings are neither
random nor unauthorized; twenty years after
Wolffv. McDonnell, 418 U.S. 539 (1974),:/
they are one of the most heavily regulated .~.
and rule-bound aspects of prison life. Thus,
the Parratt v. Taylor rationale is simply inapplicable to them. Courts have generally.
assumed that pre-deprivation process is,
required for prison discipline. See Gilbert v.
Frazier, 931 F.2d 1581, 1582 (7th Cir.
1991) (due process requires a disciplinary
hearing "before the punishment is imposed")
(emphasis in original). This view is supported by the severe character of punitive segregation, seemingly the most common prison
punishment in most American jurisdictions,
and the fact that the disciplinary hearingwhich will have to be held anyway-can avert
the imposition of this punishment on prisoners who are innocent, or not guilty enough to
be punished so severely.
Whether or not one agrees that pre-deprivation process is essential, it is remarkable
that a liberal panel (including Judges Oakes
and Kearse) of a normally careful court
would resolve the case in this manner on its
views of policy without noticing that it is governed by authority in the Supreme Court. This
result is particularly odd, since another, dispositive basis for decision was available and
was cited. The plaintiff in Young had not
served a day of his punitive segregation sentence at the time of the administrative reversal, presumably because he was already serving segregation time for previous offenses.
Therefore, he had not in fact been deprived
of liberty at all by the disciplinary proceedings.
Subsequent Second Circuit case law has
taken an odder turn. In Russell v. Scully,
1993 WL 188677 (2nd Cir., June 4, 1993),
modified on denial of rehearing (2nd Cir.,
Jan. 3, 1994), the plaintiff was convicted at a
hearing, which was administratively reversed;
he received a second hearing, which was also
reversed. Unlike the plaintiff in Young, Mr.
Russell had served several months of his special housing sentence during these proceedings. The court held that due process had not
been violated because the plaintiff's confinement pending the appeals was administrative
in nature, since New York's regulations permit confining inmates in special housing to
preserve order and to protect safety and "as a
result of a hearing." The court then added a
sentence reiterating that "an inmate is not
deprived of due process where an administrative appeal has cured a hearing's procedural defects." Once more, there was no reference to the Mathews v. Eldridge test or to

the case law concerning pre- and post-conviction deprivation.
On petition for rehearing, the court modified its opinion, accepting the plaintiff's contention that his confinement was punitiveat least to the extent that he was deprived of
privileges in addition to his confinement in
special housing. However, the court added,
his damages would be limited to that deprivation of privileges. Since the state had the right
to confine him administratively, and since his
confinement continued even after the disciplinary proce~ings were dropped, the court
concluded thaJ he did not suffer any constitutional harm,fram the confinement itself.
The court, however, ultimately rested its
decision on other grounds. It held that the defendants were entitled to qualified immunity,
and it added, "We do not reach the question of
whether due process is violated by the imposition of pUnishment pending an appeal that
redresses any error in the earlier proceeding."
The court did note by analogy that commencing a criminal sentence before the completion of appellate proceedings does not
deny due process. The analogy misses the
point. The plaintiff's claim was that his disciplinary hearing was conducted in violation of
due process. The question is not whether •
confining him pending appeal independently
denied due process. Rather, it is whether the
initial denial of due process, in a proceeding
that requires pre-deprivation process, can be
erased by a post-deprivation proceeding. If
that proposition is rejected, as Zinermon v.
Burch suggests it must be, the months of segregation time pending administrative appeal
should be compensable as a foreseeable element of damag~s stemming from the defective
hearing.

Other Cases
Worth Noting
u.s. COURTS OF APPEALS
Pretrial DetaineeslUse of
Force/Summary Judgment
Wilson v. Williams, 997 F.2d 348 (7th Cir.
1993). The district court should not have
granted summary judgment in a use of force
case in which the plaintiff's and defendants'
affidavits were in contradiction. It "usurps
the role of the factfinder" for the district
court to credit the affidavits of physicians
analyzing the plaintiff's injuries over the
plaintiff's affidavits, or otherwise to make
credibility judgments.
The district court's assertion that" [s] ome
evidentiary facts must be produced proving
that a viable claim exists" upon which a reasonable jury could find for the plaintiff is
SPRING 1994

9

correct. However, the plaintiff's affidavit was
evidence for this purpose.

Ex Post Facto Laws
Flemming v. Oregon Board ofParole, 998
F.2d 721 (9th Cir. 1993). An amended parole
regulation limiting the amount by which the
petitioner's sentence could be reduced relative to the reductions permitted by prior law
violated the Ex Post Facto Clause despite the
fact that the parole board always retained discretion in deciding how much to reduce the
sentence.
Protection from Inmate Assault
Nelson v. Overberg, 999 F.2d 162 (6th Cir.
1993). The plaintiff received warnings from
the victim of his crime and from another prisoner that he would be assaulted, and he wrote
two letters to the Chief of Classification of the
Ohio prison system requesting a transfer. He
got back a form letter that did not address his
safety concerns, instead of the form letter that
tells fearful inmates to request protective custody or contact officials at their prison. No
investigation was conducted because the Chief
concluded that the threats were fabricated
based on of the lack of specificity in the letter
and the lack of corroboration in the plaintiff's
institutional file. The plaintiff was severely
beaten and hospitalized.
The defendant was not entitled to qualified
immunity. At the time of the assault, the plaintiff "had a clearly established right to be free
from attack by other prisoners," and the defendant "had an obligation to take reasonable
steps to protect [him] from violence at the
hands of other inmates." (166) The defendant
argues that the issue is not whether a reasonable prison official should have been aware
that disregarding the letters would violate the
Eighth Amendment, but whether he reasonably could have believed that his actions were
consistent with the Eighth Amendment. The
court concludes that it doesn't make a difference how the question is framed.
The evidence is. sufficient "to allow the jury
to draw the conclusion that Overberg knew of
a threat to Nelson's safety and yet disregarded
it, despite the availability of relatively effortless ways of addressing it, and that
Overberg's conduct amounted to a conscious
lack of concern or aloofness." (166)
Correspondence-Nonlegal
Loggins v. Delo, 999 F.2d 364 (8th Cir.
1993). The plaintiff wrote in an outgoing letter that" [t]here's a beetled eyed bitch back
here who enjoys reading people's mail" and
similar obscenities about the mail censor,
and was convicted of violating a rule prohibiting abusive or obscene language or written statements intended to annoy, offend or
threaten. He spent 10 days in disciplinary
10

SPRING 1994

detention. The district court granted summary judgment on liability and ordered expungement; a jury awarded $102.50 in damages. The judgment is affirmed under the
standard of Procunier v. Martinez, which
governs outgoing mail.

Pro Se litigatiOn/Statutes of
/
Limitations
Dory v. Ryan, 999 F.2d 679 (2nd Cir.
1993). The plaintiff's complaint was timely'"
because it was given to prison officials befor~
the running of the statute of limitations. The
court applies the rule of Houston v. Lack to
a civil rights complaint.
Procedural Due ProcessAdministrative Segregation,
Disciplinary ProceedingslDamagesDue Process Violations
Stevens v. McHan, 3 F.3d 1204 (8th Cir.
1993). The plaintiff received a medical exemption from work, was charged with malingering, and was placed in administrative segregation for eight days. He was then exonerated at a hearing. The district judge found
that his placement in administrative segregation was "malicious and arbitrary" and done
with an "express intent to punish," and held
that he was entitled to a prior hearing.
The district court's findings are not clearly
erroneous and the judgment of liability is
affirmed. However, damages of $500 a day
were "arbitrary and excessive" and an abuse
of discretion. It is permissible to award damages on a per-day basis. The court cites prior
awards ranging from $25 a day to $129 per
day.
Pre-Trial DetaineeslMedical Care
Harris v. Coweta County,S F.3d 507
(1Ith Cir. 1993). The plaintiff complained of
a hand injury caused by handcuffs; a doctor
recommended a nerve conduction study be
done if symptoms persisted. He continued to
complain but did not receive this study until
almost four months later, despite a doctor's
recommendation that he receive it as quickly
as possible. The doctor who conducted the
study recommended that he receive surgery
as quickly as possible. He filed suit and the
sheriff obtained a statement from the doctor
indicating that the surgery could wait a few
weeks. The plaintiff was then tried, convicted,
and transferred to state custody, where he received the surgery after another seven weeks.
On these facts, which support the allegation that the Sheriff deliberately delayed treatment until the plaintiff was transferred to
state custody, the Sheriff was not entitled to
summary judgment.

Procedural Due ProcessDisciplinary Proceedings/Qualified
Immunity
Richardson v. Selsky, 5 F.3d 616 (2nd Cir.
1993). Prison officials were entitled to qualified immunity from the plaintiff's claim that a
hearing officer's failure to make an independent assessment of the reliability of a confidential informant deprived him of due process. The court notes that it has never ruled
on the question whether such an assessment
is required by due process, though it has
"clearly implied" t~atthis is the case. The
right, assuming it~sts, was not clearly
established as 0[)985.
Personal Property
Tellis v. Godinez,S F.3d 1314 (9th Cir.
1993). Prison officials failed to credit the
plaintiff with the interest on his savings. The
court begins by stating the question whether
this failure constitutes a "taking" under the
Fifth Amendment, and then proceeds to
determine whether the plaintiff has a statecreated property interest in the money. He
does, because state statutes say so, and
because other state statutes permit the expenditure of prisoners' funds and interest only
under certain enumerated circumstances.
Prison officials' argument that they had been
using the interest since 1981 for prisoner
recreation and law library expenses, that
annual audits gave the legislature constructive notice of this practice, and that its silence
constituted tacit approval is unsupported by
any authority "to support such an approach
to statutory construction." (1316)
Procedural Due ProcessTransfers, Administrative Segregation
Howard v. Grinage, 6 F.3d 410 (6th Cir.
1993). Michigan administrative segregation
regulations create a liberty interest. At 412:
"Continued confinement in protective custody
after the reasons for such segregation no
longer exist could constitute a violation of
plaintiff's liberty interest. ..."
Classification regulations created a liberty
interest by providing that each prisoner "shall
be classified according to his or her behavior,
attitude, circumstances," and apparent trustworthiness; enumerating several factors to be
considered; requiring that the prisoner "shall
be assigned" to the least restrictive level of
custody consistent with the criteria; and requiring hearings except in enumerated circumstances. At 413: "Accordingly, an increase
in plaintiff's security classification level without notice and hearing could under certain
circumstances constitute a violation of plaintiff's liberty interests."

THE NATIONAL PRISON PROJECT JOURNAL

Appointment of Counsel
Tabron v. Grace, 6 F.3d 147 (3rd Cir.
1993). "Exceptional circumstances" need not
exist to support the appointment of counsel.
If the case has "arguable merit in fact and
law" (ISS), the court should consider other
factors. These include (at 156):
The plaintifJ's ability to present his or
her case. ... Courts generally should
consider the plaintifJ's education, literacy, prior work experience, andprior
litigation experience. . . [as well as]
factors such as the plaintifJ's ability to
understand English, ... or, if the plaintiffis a prisoner, the restraints placed
upon him or her by confinement. ...
... [T]he difficulty ofthe particular
legal issues.
... [T]he degree to which factual
investigation will be required and the
ability ofthe indigent plaintiffto pursue such investigation. .. .Additionally,
where the claims are likely to require
extensive discovery and compliance
with complex discovery rules, appointment ofcounsel may be warranted. ..
Similarly, when a case is likely to
turn on credibility determinations,
appointment ofcounsel may be justified. .. .Along the same lines, appointed
counsel may be warranted where the
case will require testimony from expert
witnesses. ..
Communication with Media/Qualified
Immunity
Kimberlin v. Quinlan, 6 F.3d 789
(D.C.Cir. 1993). The plaintiff told the press
that he had sold drugs to Dan Quayle; he had
another press interview scheduled. The director of the Bureau of Prisons cancelled the
interview and had him put in administrative
detention. Two days later, he was again
placed in detention before a scheduled phone
call to the press.
The defendants are entitled to summary
judgment on tb.e question of qualified immunity. At 793:
We impose a more stringent standard
... on a plaintiffwho charges a government official with a constitutional
deprivation where the outcome depends
on the official's state ofmind. Such a
plaintiffis subject to this court's socalled "heightened pleading" standard,
requiring pleading ofspecific direct evidence ofintent to defeat a motion to
dismiss and subsequentproduction of
such evidence to defeat a motion for
summary judgment. [Emphasis in original, footnote omitted]
Since the plaintiff had only circumstantial
evidence of improper motivation by the
defendants, he did not meet this standard.
THE NATIONAL PRISON PROJECT JOURNAL

One judge concurs in this opinion because
it is compelled by circuit precedent but suggests that he disagrees with that precedent
and notes that all other courts have rejected
it. The other judge dissents at length.

Accidents/Personal Involvement and
Supervisory Liability
Choate v. Lockhart, 7 F.3d 1370 (8th Cir.>
1993). The plaintiff fell off a 45-degree rQof.
The district court found the defendants liable
because they should have known the plaintiff
had a knee problem and should not have
been engaged in roofing work; that too many
inmates were required to work on the roof at
once; that the use of an electric saw generated sawdust on an already slick surface; that
inmates wore leather-sole shoes on the roof;
that one inmate complained about the roof
being slick and was told to shut up and work;
and that the roof was not equipped with scaffolding or toe boards.
At 1373: "Prison work assignments are
conditions of confinement subject to scrutiny
under the Eighth Amendment." At 1374: "In
the work assignment context, prison officials
are deliberately indifferent when they 'knowingly
compel convicts to perform physical
labor
which is beyond their strength, or
which constitutes a danger to their ...
health, or which is unduly painful. ,,, (Citation
omitted)
None of the defendants were deliberately
indifferent. The plaintiff's work supervisors
could not be charged with knowledge of his
medical condition because they did not select
inmate workers and were entitled to assume
that workers were not medically inappropriate for the job, and the plaintiff admitted he
had not complained to them. The supervisors
were not deliberately indifferent to all workers' safety; there was evidence that they took
measures to protect safety, and the particular
safety deficiencies did not rise to the level of
deliberate indifference.
Higher level supervisors who visited the
project site could not be held liable because
there was no reason for them to know about
the severity of the plaintiff's medical condition and the site conditions were not unconstitutional.
Procedural Due ProcessAdministrative Segregation
Jones v. Coonce, 7 F.3d 1359 (8th Cir.
1993). Missouri statutes create a liberty
interest in staying out of administrative segregation, and a reasonable official would have
known that even before the court said so.
lt was not clearly established that 15 days'
delay before a hearing was unreasonable, but
it should have been clear that 30 days was an
unreasonable time without a hearing.
Interviews by an official who merely report-

ed to the decision-maker did not constitute
the hearing required by Hewitt, nor did
"walk-bys" by the unit manager to explain the
reasons for segregation that did not give
inmates a chance to state their side of the
incident under investigation.

DISTRICT COURTS
Correspondence-Nonlegal
Bressman v. Farrier, 825 F.Supp. 231
(N.D. Iowa 1993). The plaintiff wrote a letter
to his brother r{!ferring to various prison personnel as "assh~les," "dick head [s],"
"punks," and.~'pitches," and added "now I
hope they all read this letter and get their
kicks off ofit." He was found guilty at a disciplinary hearing of "subject[ing] another person" to verbal abuse.
The disciplinary conviction violated the
First Amendment. Prison officials may punish
disrespect expressed to staff members, but
the plaintiff did not directly address staff
members and did nothing to cause the objects of his comments to read the letter other
than to mail it. The defendants were not entitled to qualified immunity.
Protection from Inmate Assault
Schwartz v. County ofMontgomery, 823
F.Supp. 296 (E.D.Pa. 1993). The plaintiff was
assaulted by an inmate who had been convicted of rape nine times, mostly against younger
and weaker prison inmates. Since there was
evidence that defendants had constructive
knowledge of the assailant's history and classification, the defendants were not entitled to
summary judgment on the plaintiff's deliberate indifference claim.
Service of Process
Schroeder v. Mabellos, 823 F.Supp. 806
(D.Haw. 1993). The plaintiff was given permission to "give some papers" to a prison
official and served process on him. He was
then suspended from his law library duties,
and the official on whom process was served
filed disciplinary charges.
At 809:
Assisting another person in litigation
is aform ofexpression and association
protected by the First Amendment to the
United States Constitution. ... Aprison
inmate retains a right to assist others in
litigation. ..
* * *
The service ofprocess is an expressive
act protected by the First Amendment
. .. [Citations omitted]
AIDS/Attorney Consultation/Medical
Care-Standards of LiabilityDeliberate Indifference
Haitian Centers Council, Inc. v. Sale, 823
SPRING 1994

11

F.Supp. 1028 (E.D.N.Y. 1993). The government violated the Haitian Service Organization's First Amendment rights to free speech
and association by denying them equal access
to Haitians held at the Guantanamo military
base while permitting many other nonlawyers to have access to them and while permitting discussions of the Haitians' legal
rights "but only from the viewpoint of which
the Government approves."
The court states that persons in "nonpunitive detention" have the right to "'reasonable
medical care,' a standard demonstrably higher than the Eighth Amendment standard" of
deliberate indifference.
The government's failure to act on military
doctors' recommendations that detainees
with T-cell counts of 200 or below or percentages of 13 or below be medically evacuated to the United States constituted a violation
of their constitutional rights.

Women/Equal ProtectionJPrograms
and Activities
Klinger v. Nebraska Dept. ofCorrectional
Services, 824 F.Supp. 1374 (D.Neb. 1993).
Women prisoners' claims of inequality in programs and services are governed by the intermediate "heightened scrutiny" equal protection test. Women are housed at the women's
prison for reasons of gender and not some
other factor that happens to be associated
with gender, and the men's and women's
prison populations are generally "similarly
situated." The heightened scrutiny test
requires the court to determine whether there
is a "substantial burden" on female inmates;
if so, whether the difference is attributable to
an important government objective; and if so,
whether the means chosen to further the
objective are "directly and substantially related" to it. (1391)
Absent such justification, equal protection
requires programs that are "substantially
equivalent" and requires "parity of treatment." (1392) Equality is not measured by
the amount of money spent, and the relatively
small size of women's prisons and greater
expense of operating them is no excuse for
unequal treatment. Economic considerations
alone cannot excuse failure to meet constitutional standards. (1392)
The court notes that female prisoners are
different from male prisoners in that many
are "passive to the point of dysfunction," have
had lower incomes, lack job training and
education, have severe confidence problems
and lack self-esteem, are often traumatized by
separation from their children, and have poor
living skills and little exposure to employment
opportunities. These differences are largely
the product of gender bias, and remedying
them would be an important interest.
Work Assignments: Paying women on an
12

SPRING 1994

hourly basis and men on a daily basis for
prison work substantially burdened women,
was not related to the interest of remedying
past discrimination, and was not justified by
any other important interest.
Education and Training: The failure,
first, to offer on-site post-secondary educa- i'
tion, and second, to offer it (and correspon-<,
dence courses) on equal terms, substantially:,burdened women, as did the failure in some
respects to offer vocational education and,
pre-release programs on equal terms. The-"
defendants did not justify the disparities.
Law Libraries and Law Books: Women
were substantially burdened by the housing of
the law library in an inadequate physical
facility, by the absence of Shepard's Citations,
and the more limited hours relative to the
men's prison. The defendants failed to justify
the disparities. At 1436-37: Women were also
denied access to courts during the period
when segregation inmates were denied physical access to the law library and not prOVided
with trained legal assistance, when there was
completely inadequate space, and when the
materials were not organized,
Access to Medical Personnel, Dental
Care: Women were substantially burdened by
the failure to provide trained medical personnel during the evenings and by lack of timely
dental services as compared to male inmates.
They were substantially burdened by inequalities in mental health care. The disparities
were not justified by the defendants.
Education and Training, State Officials
and Agencies: Title IX of the Education
Amendments of 1972, which bars sex discrimination in educational programs receiving federal money, was violated by the disparities in pre-release programs. The plaintiffs
need not show intentional discrimination
under this statute, but they did.
Personal Involvement and Supervisory
Liability: The directors of the prison system
are liable in damages for the violations
because they knew of the inequities, displayed
deliberate indifference or tacit authorization
of them, and failed to take sufficient remedial
measures.

Procedural Due ProcessDisciplinary Hearings
Moye v, Selsky, 826 F.Supp. 712 (S.D.N.Y.
1993). The plaintiff was convicted of stabbing
another inmate based solely on statements by
two officers that confidential informants had
implicated him.
The exclusion of the testimony of an alibi
witness who had been transferred to another
prison the day before the hearing denied due
process and violated a clearly established
constitutional right. Defendants did not contend that his testimony would have compromised safety, that it would have been irrele-

vant, or that the transferred witness could not
have testified by telephone. The claim that the
testimony would not have established the
plaintiff's innocence is rejected since it would
have been strongly probative.
The hearing officer's failure independently
to assess the reliability of a confidential informant denied due process, but the right was
not clearly established as of 1988, since the
Second Circuit had not ruled on it and other
circuits were divided.
An official who reviewed disciplinary proceedings was nor~entitled to absolute quasijudicial immunitY. There was no evidence that
he had been harassed or intimidated by lawsuits and he had the benefit of qualified
immunity. It would be "inequitable and
inconsistent" to give the appellate officer
absolute immunity while the hearing officer
only had qualified immunity. The officer lacked independence, since he was subject to removal by his superiors and since he provides
both general advice to facility staff on disciplinary proceedings and specific advice on particular proceedings, and thus in some circumstances might be asked to reverse himself.

Procedural Due ProcessDisciplinary Proceedings
Harris v. Maloughney, 827 F.Supp. 1488
(D.Mont. 1993). Plaintiffs' allegation that
prison officials took "progressive" disciplinary action against a group of inmates consisting of reduction of privileges because no
one had come forward and admitted to a particular act of misconduct stated a due process
claim despite the argument that there was no
liberty interest in the privileges involved. At
1494: "The Constitution protects individuals
from arbitrary governmental action, and from
discipline which is in the form of punishment
or retaliation, where legitimate government
interests are lacking."

DisabledlEqual Protection!
Procedural Due Process
Donnell C. v. Illinois State Board ofEducation, 829 F.Supp. 1016 (N.D.Ill. 1993).
Allegations that many school age pre-trial
detainees were not receiving special educational services they needed, that they were not
being taught courses other than reading and
math, and that some school-age detainees
received no educational services. These allegations of a "lack of instruction on even the
educational basics, or worse, a total lack of
instruction altogether," stated a claim under
the substantive component of the due process
clause.
The allegations also state an equal protection claim, and the defendants did little to
establish a rational relationship between their
practices and jail security. Instead, they
argued that if inmates could bring equal proTHE NATIONAL PRISON PROJECT JOURNAL

tection suits alleging they did not receive services equal to the free community, "chaos"
would result. At 1019: "... [T]his argument
does not relate to the state's interest in maintaining prison security, but the state's desire
to be free of prisoner litigation... Apocryphal claims of burdensome litigation do not
justify disparate treatment under the Equal
Protection Clause."

Classification-Race/Modification of
Judgments/Emergency
White v. Morris, 832 F.Supp. 1129 (S.D.
Ohio 1993). Aconsent decree prohibited cell
assignments based upon race, unless the warden or his designee personally found the segregation of an inmate necessary for institutional security reasons. After a major riot in
which files necessary for inmate classification
were destroyed, the defendants moved for
modification.
The court simultaneously "adhere[s] to the
principle that, as a general matter, racial segregation in prisons is unconstitutional,"
acknowledges a "crucial exception" for the
"necessities of security and discipline," and
suggests that the constitutional merits of the
defendants' position are governed by the
Turner standard. It later explicitly holds that
Turner governs (1136-37).
The defendants have met their burden of
showing that changed circumstances (i.e., the
riot, its consequences, and inmates' claims
that the order was one of the sources of tension in the prison) warrant a temporary
emergency modification. However, the defendants' proposal did not provide an end date
for segregated ceIling. "Such an indeterminate modification of the Decree would not be
suitably tailored to the changed circumstance." (1133) The modification should be
approved "only with a strict, Court-imposed
timetable aimed at rapidly abolishing the current ceiling policy, combined with the long
range objective of creating an environment in
which the Consent Decree can be fully and
successfullyeo.forced...." (1133)
Modifications must further the purpose of the
decree without upsetting the basic agreement
between the parties; the purpose of this
decree was to ensure the safe integration of
the prison.

Mental Health Care/Medical CareStandards of Liability-Deliberate
Indifference
Casey v. Lewis, 834 F.Supp. 1477 (D.Ariz.
1993). In cases challenging the medical care
system's constitutionality, deliberate indifference may be evidenced by repeated examples
of negligent acts or by systemic and gross deficiencies in staffing, facilities and equipment.
The defendants lacked any system for managing chronically ill patients and provide preTHE NATIONAL PRISON PROJECT JOURNAL

ventive care or for ensuring continuity of care
in the event of transfers. They substantially
remedied these problems by the time of trial.
Medical Care-Staffing (1544-45):
The defendants are unable to obtain enough
staff positions from the legislature or to fill
the positions they have. The staff shortage !t
results in delays that could violate the
.
Constitution if they caused an inmate serious
harm, and such repeated examples of delay .
or negligence may violate the ConstitutiOn.
Medical Care-Staffing-Qualifications of Personnel; Denial of Ordered
Care (1545):
... Security staffhave inappropriate
roles in the medical care system, including conducting health and welfare
checks on seriously ill inmates without
the supervision ofmedicalpersonnel. In
addition, when no medical staffare on
duty, security staffareforced to make
medicaljudgments. Security staffalso
have the authority to overrule medical
orders. Finally, in some instances, security staffinterfere with access to medical care. Such interference can rise to
deliberate indifference so that a constitutional violation occurs.
Access to Outside Care (1546): Referrals to outside providers must be "reasonably
speedy." The court cites a one-month delay
for a serious gynecological problem.
Defendants only contracted for specialists
when enough inmates were referred, appointments were cancelled because of funding
problems or transfers, and defendants lacked
a procedure or policy to determine whether
referrals had been completed.
Injunctive Relief-Changed Circumstances, Mootness (1546-47): The court
finds that the foregoing problems constituted
deliberate indifference at the time the case
was filed but that they had been sufficiently
remedied by the time of trial to eliminate the
constitutional violation. The court commends
the defendants but does not find the case
moot. At 1547:
Based on past experience with the
ADOC, this Court cannot be assured that
defendants will continue to implement
the new programs and staffthe facilities after the termination ofthis case.
Further, with the history ofthe funding
situation within the state and the current state ofbudget cuts, the Legislature
is unlikely to appropriate additional
funds for the ADOC. .. Thus, the Court
has the authority to monitor the medical and dental care systems for a reasonable period oftime to assure that
the department implements the pilot
program statewide andprovides sufficient staffto treat the inmates' serious
medical needs. ...

Mental Health Care (1548-49): Delays in
mental health assessment and treatment are
unacceptable. Delays result in locking down
inmates with serious mental illnesses when
they act out, despite agreement that more
than three days of segregation is inappropriate for acutely psychotic inmates and that
lockdown damages their mental health.
Inmates receive inadequate or no mental
health care in lockdown, though they should
be seen immediately and seen daily by a psychiatrist. At 1549: "The use of lockdown as
an alternative t'b mental health care for
inmates with s~~ious mental illnesses clearly
rises to the level of deliberate indifference to
the serious mental health needs of the
inmates...." At 1550: Referrals to mental
health facilities are not "reasonably speedy."
The parties are directed (1553) to file a plan
to develop "sufficient and adequate mental
health housing facilities" to prevent the retention of seriously mentally ill prisoners in
lockdown.
Mental Health Care, Communication
of Medical Needs, Medical
Examinations, Staffing (1547): The defendants "lack a system and the psychiatric staff
to identify and evaluate female inmates with
serious mental illnesses when those inmates'
come into the system," resulting in unqualified security staff identifying seriously ill inmates. The defendants have a policy of review
of records upon transfer between facilities,
but the policy is not routinely carried out
because of staff shortages.
Therefore, seriously mentally ill male
andfemale inmates do not receive
treatment until they request treatment
or regress to the point that security staff
recognize the illness or lock them down
for the behavior caused by the mental
illness. Thus, mentally ill inmates are
unable to make their problems known
to staffand their constitutional rights
are violated.
Mental Health Care-Staffing,
Financial Resources (1547): The lack of
adequate mental health staff, caused partly by
the legislature's failure to provide funding,
results in a constitutional violation. At 1548:
"... [L] ack of funding is not a defense to
eighth amendment violations." At 1548 n.6:
"Budgetary constraints are not a defense to
liability for deliberate indifference to
inmates' serious medical care needs." At
1553: The parties are directed to file a proposed plan to provide for sufficient numbers
of qualified mental health staff and provide
for recruitment and incentives to assure that
defendants can fill their positions.
Psychotropic Medication (1549): The
defendants fail adequately to monitor the prescription of psychotropic medication; instead
of haVing them seen monthly by a psychiatrist,
SPRING 1994

13

they prescribe, continue and discontinue
medication without face-to-face evaluations.
They also lack a system of insuring that
inmates take medications. At 1553: The
defendants are required to develop written
policies governing medications.
Mental Health Care, Women, Equal
Protection (1550-51): Disparities in mental
health care between men and women violate
the women's equal protection rights under
the "parity" test. The court cites the lack of a
long-term psychiatric hospital for women, the
lack of a "progressive unit" for women, and
disparities in programs. (The men got better
access to occupational therapy, plus computer training, communication training, stress
management and anger control; women got
"aerobics, board games, movies, and 'Women
Who Love Too Much.' ,,)
Injunctive Relief, Financial Resources
(1551-52): The basis for injunctive relief is
irreparable injury and the inadequacy of legal
remedies. The harm to inmates is continued
mental illness, resulting in fear and in some
cases self-mutilation. "On the other hand, the
only harm to defendants is additional costs to
hire staff and implement programs." The
court directs monitoring and reporting on
medical care improvements and enhancements in mental health staffing and facilities.

Law Libraries and Law Books
Casey v. Lewis, 834 F.Supp. 1553 (D.Ariz.
1992). At 1566:
The prison may preclude physical
access to segregated inmates if such
access would interfere with institutional security. . .However, if the state deniedphysical access to the law library,
the state must prOVide that prisoner
with legal assistance. ...
A "paging system, " in which a prisoner who is denied direct access to the law
library is allowed to request that legal
materials be brought to his or her cell,
does not provide adequate access to the
courts. ...
'"
Untrained prisoner
legal assistants
cannot provide constitutionally sufficient access to the courts for prisoners
denied access to a law library. ...
At 1567: "To provide adequate access to
the courts, a law library must be staffed by a
person with adequate legal training; a law
library staffed only by security officers
untrained in legal research and writing is not
sufficient." (Footnote omitted)
At 1567-68: "Indigent prisoners must be
provided sufficient legal supplies and services
to ensure meaningful access to the courts...
Apolicy which forces inmates to choose
between purchasing hygienic supplies and
essential legal supplies is unacceptable." The
defendants' definition of indigency as less
14

SPRING 1994

than $22 in the prisoner's account at the time
of the request is inadequate because it is not
based on the actual cost of hygiene items.

DisabledlFinancial Resources
Casey v. Lewis, 835 F.Supp. 1569 (D.Ariz.
1993). At 1581: "Disabled inmates must be
prOVided with physical accommodations necessary because of their disabilities, including
adequate toilet and shower facilities....
Further, mobility impaired inmates must be .
provided with wheelchairs and other mobility
aids.... Disabled inmates are also entitled to
rehabilitative therapy." The duration of a
challenged condition is relevant to the existence of a constitutional violation. "The cost
or inconvenience of providing adequate facilities is not a defense to the imposition of a
cruel punishment." (1582, citation omitted)
After the filing of the lawsuit, the defendants established a plan that, if fully implemented, would meet Eighth Amendment
requirements by providing adequate facilities
at one unit of each prison and concentrating
mobility impaired inmates there. However,
voluntary cessation of allegedly illegal conduct does not moot the case. Since many renovations had been delayed for funding reasons, the plan had not "completely and irrevocabl[y] eradicated the effects of the alleged
violation." (1582)
Aconsistent pattern of delays in providing
hearing aids violated the requirement that
referrals to outside care be "reasonably
speedy," although the plaintiffs did not prove
any resulting harm.
NON-PRISON CASES
Discovery
Siegfried v. City ofEaston , 146 F.R.D. 98
(E.D.Pa.1992). The records of employmentrelated psychological examinations of a
police officer accused of misuse of force are
not protected by the psychologist-patient privilege because it was understood that the psychologist would report back to the police
department. Even if the privilege existed in
this case, the plaintiff's need for the information outweighs the officer's privacy interests.
The court orders the material produced first
in camera and urges the parties to agree to a
protective order.
The officer's records are not protected by
the executive privilege, which "is designed to
protect only documents whose disclosure
would so seriously hamper the operation of
government that they should be kept secret
notwithstanding their utility in establishment
of a litigant's claim." (101)
Discovery
Hampton v. City ofSan Diego, 147 F.R.D.
227 (S.D.Cal. 1993). Personnel files and

internal affairs histories of defendant police
officers are relevant in a police misconduct
case.
At 229:
Information contained in these files
may be relevant on the issues ofcredibility, notice to the employer, ratification by the employer and motive ofthe
officers. Further, information concerning other instances ofmisconduct may
also be relevant on the issue ofpunitive
damages, in that the information may
lead to eviden~e ofa continuing course
ofconduct reflecting malicious intent.
The sameJiies as to non-party officers
may be relevant to plaintiffs' claims
against the City as related to its policies
ofhiring, training, supervision and
control. In addition, such information
may be relevant to the non-party officers' credibility and their willingness to
intercede during instances ofalleged
improper conduct offellow officers.

DisabledlExhaustion of Remedies
Finley v. Giacobbe, 827 F.Supp. 215
(S.D.N.Y. 1993). State law notice of claim
requirements do not apply to claims under
the Americans with Disabilities Act. There is
no administrative exhaustion requirement for
claims under Title II of the ADA.
Discovery
Hall v. Clifton Precision, 150 F.R.D. 525
(E.D.Pa. 1993). Alawyer and witness do not
have the right to confer during a deposition
except to determine if a privilege is to be
asserted, even if the conference is initiated by
the witness.
FEDERAL RULES DECISIONS
Judicial DisengagementIMonitoring
and Reporting
Celestineo v. Singletary, 147 F.R.D. 258
(M.D.Fla. 1993). The court issues a final
judgment "closing" the statewide Florida
crowding and medical care litigation, Le.,
vacating previously imposed injunctions and
relieving class counsel, the Special Master
and the Monitor of further responsibilities,
leaving open only any issues concerning
attorneys' fees. (The list of vacated orders
does not appear exclusive, but there is no
explanation for this.) Class counsel agreed
that the defendants were in substantial compliance with the previously imposed injunctions, but expressed concerns about the
defendants' future performance. The defendants "affirm[ed] that the Defendant and the
state remain committed to the orders previously entered, to the Agreement of May 1991
[not described], and to the [Correctional
Medical Authority] as an independent and
THE NATIONAL PRISON PROJECT JOURNAL

well-supported oversight and monitoring
prison medical authority."
The court describes the Correctional
Medical Authority (CMA) , which was created
by agreement codified in state statute and
which has substantial oversight powers, the
right to pursue its position with the Florida
Cabinet, and to enforce Cabinet decisions in
state court. It notes that the CMA has an
"indirect monitoring capacity" over the
overcrowding agreement through its oversight of the Office of Health Services, which
must certify housing for occupancy. The
court presents the CMA as an innovative
solution that provides assurance that "gains
accomplished through litigation will not
erode in the near term" (262) and that permits "satisfactory withdrawal of federal
supervision." (263)

Modification ofJudgments
Inmates ofSuffolk County v. Rufo, 148
F.R.D. 14 (D.Mass. 1993). On remand from
the Supreme Court, the district court declines
to modify an injunction requiring singleceiling in the jail to permit double ceiling.
Although it finds that the current sustained
rise in jail population was not foreseen, it
also finds that the single-bunking requirement was a "significant objective of the consent decree," that double-bunking would substantially increase the risk of violence given
the design of the cells, and that double-bunking would exacerbate the risks of transmission of tuberculosis.
At 21:
A refusal by government decisionmakers to appropriate more money is
not, without a reasoned and supportable explanation ofthe refusal, an
excuse for noncompliance with the consent decree. The decision as to whether
the consent decree should be modified
cannot be determined by a standard
that considers only how well the Sheriff
peiforms with the limited resources
made available to him by other official
decisionmakers.
. . . A continued and unexplained
failure ofother public officials to provide resources consistent with maintaining the terms ofthe consent decree
is not one ofthe identified changed circumstances justifying modification
when no proffer ofany justification for
the failure has been made.
This "central deficiency" in the Sheriff's
argument is supplemented by another "core
deficiency," "the failure to identify and evaluate, in comparison with the extensive doublebunking program the Sheriff proposes, alternative uses of the limited resources that have
been and foreseeably will be available to the
Sheriff." (22)
THE NATIONAL PRISON PROJECT JOURNAL

"Dear Prison Project..."
Dear Plison Project:
There has been a lot of talk recently
about restricting or even prohibiting,
smoking in prison. May smoking be .1
banned entirely in a plison? Isn't that
cmel and unusual punishment?
Worried smoker
Dear Smoker:
In light of the 1993 Supreme Court
case Helling v. McKinney, 113 S.Ct.
2475, which held that an inmate's exposure to environmental tobacco smoke
may constitute cmel and unusual punishment, many correctional institutions are
restricting or prohibiting smoking in
order to protect themselves from liability
against an Eighth Amendment claim.
Although there is little case law on the
constitutional right to smoke in prison,
the courts that have heard the issue have
agreed that there is no such right. Courts
have upheld restrictions on smoking in
disciplinary segregation and visiting
areas, and complete prohibitions on
smoking in county jails for convicted
inmates and pretrial detainees.
The courts generally hold that a prohibition on smoking is not punishment
(and thus not cmel and unusual punishment) as long as the policy is not "arbitrary, purposeless or intended to punish." Doughty v. Board ofCounty

Comm'rsfor County ofWeld, Colo.,
731 F. Supp. 423, 428 (D. Colo. 1989);

Reynolds v. Bucks, 833 F. Supp. 518,
520 (E.D. Pa. 1993). Courts have found
several legitimate government objectives
that are furthered by a no smoking policy. For example, a no smoking policy
prevents damage to the jail, allows
guards to smell other contraband, protects the health of smoking and nonsmoking inmates and staff, and eliminates the costs related to smoking. Thus,
it is doubtful that any court will find the
policy to be purposeless or intended to
punish. In Reynolds v. Bucks, 833 F.
Supp. 518 (E.D. Pa. 1993) the court
upheld the ban on smoking by inmates,
even though guards were allowed to
smoke in designated areas. It is possible
Use of Force/Evidentiary Questions
Eng v. Scully, 146 F.R.D. 74 (S.D.N.Y.
1993). Both parties filed motions in limine
concerning the use of their prior records in a
use of force case.
The plaintiff's disciplinary record may not
be admitted to show that he intended to commit an assault or to rebut any claim that his

that some policies could be applied s
arbitrarily that the policy violates the
constitution. For example, allowing
but not women to smoke in prison
create a Fourteenth Amendment equ
protection claim.
Courts tend to encourage medical
assistance to cope with the withdra
from nicotine, but it is not an absol
requirement ilnless an inmate is s
ing from a me'dical necessity other
the need for "adjustment assistance.
Doughty, the court held that the no
smoking policy did not violate the cr
and unusual punishment clause in li
of the fact that the jail offered couns
ing, medical assistance and a video t
to help inmates quit smoking. The co
stressed that "ideally" the jail should
assist the inmates to cope with the
ing policy. In Washington v. Tinse
F. Supp. 504, 508 (S.D. Tex. 1992),
guards, but not the inmates, were pr
ed medical assistance. The court fou
that the inmates were not similarly si
ed to the guards and therefore not
tled to the same treatments. The go
ment had a legitimate interest to su
medical assistance to the guards in
to maintain a full, productive staff.
The reality of the situation is that
ons will be more difficult to mn if
inmates are suddenly prohibited
smoking. For example, in July 199
State of Vermont imposed a compl
ban on smoking in prison. As a res
inmates were being assaulted as the
price of a pack of cigarettes rose to
much as $40 on the black market.
five months, the prison allowed smo
outdoors in designated areas. It is p
bly best for everyone involved to pr
medical assistance to help inmates
smoking and/or to allow smoking in
ignated areas, but it is not required
the Constitution.

This issue's "Dear Abby" is Georget
University law student Stephanie
Morris, who is currently workingat
Prison Project.
actions were provoked, since the plaintiff's
intent or motive is not relevant to the Eighth
Amendment legal standard. Nor may the disciplinary record be used to attack credibility.
The plaintiff's 1967 murder conviction was
too old to be used for impeachment because
the plaintiff was released from prison in
1972; the fact that his parole was revoked did
SPRING 1994

15

matter. His 1977 murder conviction was
the ten-year limit of Rule 609 (a) (1)
he is still in prison for it, but the
court excludes it. At 78: "Murder is not necessarily indicative of truthfulness, and the
probative value of a murder conviction is substantially outweighed by the danger of unfair
prejudice." His 1979 escape conviction was
barred by the ten-year time limit because he
finished the sentence for it in 1981. Escape is
not a crime of dishonesty or false statement.
Evidence of prior incidents between the
plaintiff and prison staff were relevant to the
knowledge, motive and intent of the defendants, including the officers in their dealings
with him and the Superintendent's knowledge
of any danger to his safety.
Prior unusual incident reports involving
use of force by the defendants are admissible
without a preliminary finding by the court as
to their truthfulness and regardless of
whether the defendants were convicted of
using excessive force.

Discovery/Medical Records
jackson v. Brinker, 147 F.R.D. 189 (S.D.
Ind. 1993). At 193-94: "The scope of material
obtainable by a Rule 45 subpoena is as broad
as permitted under the discovery rules."

16

SPRING 1994

State statutes and regulations do not bar
the disclosure to the plaintiff of his medical
records, and even if they did, the state privilege would not have sufficient "intrinsic
merit" to be applied in federal court. The
state argued that its law forbade release of
these records without a court order and that
it would not object to the court's issuing an
order; the court describes this conduct as "a >
waste of this Court's and litigants' time."
The court gives the defendants another "
chance to supplement its "thin and non-spe;:
cific showing" of privilege concerning the
allegedly confidential portion of the plaintiff's
prison packet.
The defendants' claim that they do not know
what "incidents" the plaintiff is seeking documents about has no merit, since with one exception they could find out by reading the complaint.

Evidentiary Questions
Lewis v. Velez, 149 F.R.D. 474 (S.D.N.Y.
1993). The plaintiff's disciplinary record was
inadmissible in a use of force case to show a
propensity for violence. It was not relevant to
the plaintiff's intent if he claimed selfdefense, since his intent to defend himself
would be admitted, and the jury issue would
be who struck the first blow. The disciplinary

record is not admissible to impeach credibility, absent testimony on his part giving a misleading impression of his behavior, because
the infractions do not reflect dishonesty or
deceit.
Incident reports and related documents are
not properly business records because they
record their employees' self-serving versions
of incidents for which liability could be foreseen. In addition, at 486:
Where reports ofinmate beatings
show a lack ofreliability and trustworthiness due tfNhe self-interest ofthe
correction officers responsible for the
records, such records are inadmissible..
.. Self-interest functions strongly in the
case at hand, where correction officers
involved could be subject to disciplinary
action, including dismissal, for using
excessive force . .. and could, furthermore, be brought up on criminal
charges or incur civil liability.

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

THE NATIONAL PRISON PROJECT JOURNAL

MEDICAL CARE· con't.frompg. 2

fee, nor that prison officials denied medical care to other prisoners who are indigent. "The complaint alleges no facts
which the court could construe as deliberate indifference...." Id at 408. This case
plainly fails to reach the issue of payment
despite the claims of payment
proponents. 2
Apolicy in Louisiana of charging prisoners for over-the- counter medications was
challenged recently by the National Prison
Project in Hamilton v. Morial. The New
Orleans sheriff instituted a policy whereby
prisoners would be charged for 20 overthe-counter medications such as Tylenol,
vitamins, ibuprofen, Sudafed, etc. The
drug would be dispensed at sick call and
the prisoner told that his commissary
account would be debited the cost shown
on the medication. He could either accept
the charge and the drug, or refuse the
drug. If he did not have enough money, the
drugs would still be given, creating a negative balance in his account. The district
court ordered the sheriff to stop charging
prisoners for OTC medications. If the sheriff was having financial trouble with maintaining the pharmacy, the court said, he
should seek redress with the city, not
impose costs on the prisoners.
Better management of medical
services is the answer
The real point of the payment policies is
not to offset the expense associated with
the delivery of health services, but to
reduce the number of prisoners who
attend sick call. Newly implemented
department-wide policies in Indiana and
Montana bear this out. Aprisoner submits
a request for medical attention, otherwise
known as a "kite." Health officials return
it, without seeing the prisoner, with
instructions to purchase an OTC medication from th~ commissary. Through this
measure, sick call attendance has been
reduced dramatically, without regard to
whether the prisoner has any money in an
account. In Montana, an indigent prisoner
may resubmit a kite pointing out a lack of
funds. After considerable delay, the medicine will be supplied. In Indiana no such
allowance is made. Prison officials there
take the position that they have no constitutional duty to attend to "non-serious"
medical needs. Yet such a policy ignores
the fact that without proper treatment, a
"minor" condition could become serious,
2

See also another inconclusive case from Nevada,

Scott v. Angelone, 771 F.Supp.l064(D.Nev.l99),
affd. 980 F.2d 738 (9th Cir.1992).
THE NATIONAL PRISON PROJECT JOURNAL

and be prevented altogether with prompt
attention. Such a gross inattention to medical needs threatens prisoners' Eighth
Amendment right to medical care.
If the current sick-call process is
unmanageable at a particular institution,
prison administrators should manage it

better or provide additional resources so
that the required care is maintained. The
appropriate response is to provide additional clinics, not to reduce prisoner
access. This view is consistent with the
analysis offered by B. Jaye Anno, secretary
of the National Commission for
Correctional Health Care. Writing about
prisoner payments in a book published by
the National Institute of Corrections, U.S.
Department ofJustice, she says:
...It begins with ensuringfull and
unimpeded access to the primary
level ofthe prison's health care delivery system. Here the prisoner typically encounters a nurse... or other
clinically trainedperson who listens
to the complaint and evaluates the
extent ofneed. Once the prisoner has
"entered" the delivery system, all
referrals to more specialized and
more costly levels ofcare should be
the decisions ofprofessional staff
based on an objective assessment. In
this way the relativelyfew persons
who choose to abuse sick call regularly will not impose significant
monetary costs on the system... 3
As to any anticipated cost savings, she
adds:
[EJstablishment ofa co-payment
system also may be viewed as a
means ofgenerating revenue, but
fees high enough to generate appreciable revenues will inordinately
reduce utilization. Moreover, the cost
ofcollecting the co-payments is not
insignificant and might well exceed
any revenue generated. Therefore,
the only possible economic benefit
would resultfrom decreased utilization. 4

To summarize, the various arguments
raised to support payment policies all fail
in light of the corresponding duty of the
correctional system to provide for the
medical care of its prisoners. Apayment
policy not only discourages the few who
abuse sick call from attending, it also discourages those prisoners with legitimate
medical concerns. Additionally, under no
circumstances should the State be permitted to pass on the costs of medical care to
prisoners by enforcing a fee policy. If that
were allowed'there would be no end to
the costs the State might seek to recover
from the prisoners and their families.
Once prisoners have been deprived of
their livelihood, it is incumbent upon the
State to provide life's basic necessities, the
most basic of which is medical care. See
DeShaney, supra, 489 U.S. at 197-200. •

Mark Lopez is a senior staffattorney at
the Prison Project where he has worked
for seven years. Kara Chayriques is a
law clerk at the Prison Project.

3 B.]aye Anno, Prison Health Care: Guidelinesfor
the Management ofan Adequate Delivery System,

NlC, DO] March 1991, p.234.
SPRING 1994

17

,.. . . . te
Prisoners with HIV/
AIDS need services
after discharge
or prisoners with HIV/AIDS the lack
of a comprehensive discharge plan
can be a blueprint for failure. In
some cases prisoners with HIV/AIDS
unable to find treatment and services on
the outside recidivate in order to receive
medical care. California Department of
Corrections' statistics for 1992 showed a
recidivism rate of 70% for prisoners with
HIV/AIDS compared to 52% for HIV-negative prisoners. Programs developed by
community based organizations and parole
departments in California and New York
are creating models to decrease recidivism
rates and assist prisoners with HIV/AIDS in
their transition back into the community.

F

California-collaborative efforts
The Correctional HIV Consortium
(CHC) receives five to ten letters a day
from prisoners in California regarding
discharge planning. CHC begins the discharge process 120 days prior to release
in cases identified by social workers. CHC
sends an application form to the prisoner
in order to obtain information on parole
county, housing, and medical assistance
needs. Amont~ later CHC staff arrange a
collect call with prisoners to discuss any
changes. TWrty days before the scheduled
release date CHC sends a final discharge
letter, indicating the agency providing
case management, the address and directions. CHC also calls the case manager
after the scheduled appointment to confirm that the client has reported.
Michael Haggerty,Executive Director of
CHC, sees comprehensive discharge planning as critical. "If folks don't receive everything within the first 36 hours there's this
feeling of panic and urgency. So it's important to have all services lined up. If this isn't
done people disappear immediately.
"The release of medical records can be
a problem also," says Haggerty. "Some
18

SPRING 1994

institutions see us as a potential litigant
Not enough people work on the paper-,
work. It's not an overall issue of cooper{J.tion, but that people in the correctional
system are overloaded."
Acollaborative effort between Advocates for the Incarcerated of Los Angeles
County and the correctional staff at the
California Mens' Facility in CWno created
a Pre-Release Planner position on site.
Roland Souza, Pre-Release Planner with
the Tarzana Treatment Center, identifies
prisoners at least 90 days before their
release date to begin linking them to community resources. Services include referrals to substance abuse treatment, medical treatment, mental health resources,
transitional housing and public benefits
along with case management. Souza and
social work staff also facilitate a support
group to help prisoners handle the crisis
of leaving the prison community.
According to Art Downs, Program Director at CMF-Chino, the recidivism rate
among prisoners with HIV/AIDS at CWno
was 99% a few years ago. But collaboration with the Tarzana Treatment Center
and other organizations has decreased
that figure. Souza feels recidivism can be
decreased in other ways. ''I'd like to see
more programs that could build prisoners' self-esteem to think they can be successful on the outside. We also need to
use former prisoners who've navigated
life on the outside to be role models."
Says Downs, "We need to welcome organizations that have resources and programs to offer inmates. Community organizations and correctional systems should
be close partners because we can help
each other."
New York institutionalizes
the process
In 1991 Terri Wurmser, Parole Services
Program Specialist at the New York State
Division of Parole, and her staff began to
formulate the Discharge Planning
Initiative. The program strives to discharge prisoners on time and link them
to community programs appropriate to
their needs. The policy classifies prisoners by four tracks, from those who
require basic care to those who have
intensive needs. For prisoners with

HIV/AIDS, planning means completing
applications for the AIDS Drug Assistance
Program, SSI, links to outpatient care,
local pharmacil~s, and multi-service agencies. Most appij,cations are completed
within two mo~ths, while others may
require more time. The process involves
collaborating with Department of Corrections' staff and many community based
organizations.
Wurmser offers the following advice to
community organizations doing discharge
planning: "If you tWnk you're doing a
good job with your client but are not
working with parole you're deluding
yourself. We need to work collaboratively
to supplement, not duplicate, efforts."
Wurmser also feels greater attention
needs to be focused on women and family
issues. Additionally she sees more efforts •
needed toward staff training.
The Women's Prison Association links
women prisoners with HIV/AIDS to community resources through its Transitional
Services Unit. TSU is either on site or makes
monthly visits to New York State facilities
housing women prisoners. Working with
women three to six months before release,
TSU establishes a relationsWp that will continue after release. The service plan is created by TSU staff and prisoners to Wghlight
the most immediate needs. TSU also works
in partnersWp with ACE-OUT, a peer-support network founded and run by former
prisoners. When a woman with HIV/AIDS is
released, an ACE-OUT buddy will pick her
up, take her to meet the parole officer, and
provide emotional support.
Since 80% of the women TSU serves are
mothers, discharge planning includes
reconnecting women with their cWldren.
Yvonne Soto, Transitional Services Unit
Manager, describes additional problems,
saying, "The biggest problem is transitional housing, since only women with fullblown AIDS can receive emergency housing. If a woman is HIV-positive or HIVnegative she may end up in a shelter and
later become further immune-compromised or HIV-positive. We need more
funding for transitional rather than permanent housing." •

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

ublications
_ - - - - L_ _

Bibliography of Material on
Women in Prison

AIDS in Prisons: The Facts
_---'---_ for Inmates and Officers is
a simply written educational tool
for prisoners, corrections staff,
an~AIDS service providers. The
bo~kIet answers in an easy-tore~d 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.

lists information on this subject
available from the National P~ison
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.

_---'----_ 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.
$2Iyr. to prisoners.

_----L__

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

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.

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.

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]anuary 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

THE NATIONAL PRISON PROJECT JOURNAL

QTY. COST

ACLU Handbook, The
Rights of Prisoners. Guide to

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

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

QTY. COST

(order
from
ACLU)

City, State, ZIP

_
_
--,SPRING 1994

_
19

1

hefollowing are major developments in the National Prison
Project litigation program since
January 31, 1994. Further details ofany
ofthe listed cases may be obtained by
writing the Project.

T

john A. v. Castle-This case, filed in May
1990, challenged the 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. plaintiffs
complained of bad living conditions, physical and verbal abuse, inadequate medical
care and inadequate education and access
to courts finally resulted in a settlement
agreement, and, almost simultaneously, the
Governor announced plans to raze Ferris
School and replace it with a new facility.
The comprehensive settlement tentatively
approved by the court addresses in detail
virtually every aspect of the complaint and
provides for a three-year monitoring period. The agreement commits the state to
sweeping reforms in the areas of medical,
dental, and mental health care; classification, programming, education, discipline
and restraint; and environmental health and
safety.
Hadix v.johnson-The National Prison
Project appears in the medical and mental
health care portion of this conditions of
confinement case at the State Prison of
Southern Michigan in Jackson. On the eve of

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

inspections of the prison's health care by
experts, the defendants announced that they
would not allow review of medical records.
without individual releases from prisonerS:
The judge subsequently ruled that our
experts were entitled to review the records
and awarded discovery sanctions against the
defendants. The judge also rejected defendants' jurisdictional challenge to enforcement motions while the judge's previous
orders were on appeal to the Sixth Circuit.
Palmigiano v. Sundlun challenges
prison overcrowding and conditions in
Rhode Island. The entire state prison system
was declared unconstitutional in 1977 and a
Special Master was appointed. The remedial
order dealt with overcrowding, idleness,
violence, classification, medical and mental
health care, and environmental health and
safety. During the years since then, defendants have consistently been found in contempt of court-ordered population caps. In
1992, after lengthy negotiations with the
NPp, the Governor created an overcrowding
commission which recommended a statutory scheme for permanently controlling the
prisoner population at certain agreed-to
limits. This legislation was passed by the
Rhode Island legislature during the spring
of 1993. Negotiations to settle the case were
held throughout 1993 and into 1994. On
March 18, 1994, an agreement was signed,
providing for permanent population caps on
every Rhode Island jail and prison, male
and female, and for a review of current

compliance in other areas by outside monitors and plaintiffs' counsel. If there is a finding of continued substantial compliance, the
orders dealing with issues other than population will eventu~y be dismissed.
.,)
Spear v. Waih.e,e-The new agreement in
the Hawaii prison conditions case received
court approval in November. The compliance monitoring tour that took place in
February included a visit to the newlyopened women's prison, a well-equipped
modem facility that replaces the old Hawaii
Women's Correctional Facility where condition so appalled NPP attorneys on their first
visit in 1984. Then they found inmates at
the women's prison crammed into doublebunked dormitories with beds literally only
inches apart. Adayroom allowing less than
ten square feet for each of the approximately 90 women in the main facility was
used for almost every function including
meals, visits and recreation. Hot water was
rare and toilets, sinks, and showers were
in short supply. Medical care and food services likewise fell below any acceptable
standards. Most egregious was the dungeon-like Detention Unit where cells were
so small that no bed would even fit.
Plumbing leaked and ventilation and lighting were substandard. Suicidal and mentally disturbed women were housed in these
tiny cells. Fire hazards were numerous.
The final closing of this grim place provided a measurable result to a decade of work
in Spear. •

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SPRING 1994

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