A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 9, NO.3, SUMMER 1994 • ISSN 1"Q76-769X

No EqualJustice Under the Law in India---or the u.s.
The following remarks were presented at
the International Conference on Prisons
and Punishment in New Delhi, India,
March 3-5, 1994.
No Equal Justice
am an advocate and, as such, my role
is to challenge the complacency,
actions and inactions of my colleagues
wherever I am. My purpose here is to
make you feel and think deeply, not to
offend you. I want to focus on what I
believe is the most fundamental and serious problem in all of the criminal justice
systems I know anything about, and that is
unfairness and inequality. I will do that by
talking primarily about the United States,
the system I know best.
In both the United States and India,
much homage is paid to the idea of the
balance of the scales of justice-equality
under the law. In the U.S., justice is supposed to be "blind," meaning, of course,
that all will receive equal treatment regardless of color, economic status, or
background.

I

Equal justice under the law is a myth
and a lie. Unequal justice is the reality. I
know of no criminal justice system that
comes close to providing equal justice
under the law. Certainly not the criminal
justice system in the United States and certainly not the system in India.
If you look closely, you will find the
gross inequality that exists in the American
criminal justice system. Our criminal justice and imprisonment systems are used
primarily and almost exclusively as a

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Left to right: Professor Ravindeer Kumar, director of the Nehru Museum; Justice
Krishna Iyer, former Chief Justice, Supreme Court of India; Alvin J. Bronstein,
executive director of the National Prison Project.

means of controlling poor people (the
underclass), people of color, and our
indigenous populations. We are not alone,
as the following examples suggest:
• In Canada you will find the government uses the criminal justice system
disproportionately against the native
and aboriginal populations;
• Tony Peters, the Belgian criminologist,
has pointed out that while only 9% of
Belgium's total population is nonBelgian, non-Belgians make up 37% of
its prison population. He describes the
non-Belgians as primarily Moroccans,
other and North Africans and Thrks;
all of them, not coincidentally, people
with dark skin;
• Peter McKinlay, the former head of the
Scottish Prison Service, tells us that it
is the poor underclass, "the lads from
the public housing projects who face

dead-end jobs," who are filling the
prisons of Scotland;
• Duncan Chappell, an Australian criminologist, has told us that aboriginals
make up 1% of the general population
in Australia but over 14% of the prison

population. Indeed, looking at a onemonth picture (August 1992), 28.6%
of all persons taken into police custody
were aboriginals;
• In India, there are three classes of
prisons and offenders are sentenced to
a particular prison based upon their
wealth, status and influence, not on
their criminal behavior.
Today in the United States, we have about
one and one-half million people in our
jails and prisons. Over 99% of them are
poor and 50% are people of color. One
out of three black males between the ages
of 20-29 in the State of California are in
prison or on parole or probation. In the
city of Baltimore, 50% of black males
between the ages of 16-35 are in prison,
jail or on some form of restriction (bail,
parole, community custody, etc.). In our
nation's capital the figure for that same age
group is 42%.
Duncan Chappell, in a paper delivered to
the 27th Australian Legal Convention, recalled the discussion on these issues at an
earlier symposium:!

that ofthe [former] Soviet Union's. The
USSR had been severely criticized by
Western democratic nationsfor its policy
ofkeeping dissident citizens in Siberian
and other labor camps but the United
States was incarcerating in its prisons an
equivalent underclass ofblack and other/
dispossessed minority groups.
~:
The point is, then, how can we talk
about models and values for the future of
corrections without first addressing th\:l '.
problems in our society? Or is it possible
that our society needs the poor, the people
of color, the permanent underclass, in
order to sustain our criminal justice systems and our corrections systems? If we
acknowledge, as we must, that there is no
fairness and equality under and before the
law in the criminal justice systems of most
North American and Western European
countries, how can we participate in the
travesty known as criminal justice and corrections? How can we sit around and discuss the use of the private sector, what
works in conventional programs, correctional personnel and professionalism, the
role of the media, standards and accountability, and all the rest?
The Correctional-Industrial Complex
The Canadian sociologist and former
criminal justice and corrections official,
Lorraine Berzins, recently challenged the
entire concept of punishment under contemporary criminal justice systems: 2

The United States prison crisis prompted some sharp exchanges between
North American and European participants at the Ottawa symposium. Like
their North American counterparts the
Europeans have experienced significant
increases in the number ofoffenders
being dealt with by their criminaljustice systems...,..
The true sentencing dichotomy revealed
at the Ottawa symposium among North
American andEuropean participants was
in reality an ideological split between the
two continents regarding the severity of
punishment to be imposed upon offenders. Speaking about this issue at the
Symposium, the distinguished Norwegian
criminologist, Nils Christie, sparked the
wrath ofmany ofthe United States participants by suggesting that their ideological views hadproduced apunishment
system which was not so dissimilarfrom
1 Professor Duncan Chappell, Sentencing of
Offenders: A Consideration ofthe Issues of
Severity, Consistency and Cost, Adelaide, (1991).

2

SUMMER 1994

An overwhelming body offindings
from the fields ofsocial and modern
physical sciences has shown that the
imbalance ofpower and wealth in
our society has led to inequities.
These inequities have been rationalized by those who have the power to
produce our ideological theoriestheories that define what is "right. "
Within eXisting social contexts,
many people are left at the mercy of
the social ethic ofthe dominant
group-those with the power to define for everyone which interests are
valuable, whose interests are valuable, and what rights are valuable.
Degrees of"blameworthiness" become very difficult to judge given the
imbalance ofpower and wealth.
Assigningproportional ratings is not
possible and the end result is thejustification ofthe oppression ofone
group by another....
The high collateral costs ofthis outcome, both financial and human,
2 Lorraine Berzins, Is Legal Punishment Right? The
Answer is No., NPP JOURNAL, Vol. 8, No.2, (Spring
1993), pp. 17, 18.

serve ultimately the interest ofno
one at all, save perhaps the industry
that has grown up around it.
The inescapable conclusion: pun~hmentcannotbeproportionaland

therefore cannot be justified.
Nils Christie has written extensively
about what he refers to as "the phenomena
of the economy of penal measures."3 He
has argued that, for some people, prisons
pay. "With private prisons we build into the
system a strong growth factor.,,4 This is no
minor factor in the United States and our
corrections "professionals" are part of the
problem.
For example, at the American Correctional Association's annual Congress last
year, the conference program contained
276 pages, 153 of which were devoted
entirely to advertisements (new kinds of
razor wire, restraints, various services, the
(cont'd on page 17)
3 His latest book, which examines the economic
incentives behind prison growth, should be reqUired
reading for everyone in the criminal justice field.
Crime Control as Industry: Towards Gulags,
Western Style?, University of Oslo Press, (1993).
4 Nils Christie, The Eye ofGod, Ottawa, (1991).

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 Natianal Prison Project is a tax-exempt foundatianfunded proiect of the AClU Foundation which seeks to
strengthen and protect the rights of adult and iuvenile

offenders; to improve overall conditions in correctional
facilities by using existing administrative, legislative and
iudicial channels; and to develop alternatives to

incarceration.
The reprinting of JOURNAL material is encouraged with
the stipulation that the National Prison Project JOURNAL
be credited with the reprint, and that a copy of the reprint
be sent to the editor.
The JOURNAL is scheduled for publication quarterly by
the National Prison Project. Materials and suggestions

are welcome.

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

~II

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Agreement Reached in Rhode Island Prison Case After 17 Years
n 1974 a Rhode Island prisoner
named Nicholas Palmigiano filed suit
in federal court claiming that conditions in the Adult Correctional Institutions
(AC!) violated the Constitution's ban
against cruel and unusual punishment. The
case finally started to wind down in March
of this year-20 years after it began-with
the signing of an agreement which followed nearly three years of negotiations.

I

Palmigiano v. Sundlun! has a lengthy
and complex history. After an extended trial
in 1977, evidence presented by plaintiffs'
lawyers from the National Prison Project of
the American Civil Liberties Union Foundation convinced U.S. District Court Judge
RaymondJ. Pettine to declare the entire
Rhode Island prison system unconstitutionI Bruce Sundlun is !he curren! governor of Rhode
Island and has inheri!ed !he role of lead defendant.
The case has a! various limes been called Palmigiano v. Noel, Garrahy, and DiPrete.

The follow
length an
• Out of the original.
and one (Palmigian
gram after testifying
• The entire pre-trial .
of trial was under 70
• In 1977, fourfacilifi
en's." Now Rhode IS1
"medium," "sped
en's," "women's
are more people
the entire prison sy
• Bronstein recalls tha
now there are three;
• This case has seen fou
directors, and a tot .
Attorney General's 0
Department of Co
• Plaintiffs have b
lawyers from
Bronstein. St

al. Over the course of the next 15 years, the
court found it necessary to resort to various
coercive measures, including modifying
orders, sanctions, and contempt citations in
attempts to force the state to meet its obligations under the Constitution. During those

A 1985 photo of prisoners housed in storage space-a practice prohibited
under the new agreement.
.

THE NATIONAL PRISON PROJECT JOURNAL

years, the court found that most of the
problems were attributable to overcrowding: in every instance, the court found that
overcrowding had a serious deleterious
impact on medical care and environmental
health and safety.
On January 10, 1991, Judge Pettine, who
had presided over the case from its inception and is now on senior status, held a
conference in chambers with all the parties
on the occasion of transferring the case to
U.S. District Judge Ronald R. Lagueux. In
his final order, Judge Pettine urged the parties, "Now is the time to institute safeguards that will forestall and hopefully prevent a recurrence of the past frustrating,
costly and devastating ills."
The parties have had a series of meetings
over the past three years. Negotiations to
reach the new agreement proceeded from
the parties' shared belief that existing compliance problems could best be resolved by
revising the compliance and monitoring
process to make it more efficient, and by
setting permanent population limits.
The agreement includes strong measures
to control future overcrowding and to
guarantee proper prisoner care and it
applies to existing as well as newly acqUired facilities. It states that" [a] reas not
designed and built for housing prisoners
SUMMER 1994

3

shall not be utilized for the housing of
prisoners. For example, prisoners shall
not be housed in corridors, dayrooms,
program space, office space, recreation
space or general purpose space." It also
prohibits double-ceiling in certain facilities and limits its use in others.
Governor Sundlun signed an Executive
Order in 1992 creating a Governor's Commission to Avoid Future Prison Overcrowding and Terminate Federal Court Supervision Over the ACI. The Commission was
charged with developing an action plan,
including legislation and policy initiatives,
for dealing with the state's prison population. On February 15, 1993 the Commission issued a detailed report setting forth
new approaches for the Rhode Island
criminal justice system and recommending
certain legislation. The Rhode Island General Assembly thereafter enacted legislation
providing for intermediate sanctions, and a

"Old Max," the building where maximum security prisoners are housed,
has been extensively renovated .

.Roberta Richman - changing women's lives
mong the many changes that have taken place at the ACI
since the lawsuit began, some of the most marked have
been at the Women's facilities where Roberta Richman
became warden in June of 1991. Ms. Richman took an unusual
career path to this job, beginning with a Master's degree in Fine
Arts, becoming an art teacher in prisons, running educational
and vocational services and then prison industries for all of ACI
before being appointed as warden by Director George Vose.
As warden, Ms. Richman has a very clear vision of what she
wants for the women in her care, tempered by a realistic view
of the limited resources available and the constraints of the system within which she operates. At the outset, she set herself
three goals:
1) to create a humane and safe institution environment conducive to treatment and rehabilitation;
2) to prepare women for transition back into the community
by providing sufficient educational, counseling and treatment opportunities;
3) to build partnerships with existing community agencies by
allowing them access to the incarcerated women and
sharing J;.esponsibility for their continued treatment and
support after release.
.
She stresses that there are differences between the situations
of incarcerated women and men. Most of the women have committed nonviolent crimes, have been victims of abuse all their
lives, have very limited life skills, and are mothers and primary
care givers to young children. Their sentences are usually short,
which means the time available to help them is limited.
Resources must be concentrated on preparing them for transition back into the community from the very first day they arrive.
Six months, an average sentence length, is not enough time to
do more than begin the process. The easy part is restoring physical well being, providing adequate nutrition, physical safety,
and detoxing from drugs and alcohol. The harder part is planning for continued care after they leave prison.
The ideal situation for most of these women, Ms. Richman is
convinced, would be placement instead in a community home.
4

SUMMER 1994

There they could receive help in a co
as long as they needed it and then m
own on the outside-knowing that
when life became too threatening or
temporarily to the more sheltered co
rent political climate makes such a r
next best thing, according to Ms. Ric
caring groups in the community who
prison so that when they leave they
system in place. At the same time co
pares the women to deal with the pre
face - groups meet to deal with issu
domestic violence, and parenting. Co
and children are encouraged with ext
informal setting of the recently create
Center. An intensive drug treatment
ed- 90 days in duration, holistic i
tured and restrictive-to be follow
work release or home confinement
responsible living after release. HIV
training takes place in weekly grou
mature women are trained to act as
wing; a mentoring program matches a c
with a women six months before herrel
ship continues as long as possible
grams are aimed at making long-ter
women face the world, giving them
resources to deal with the potentially
they will face when they leave prison. I
Richman is far too much of a realist to
She knows that much more is needed
training for available, well-paying jobs
economic independence and enable
lies in the community. She knows she
but she is doing an impressive job in
can, day-by-day, step-by-step, providin
that many of the women in her charge
THE NATIONAL PRISON PROJECT JOURNAL

Criminal Justice Oversight Committee that
would permanently control the state's jail
and prison population. 2
The process for ending court supervision of the ACI has three phases: first,
conditions at the ACI will be monitored by
a team of independent experts (monitors)
in medical services, environmental health
and safety, and inmate management and
programs. Second, after a finding of substantial compliance by the monitors, the
Department of Corrections (DOC) will
report to the court and plaintiffs' counsel
on its progress with compliance. (Reports
by monitors and by the DOC may be challenged by attorneys for the prisoners or
for the Department.) Third, once the
court finds continued substantial compliance with the new agreement, all of its
provisions will be vacated, except the popRhode Island has a unified corrections system;
the ACI has custody of pre-trial and sentenced
prisoners.
2

ulation controls, which will remain in
effect indefinitely.
If the new population caps are exceeded,
the Oversight Committee is empowered to
release prisoners early or to speed up the
parole process. Should the Committee fail
to act, attorneys from the Prison Project~'
may seek court intervention.

Only under certain specific conditions
and in certain facilities may prisoners be
double-celled: double-celled prisoners
must not be classified as maximum security; cells must adhere to the American Correctional Association standards on space
requirements; and any double-celled pris-

NPP Hosts Litigation Conference
n May 19 and 20, the National
Prison Project hosted a conference
on prison litigation. The 20 attorneys
who attended, some of them special masters
in prison cases, heard presentations and
took part in discussions on a number of
areas of current concern. John Boston of the
Prisoners Rights Project of the New York
Legal Aid Society talked about consent
decree modification and termination issues,
drawing on his experiences in the long-running New York City jails cases. There was
also discussion of the "exit scenarios" developed in the New Mexico (Duran), Hawaii

O

NPP staH attorney Mohamedu Jones
(left) talks with Jonathan Smith of
D.C. Prisoners' Legal Services Project
(right) between sessions.

THE NATIONAL PRISON PROJECT JOURNAL

(Spear), and Rhode Island (Palmigiano)
cases, and the implications for consent
decree modification of the Supreme Court's
Rufo decision. Modification of agreements
was addressed further in a session on the
implications of the current crime bill. The
proposed Helms/Canady Amendments on
"Appropriate remedies with respect to
prison crowding" includes a provision that
court orders and consent decrees should be
reopened for modification at a minimum of
two-year intervals. The proposed amendments also attempt to limit the use of class
action suits in Eighth Amendment cases
though there was a general sense that this
change would meet so much resistance from
judges, as well as litigators, that it was
unlikely to stand.
The conference also looked at alternatives to using the Eighth Amendment in litigating prisoners' rights. Elizabeth Alexander of the NPP introduced the session on
Statutory Causes of Action and talked about
the Individuals with Disabilities Education
Act as a means of bringing special education to incarcerated juveniles. Randy Berg
and Peter Siegel of the Florida Justice Institute discussed litigation under the recently passed Restoration of Religious
Freedom Act, which has already been used
successfully to challenge restrictions on
the religious practices ofJews and followers of the Santeria religion in prisons. The
Americans with Disabilities Act also seems

oner must be out-of-cell at least 10 hours
a day and have the opportunity for a wide
range of programs.
The state now appears to realize that it
cannot build its way out of its overcrowding problem. They recently closed their
old Medium Security Facility (known as
Special Needs) and are converting it into a
community reintegration facility.
Alvin J. Bronstein, lead counsel for the
prisoners and the executive director of the
ACLU National Prison Project, said of the
agreement, "The ACLU seeks to guarantee
that the state will achieve full compliance
with its mandates for constitutional prison
conditions and procedures in the near
future and do so in a manner that avoids
the protracted litigation of the last 17
years. We believe that the population limits
and self-monitoring and reporting process
applied to the Department of Corrections
under the new agreement, will assure that
the progress that has been made in the
Palmigiano case will continue." •

to offer a good tool for enforcing the rights
of disabled prisoners but there is still some uncertainty about how its provisions
will be interpreted by the courts.
The expense of using experts for prison
litigation, now that their costs are no
longer recoverable, prompted a debate on
ways to minimize that expense. While
there may be some ways to control costs,
it was generally felt that timely expert
tours are of such importance to the success of litigation that too much restriction
on their use would be counterproductive.
The best long-term hope is for legislation
to reverse the West Virginia Univ. v.
Casey decision.
AlvinJ. Bronstein, NPP director, who
chaired the conference, introduced the final
topiC-Public Advocacy on CriminalJustice
Policy Issues-with a question as to whether
the attorneys felt it warranted much discussion time. The answer to that question was
made clear by the longest and liveliest debate
of the conference. The participants saw influencing public opinion as key to the longterm changes they want in the current policy
of over-reliance on incarceration. If public
advocacy is to be effective, we have to give
policy makers at the state and national level
viable alternatives to imprisonment that they
can take to their electorate. Agreement on
that principle was easily reached -discussion on what those viable alternatives might
be and how they could be "sold" to the public, politicians, and policy makers was still
continuing without resolution when the conference reached its scheduled close. •
SUMMER 1994

5

~.

A PROJECT OF THE AMERICAN CIVIL L1BERTIe'S.UNION FOUNDATION, INC.
VOL. 9, NO.3, SUMMER 1994· ISSN 1074,769X

Highlights of Most
Important Cases
CRUEL AND UNUSUAL PUNISHMENT
For the fourth time in four years, the
Supreme Court has rendered a significant
interpretation of the Eighth Amendment's
cruel and unusual punishments clause in a
prison conditions case. In Farmer v.
Brennan, 62 U.S. Law Week 4446 aune 6,
1994), the Court vacated and remanded the
Seventh Circuit's summary dismissal of a federal prisoner's claim that prison officials
failed to provide her with adequate protection from violence by other inmates. For the
plaintiff, the decision provides another
chance at winning her case. For prison litigators, Justice Souter's majority opinion is a
decidedly mixed bag.
The plaintiff is a pre-operative transsexual
who has been housed in male institutions
even though she "projects feminine characteristics" and prefers to be referred to as
"she" or "her." (The Court carefully avoided
applying any personal pronoun to her in its
opinion.) She alleged that she was placed in
the general population of the United States
Penitentiary at Tel're Haute, Indiana, where
she was beaten and raped. She further alleged that the defendants acted despite their
knowledge that the penitentiary had a violent
environment and a history of assaults and
that she would be particularly vulnerable to
sexual attack.
The Court did not dwell on these unusual
facts but treated the case as invoking the
more general duty of prison officials to protect prisoners from assault by one another.
The Court noted that it had assumed, and the
lower courts have "uniformly held," that such
a duty exists. It stated:
... [H]aving stripped [prisoners] of
virtually every means ofself-protection
andforeclosed their access to outside
aid, the government and its officials are
6

SUMMER 1994

not free to let the state ofnature take
its course.... [G]ratuitously allowing
the beating or rape ofone prisoner by
another serves no "legitimate penological objectiv[e], " ... any more than it
squares with "evolving standards of
decency." ...
62 U.S.L.W. at 4448 (citations omitted).
To establish an Eighth Amendment violation,
"the inmate must show that he is incarcerated under conditions posing a substantial risk
of serious harm." Id. (The Court declined to
say when a risk becomes substantial, since
the issue was not presented to it.)

Deliberate Indifference Redux
From these familiar generalities, the Court
proceeded to the technical issue at hand: the
definition of deliberate indifference, about
which the federal appellate cases were in
conflict. The appeals courts generally agreed
that deliberate indifference is the equivalent
of reckless disregard for risk-a view the
. Farmer Court explicitly endorsed. However,
some courts had held that prison officials
may be found liable if they disregard risks
that they "knew or should have known"
about; this standard has been termed the
"objective" or "civil law" standard of recklessness. Other courts had held that prison
officials may only be found liable if they disregard risks that they actually knew about;
this definition of recklessness is generally
applied in criminal law and has been termed
a "subjective" standard.
For prisoner advocates, the bad news is
that the Court rejected the civil law standard
and adopted the criminal law standard. It
stated, "We hold ... that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate
health or safety; the official must both be
aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference." 62 U.S.L.W. at 4449. The (relatively) good news is that the Court was careful to limit the impact of its holding, with the

effect (and very likely the purpose) of curbing some extreme interpretations of the criminal standard that have appeared in lower
court cases.
The Court's approach to the question was
not one of making law but one of scrupulously applying its recent decisions, in particular
Wilson v. Seiter, 501 U.S. 294 (1991), and
Hellingv. McKinney, 113 S.Ct. 2475 (1993).
The Court thought that it was compelled to
reject the objective civil law recklessness
standard by Wilson, which declined to base
Eighth Amendment liability purely on the
existence of objectively inhumane prison
conditions. Rather, Wilson held that the
Eighth Amendment embodies a "subjective"
requirement, also referred to as a "culpable
state of mind." The Farmer Court, in effect,
declined the invitation to define the terms
"subjective" and "state of mind" in a broad
and nonliteral fashion.
In heWing to the line of Wilson v. Seiter,
the Court declined to follow its only previous
attempt to give substance to the deliberate
indifference standard. In Canton v. Harris,
489 U.S. 378, 390 (1989), the Court held
that municipal liability for inadequate police
training could be established "if the need for
more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to
have been deliberately indifferent to the
need." The Farmer Court declined to apply
Canton's holding that liability can be based
on a risk's "obviousness" (or on constructive
notice, as Justice O'Connor had phrased it in
her Canton concurrence), since such a standard would be "hard to describe ... as anything but objective." 62 U.S.L.W. at 4450.
The Court observed that Canton's definition of deliberate indifference was an interpretation of 42 U.S.C. §1983, a statute containing no independent state of mind requirement. 62 U.S.L.W. at 4450. Canton itself had
noted that the standard it announced for
municipal liability did not turn on the standard governing the underlying constitutional
claim. 489 U.S. at 388 n.8. Canton therefore
does not govern the Court's interpretation of
THE NATIONAL PRISON PROJECT JOURNAL

the substantive requirements of the cruel and
unusual punishments clause.
However one views the Court's reasoning,
its holding that there are now two deliberate
indifference standards is likely to breed confusion in the lower courts, especially since
many cases will contain both kinds of deliberate indifference claims-e.g., a claim by a
sentenced county jail prisoner that he or she
was assaulted by other inmates as a result of
the deliberate indifference of line staff, and
as a result of a policy of deliberate indifference with respect to training or supervision
on the part of the municipality. The prospect
of instructing juries that deliberate indifference means one thing for one set of defendants and something else for other defendants will not be pleasing either to the trial
judges who have to do it or to the appellate
panels who will have to sort out their mistakes.
This problem is not limited to cases with
municipal liability claims. Courts have often
used deliberate indifference as a standard for
individual supervisory liability in § 1983
cases, regardless of the legal standard governing the underlying constitutional claim.
See, e.g., Gutierrez-Rodriguez v. Cartagena,
882 F.2d 553, 562 (1st Cir. 1989) (Fourth
Amendment police shooting case); Stoneking
v. BradfordArea School Dist., 882 F.2d 720,
725 (3rd Cir. 1989), cert. denied, 110 S.Ct.
840 (1990) (student sexual harassment complaint under due process clause);]ones v.
City ofChicago , 856 F.2d 985,992-93 (7th
Cir. 1988) (baseless arrest and criminal
prosecution); McCann v. Coughlin, 698 F.2d
112, 125 (2d Cir. 1983) (prisoner's procedural due process claim). Questions of
supervisory liability, like those of municipal
liability, are matters of statutory interpretation arising from Congress's supposed rejection of respondeat superior under § 1983.
See Monell v. New York City Dept. ofSocial
Services, 436 u.s. 658, 691-93 (1978). Thus,
all Eighth Amendment cases in which prisoners sue bothJine staff who are directly involved and supervisors who are alleged to be
indirectly responsible will require juries to
apply two different deliberate indifference
standards.
The best practical solution to this problem
may simply be to banish the conclusory terms
"recklessness" and "deliberate indifference"
altogether, and frame jury instructions, as
well as the special verdict forms that seem
increasingly necessary in civil rights litigation, by using only the definitions of those
terms. For example: "Do you find that defendantJones knew of and disregarded an
excessive risk that prisoner Smith would be
assaulted?" Or: "Do you find that defendant
Jones failed to act to protect prisoner Smith
from assault despite his knowledge of a subTHE NATIONAL PRISON PROJECT JOURNAL

stantial risk of serious harm to prisoner
Smith?"

Qualms and Qualifications
Despite the Court's unfavorable holding,
much of the majority opinion amounts to an
exercise in damage limitation.
{
The Court rejected the view that its holding
would allow officials to disregard obvious:,!'
dangers by cultivating ignorance of then.l.
It stated: "Whether a prison official had-the
requisite knowledge of a substalltial risk is a
question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence ... , and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious." Id. at 4451.
This is an odd sort of reasoning; in effect,
it suggests that officials will not be tempted to
take refuge in willful ignorance because of
the likelihood that factfinders will erroneously fail to give them the benefit of their ignorance. However, the Court's statement should
prove invaluable to prisoner plaintiffs for an
entirely different reason than the Court
intended: it relieves them of the burden of
going forward with direct evidence of prison
officials' state of mind. In other words, an
obvious risk, without more, creates a triable
issue of fact. This point will be crucial at the
summary judgment stage in many casesespecially those involving pro se litigants,
who may have evidence that a risk was obvious, but lack the ability to conduct effective
discovery of what prison officials knew. Since
courts often withhold serious consideration
of the appointment of counsel until after a
pro se case has survived a summary judgment
motion, the effect of this evidentiary pronouncement by the Court will be pivotal for
many litigants.
Nonetheless, the Court's argument remains
unsatisfactory for its intended purpose of
refuting the "ignorance is bliss" argument.
Suppose a prison administration purposefully
avoids knowledge of risks of violence in an
institution, e.g., by failing to maintain a system for reporting violent incidents and by
discouraging inmates from complaining and
staff from reporting incidents or threats to
their supervisors. Can they still be held
liable? One appellate court has stated that
"[g] oing out of your way to avoid acquiring
unwelcome knowledge is a species of intent"
sufficient to establish recklessness under the
criminal law standard. McGill v. Duckworth,
944 F.2d 344,351 (7th Cir. 1991), cert.
denied, 112 S.Ct. 365 (1992). The Farmer
opinion gives no evidence that the Court considered this point.
The Court did, however, deal definitively
with one recurrent issue in prison violence
litigation: the specificity of the threat of which

prison officials must have had knowledge.
The Court stated:
The question under the Eighth
Amendment is whether prison officials,
acting with deliberate indifference,
exposed a prisoner to a sufficiently substantial "risk ofserious damage to his
future health, "... and it does not matter
whether the risk comes from a single
source or multiple sources, any more
than it matters whether a prisonerfaces
an excessive risk ofattack for reasons
personal t'eJ. him or because all prisoners
in his situation face such a risk.
62 U.S.L.W.at 4451 (citation omitted).
This holding amounts to a broad ratification of the body of case law finding prison
officials liable for violence resulting from
generalized failures of prison administration-or, as the case law puts it, "systematic
deficiencies in staffing, facilities or procedures [that] make suffering inevitable.... "
Fisher v. Koehler, 692 F.Supp. 1519, 1561
(S.D.N.Y. 1988), affd, 902 F.2d 2 (2nd Cir.
1990). Such deficiencies include the failure
to classify and separate aggressive and vulnerable inmates, inadequate staff supervision,
overcrowding, the lack of reporting and
investigating systems for threats and assaults,
and so forth. See, e.g., LaMarca v. Turner,
995 F.2d 1526 (1Ith Cir. 1993), cert.
denied, 114 S.Ct. 1189 (1994); Butler v.
Dowd, 979 F.2d 661 (8th Cir. 1992);
Redman v. County ofSan Diego, 942 F.2d
1435, 1445, 1448 (9th Cir. 1991) (en
bane), cert. denied, 112 S.Ct. 972 (1992).
The Court's acknowledgement that constitutionally significant risks to prisoners' safety
may be found at different levels of generality
may provide a fruitful approach to the "ignorance is bliss" defense. Instead of asking
"Did the warden know that prisoners were at
substantial risk of assault?" one might ask,
"Did the warden know that the failure of a
prison administration to monitor violence, or
the failure to classify inmates, can itself create or aggravate the risk of assault?" It may
be that prison officials' general knowledge of
the dynamics of prison life, and not just their
knowledge of conditions inside their own
institutions' walls, may create a triable question of deliberate indifference.

Curbing the Seventh Circuit
Prisoner advocates were concerned not
only with the disadvantages of the criminal
law standard but with the radically anti-prisoner gloss placed on it by the Seventh Circuit.
That court stated that prison officials may not
be held liable unless they possess "actual
knowledge of impending harm easily preventable,"]ackson v. Duckworth, 955 F.2d
21, 22 (7th Cir. 1992) (emphasis in original,
citations omitted), and that they must be
SUMMER 1994

7

shown to have exposed the plaintiff to a risk
"because of, rather than in spite of, the risk
to him." McGill v. Duckworth, 944 F.2d at
350 (Easterbrook, J.) (emphasis in original),
citing PersonnelAdministrator v. Feeney,
442 U.S. 256, 279 (1979). The lack of apparent doctrinal support for these propositions
did not impair the vigor with which the
Seventh Circuit asserted them or the willingness of other courts to accept them uncritically. See DesRosiers v. Moran, 949 F.2d 15,
19 (1stCir. 1991);Morellov.james, 797
F.Supp. 223, 234 (W.D.N.Y. 1992).
The Seventh Circuit gloss does not survive
Farmer. The assertion that officials must be
shown to act, or fail to act, "because of,
rather than in spite of," the risk to the prisoner is plainly contradicted by the Farmer opinion, which states: "Under the test we adopt
today, an Eighth Amendment claimant need
not show that a prison official acted or failed
to act believing that harm actually would
befall an inmate; it is enough that the official
acted or failed to act despite his knowledge
of a substantial risk of serious harm." 62
U.S.L.W. at 4450 (emphasis supplied).
Similarly, the Seventh Circuit's requirement
of "impending harm" is incompatible with the
Farmer Court's invocation of Helling v.
McKinney, which held the risk of "serious
damage to [a prisoner's] future health"
actionable. Id. at 4451, citing Helling. Since
Helling refers to harm that may occur "the
next week or month or year," and specifically
addresses a risk (second-hand tobacco
smoke) of harm that may remain latent for
many years, it can hardly be maintained that a
known risk of assault must be "impending"
before officials are required to act to avert it.
The Seventh Circuit's requirement that
harm be "easily preventable" falls for the
same reason. The Court relied on Helling for
the proposition that" [a] prison official's duty
under the Eighth Amendment is to ensure
'reasonable safety.''' It is hard to argue that
prison officials act reasonably if they do only
what is easy in theJace of a risk of death,
rape, or other serious injury.

The Problem of Injunctive Cases
The Farmer opinion is most ambiguous in
addressing the plaintiff's claim for injunctive
relief, which the Court directed the district
court to address on remand. Quoting Helling
v. McKinney, it stated that deliberate indifference '''should be determined in light of the
prison authorities' current attitudes and conduct,' ... at the time suit is brought and
persisting thereafter." It added that "to survive summary judgment, [the plaintiff] must
come forward with evidence from which it
can be inferred that the defendant-officials
were at the time suit was filed, and are at the
time of summary judgment, knowingly and
8

SUMMER 1994

unreasonably disregarding an objectively
intolerable risk of harm, and that they will
continue to do so ... ". 62 U.S.L.W. at 445152. However, it added in a footnote that if the
evidence supported the existence of an
"objectively intolerable risk of serious injury,
the defendants could not plausibly persist in
claiming lack of awareness ...." Id. at n.9.
Thus, it appears that in reality, whatever the
state of the defendants' knowledge at the time
the complaint was filed, the suit itself may '.
provide defendants with sufficient knowledge
to make out the subjective element of the
claim. Presumably this is true at the summary
judgment stage as well as later-especially
since a claim dismissed because of the defendants' lack of knowledge at the time of the
complaint could simply be refiled alleging the
subsequent enhancement of their knowledge.
The Court then added that its holding "does
not mean ... that inmates are free to bypass
adequate internal prison procedures and
bring their health and safety concerns directly
to court." For this proposition, it cited a 1943
case about equity jurisprudence, and added
that "an inmate who needlessly bypasses such
procedures may properly be compelled to
pursue them." Id. at 4452. The Court also
observed that" [w] hen these procedures produce results, they will typically do so faster
than judicial processes can." 42 U.S.L.W. at
4452. Unfortunately, the Court does not define under what circumstances this suggestion
of a new exhaustion requirement should
apply.
This portion of the Court's opinion reflects
some naivete about the practicalities of
prison life. Complaints of threats to prisoners' physical safety are generally not handled
through formal grievance or complaint procedures, but through direct communication
with security staff. There are two reasons for
this. First, the complaints are often too urgent
to await the processes of even an efficient
grievance system. Second, grievance systems
are not necessarily confidential. An inmate's
grievance may pass through the hands of a
number of staff members and, in many cases,
inmates, since grievance systems typically use
inmates at least in clerical and administrative
capacities. Given the stigma attached to
"snitching" in many prison populations, the
combination of delay and the risk of disclosure makes grievance systems an unattractive
option for inmates in fear. If the Court's statement implies that an inmate who has complained fruitlessly to security staff must additionally go through the formalities of a grievance process, it is seriously misguided.
Presumably-and consistently with other
aspects of equity jurisprudence-a prisoner
who seeks a temporary restraining order or
preliminary injunction and alleges an actual,
present danger to safety will still be given the

opportunity to show that he or she is at risk
of "irreparable harm" supporting such preliminary relief. See, e.g., Mitchell v. Cuomo,
748 F.2d 804, 806 (2nd Cir. 1984) (Eighth
Amendment violations would constitute irreparable harm); Cohen v. Coahoma County,
Miss., 805 F.Supp. 398,406 (N.D. Miss.
1992) (physical abuse by jail staff would
constitute irreparable harm). Such a holding
would also be consistent with the law of exhaustion in federal prisoner litigation, which
excuses exhaustion where the administrative
procedure is "inad~quate to prevent irreparable injury." Terrellv. Brewer, 935 F.2d 1015,
1019 (9th Cir. 1991).
Like the Court's other recent Eighth
Amendment cases, Farmer involved the claim
of a single inmate. The Supreme Court has
not reviewed the merits of an Eighth Amendment class action since Rhodes v. Chapman
in 1981, and in particular has not considered
the implications of its state-of-mind requirement for such cases.
Justice White, concurring in Wilson v.
Seiter, observed that "intent simply is not
very meaningful when considering a challenge
to an institution, such as a prison system."
502 U.S. at 310. Justice Blackmun, concurring only in the result in Farmer, elaborated:
Wilsonfailed to recognize that "statesanctionedpunishment consists not so
much ofspecific acts attributable to
individual state officials, but more ofa
cumulative agglomeration ofaction
(and inaction) on an institutional
level".... The responsibility for subminimal conditions in any prison inevitably
is diffuse, and often borne, at least in
part, by the legislature.
62 U.S.L.W. at 4454 (citation omitted). For
this reason, Justice Blackmun argued that
Wilson should be overruled.
One solution to this problem lies in the difference between damage claims, brought in
an official's individual capacity, and injunctive claims, which name defendants in their
official capacities. Such claims are "in all
respects other than name, to be treated as a
suit against the entity." Kentucky v. Graham,
473 U.S. 159, 165-66 (1985). This approach
lends itself to a focus on "the combined acts
or omissions" of the state's agents, Leer v.
Murphy, 844 F.2d 628,633 (9th Cir. 1988),
rather than the search for a particular "bad
guy" whose individual culpability could support liability. (This point is argued more fully
in the journal, Vol. 8, No.4 [October 1993]
at 8-9.)
Farmer seems to assume that the subjective
element of the plaintiff's injunctive claim is to
be assessed in the same way as that element
of her damage claim, although the issue of
capacity was not raised. Additionally, the
Court observes, in connection with its discusTHE NATIONAL PRISON PROJEG JOURNAL

sion of Canton v. Harris, that "considerable
conceptual difficulty would attend any search
for the subjective state of mind of a governmental entity, as distinct from that of a governmental official." 62 U.S.L.W. at 4450.
(It is not clear why that is so. Astandard that
imposes liability where an official "knows of
and disregards" an unacceptable risk seems
readily adaptable to entity liability as long as
the knowledge exists at a reasonably high
level within the entity. See Alberti v. Sheriff
o/Harris County, Texas, 978 F.2d 893, 89495 (5th Cir. 1992) (finding of deliberate
indifference was supported by evidence "that
the state knew that by refusing to accept
felons it was causing serious overcrowding in
Harris County jails") (emphasis supplied),
cert. denied, 113 S.Ct. 2996 (1993).)
However, the Farmer Court did not have a
systemic claim before it and did not purport
to address such cases. Farmer's injunctive
claim involves the actions or inactions of
particular identified officials with respect to
a particular inmate, and not with the constraints that other state actors (including the
legislature) may have placed on them, or with
systemic deficiencies resulting from policies
or absence of policy for which responsibility
is diffuse. This kind of distinction has been
acknowledged in other cases. See LaMarca v.
Turner, 995 F.2d 1526, 1542 (1Ith Cir.
1993), cert. denied, 114 S.Ct. 1189 (1994)
(citing "the institution's historical indifference" as a basis for injunctive relieO;
Hoptowit v. Spellman, 753 F.2d 779, 782
(9th Cir. 1985) (declining to reevaluate liability based on turnover in prison administration because the "personal conduct of the
principal named defendants" was not the
focus of the case); see also Mayor v. Educational Equality League, 415 U.S. 605
(1974) (barring an injunction based on conduct that was limited to the tenure of a single
departed official).
Thus, the relevant distinction for purposes
of the method of assessing deliberate indifference may not-,be the formal and technical one
between individual and official capacity, but a
practical one based on the degree to which
the complaint's claims are systemic in nature
and the relief sought goes to the functioning
of the institution and not the treatment of an
individual prisoner. But these comments are
speculative at best, and will remain so until
the Supreme Court finally elects to examine
the implications of its recent decisions for
institutional litigation.

PROCEDURAL DUE PROCESSDISCIPLINARY PROCEEDINGS
In the last Journal, I commented on two
Second Circuit opinions suggesting that defective prison disciplinary proceedings do not
deny due process if they are reversed by adTHE NATIONAL PRISON PROJECT JOURNAL

ministrative appeal. After those comments
were written, the Second Circuit revisited the
subject and definitively rejected that view. In
Walker v. Bates, _ F.3d _ , 1994 WL
161050 (2nd Cir., April 29, 1994), the court
reasoned: "The constitutional violation ...
obViously occurred when the penalty was . ~i
imposed in violation of state law and due ,.
process requirements. Administrative appeid,
whether successful or not, cannot cut off the
cause of action any more than can a [&tate
court] proceeding.... " 1994 WL 161050 at 5.
It concluded: "The rule is that once prison
officials deprive an inmate of his constitutional procedural rights at a disciplinary
hearing and the prisoner commences to serve
a punitive sentence imposed at the conclusion of the hearing, the prison official responsible for the due process deprivation
must respond in damages, absent the successful interposition of a qualified immunity
defense." Id. at 7. The court rejected the
analogy, made in one of the earlier decisions,
to criminal proceedings, in which defendants
who prevail on appeal frequently are incarcerated pending the appellate decision. The
criminal defendant's usual lack of recourse
under 42 U.S.C. §1983 is attributable to the
fact that judges are entitled to absolute immunity, while prison disciplinary officials
are entitled only to qualified immunity. Id.
at 6-7.
Interestingly, the court still did not refer to
Zinermon v. Burch, 494 U.S. 113 (1990),
which sets out a framework for determining
when post-deprivation remedies meet due
process requirements and when they do not.
The notion of "cutting off the cause of action"
begs the question when the presence or absence of a post-deprivation remedy may well
be an element of the cause of action. However, the result in Walker is consistent with
Zinermon, as argued in this column in the
lastJournal.
The court distingUished one of its earlier
decisions by observing that the inmate in that
case would have been confined in segregation
regardless of the disciplinary conviction, and
therefore no constitutional harm resulted
from his additional, defective conviction. Id.
at 6, citing Russell v. Scully, 15 F.3d 219,
222 (2nd Cir. 1994). In light of prison officials' history of trying to "avoid their due
process responsibilities simply by relabelling
the punishments imposed on prisoners,"
Taylor v. Clement, 433 F.Supp. 585, 586-87
(S.D.N.Y. 1977), a cynic might predict that
New York prisoners will soon find themselves
receiving disciplinary sentences and commitments to administrative segregation contemporaneously. See also Sanders v. Woodruff,
908 F.2d 310, 316 (8th Cir. 1990) (dissenting opinion) ("One of the unanticipated and
unfortunate consequences of Wolff v. Mc-

Donnell has been the tendency of prison
administrators to label disciplinary actions
administrative rather than punitive to avoid
having to comply with the due process requirements of Wolff"). It would be pleasant
to be wrong.
The state Attorney General's office announced that it would seek certiorari in
Walker.

Other Cases
Worth/Noting
U.S. COURTS OF APPEALS

Correspondence-Legal and Official
Brewer v. Wilkinson, 3 F.3d 816 (5th Cir.
1993). After Turner and Thornburgh, the
Fifth Circuit cases of Taylor v. Sterrett and
Guajardo v. Estelle, which applied least
restrictive alternative standards to mail
claims, are no longer good law. Accordingly,
prisoners' incoming legal mail need not be
opened and inspected only in their presence.
An allegation that outgoing legal mail was·
opened and material removed stated claims
for denial of First Amendment rights and the
right of access to courts. The allegation that
officials' actions prevented plaintiff's document from arriving at court sufficiently
alleged prejudice to state a court access
claim.

Attorney Consultation!AIDS/Work
AssigD]Rents/Standin~eference

Casey v. Lewis, 4 F.3d 1516 (9th Cir.
1993). Under the Turner standard, prison
officials need only put forward a legitimate
government interest and provide some evidence that the interest put forward is the
actual reason for the regulations. In a challenge to the prison's denial of contact attorney visits to high-seCUrity prisoners, the district court placed an "unduly onerous burden" on the defendants by relying on their
failure to cite any incident of assault,
hostage-taking, or escape under the former
contact visit policy. At 1521: "A prison official's concern for prison security is entitled
to significant deference." The policy did not
eliminate all alternative means of court
access. At 1523: "Contact visitation with an
attorney is merely one aspect of the broad
and fundamental right of meaningful access
to the courts." The court does not weigh the
Turner factor of impact on others. The plaintiffs' proposal of searches before and after
contact visits was not an acceptable alternative because it only addressed the defendants'
concern about contraband but not hostageSUMMER 1994

9

taking and injury to staff and attorneys.
The district court should not have enjoined
the defendants' policy prohibiting HIV-positive prisoners from working in food service
because there was no evidence that any
named plaintiff was HIV positive or that any
named plaintiff had ever stated he or she was
interested in a food service job or had
applied for one.

Qualified ImmunitylLaw Libraries
and Law Books/Class ActionsEffect ofJudgments and Pending
LitigationIMootness
Abdul-Akbar v. Watson, 4 F.3rd 195 (3d
Cir. 1993). The defendants are entitled to
qualified immunity from the plaintiff's damage claims based on denial of law library
access in segregation. At 203: "... [E] ach
legal resource package must be evaluated as
a whole on a case-by-case basis." "... [T]he
standard to be applied is whether the legal
resources available to a prisoner will enable
him to identify the legal issues he desires to
present to the relevant authorities, including
the courts, and to make his communications
with and presentations to those authorities
understood." (203) At 203:
With the availability ofbasic federal
and state indices, citators, digests, selfhelp manuals and rules ofcourt, along
with some degree ofparalegal assistance and a "paging system" through
which photocopies ofmaterials from an
institution's primary facility may be
obtained, we are persuaded that even a
prisoner in a segregated unit... would
not be denied access to the courts. Nor
could the absence from the satellite
library ofany particular volume or
research aid be construed as a barrier
to constitutionally required legal
access. [Footnote omitted]
The exact materials required may vary by
institution. At 204: "The hallmark of an adequate satellite system, which achieves the
broad goals of Bougds, is, in our opinion,
whether the mix of paralegal services, copying services and available research materials
can provide sufficient information so that a
prisoner's claims or defenses can be reasonably and adequately presented."
Aprior consent decree governing law
library services is to be presumed valid and
in conformity with the law; the district court's
view that it did not provide adequate court
access at most demonstrated that the parameters of the law were uncertain.
Once the plaintiff was released from the
segregation unit, he had no further interest in
the library resources available on that unit,
and his claim was moot. The "capable of repetition, yet evading review" doctrine applies
only to deprivations that are too short in
10

SUMMER 1994

duration to be fully litigated during their exisattorney demanded it. The defendants did not
tence and that the same complainant is reause the transfer to argue that the plaintiff's
sonably likely to be subjected to again. The
claims were moot, and the plaintiff failed to
court rejects the district court's conjecture
bear the burden of proof on the causation
that the plaintiff "could again" be placed in
issue.
segregation. In any case, since the defendants
'; Evidentiary Questionslfrial
had implemented the legal access plan
approved by the district court and said they
Davidson v. Smith, 9 F.3d 4 (2nd Cir.
intended to stick to it, there was no likeli-' 1993). The district judge ruled that the
defense could not refer to the plaintiff's psyhood that he would be subjected to the same ','
deprivations.
chiatric history (institutionalization during
1972-76) during his civil trial, in which he
Procedural Due Processalleged that a correctional officer had deProperty/StandingiAttorneys'Fees
stroyed some of hisclegal papers. This testiStewart v. McGinnis, 5 F.3d 1031 (7th Cir.
mony was not harmless error, despite a curative instruction.
1993). The plaintiff's allegation that his property was taken in shakedowns without complying with the regulation requiring a "shakeConsent Decrees/Correspondencedown slip" listing the property taken and other
Legal and Official
relevant information did not state a due proKindred v. Duckworth, 9 F.3d 638 (7th
cess claim because post-deprivation remedies
Cir. 1993). Aclass action consent decree
were available in the state Court of Claims. The
limited the opening of "confidential corredeprivation was "random and unauthorized"
spondence," even in the inmate's presence,
and not pursuant to established procedures
to cases of reasonable cause to believe it conbecause those procedures reqUired shaketained contraband. The district court rej ected
down slips. This holding is contrary to Zinerthe plaintiff's motion to enforce the decree
mon v. Burch, which held that conduct was
on the ground that a consent decree could
authorized when "[t] he State delegated to [the
not require more of the defendants than the
defendants] the power and authority to effect
Constitution.
the very deprivation complained of here... and
At 641: "This view quite simply is incoralso delegated to them the concomitant duty to
rect. Consent decrees often embody outcomes
initiate the procedural safeguards set up by
that reach beyond basic constitutional prostate law to guard against unlawful confinetections ... Indeed, it is a rare case when a
ment." 494 U.S. at 138. (Another way to say
consent decree established only the bare
this is that it is the deprivation of property, not
minimum required by the Constitution." The
the denial of due process, that must have been
court also rejects the view that the decree set
unauthorized.)
forth only procedural obligations or that it
At 1037: "Due process requires that Stewart
was intended to track minimum constitutionhave a meaningful opportunity to be heard on
al standards, based on the language of the
decree itself.
'
the issue of whether the fan was contraband."
As to property for which he received a receipt,
The court rejects the defendants' argument
the disciplinary hearing at which he was conthat given the ease of smuggling contraband
victed of possessing contraband provided this
in confidential correspondence, reasonable
opportunity. In addition, regulations prOVided
grounds exist to believe that there is contrathat the prisoner had 30 days to file a grievband in every piece of incoming mail, since
ance contesting whether the property was
the wording "obViously" contemplates particcontraband; he wrote to the warden and
ularized suspicion.
asked that his letter be treated as an emergency grievance, but it wasn't, and he never
Use of Force/Summary Judgment
communicated with grievance personnel.
Norman v. Taylor, 9 F.3d 1078 (4th Cir.
The plaintiff lacked standing to seek
1993). The plaintiff alleged that he took a
injunctive relief because he had been transdrag of an inmate worker's cigarette and an
ferred to a different prison. Even if his comofficer ran up and hit him with his keys. The
plaint was construed to address the entire
officer said that the plaintiff was not only
prison system, he would lack standing.
smoking but yelling, and denied he ever
Shakedowns were conducted every 60 days
threatened or hit him. The district court held
but the plaintiff said he had had property
that the plaintiff had insufficiently refuted the
confiscated only twice in one year. At 1038:
statement that he was causing a disturbance,
"We do not believe that this rate of incidence
justifying the use of force, and granted sumsupports a conclusion that Stewart is under
mary judgment.
an immediate threat of harm."
The district court should not have granted
The plaintiff was not entitled to attorneys'
summary judgment against this pro se litigant
fees on a "catalyst" theory based on the fact
without directly posing the "pivotal question"
that he was transferred 15 months after his
whether he was creating a disturbance and
THE NATIONAL PRISON PROJECT JOURNAL

permitting him to clarify it. At n. 1081: Under
the plaintiff's version of the facts, the defendant needed only enough force to stop him
from smoking. "Accepting this version of
events ... the act of swinging heavy, brass keys
at Norman's face clearly exceeded the amount
of force required. It is hard to imagine a
sound penological justification for using any
physical force, without any prior warning, for
such a minor violation of the jail's rules."
The facts alleged could certainly support a
finding of malicious and sadistic intent.
The plaintiff's alleged initial and lingering
pain to his hand, swelling and decreased mobility, and psychological injury resulting from the
defendant's alleged threats, is "beyond the de
minimis level" (1082). At n. 5: The threats are
"relevant to this inquiry as well."

Appointment of Counsell
Pro Se Litigation
Williams v. Carter, 10 F.3d 563 (8th Cir.
1993). The plaintiff complained of unconstitutional jail conditions. The district court
requested appointment of counsel. Before a
hearing, the plaintiff had submitted a witness
list, requesting that the court subpoena the
witnesses. Later, in response to a form order
from the court, he submitted a different list.
The district court acted only on the second,
despite the plaintiff's protests at the hearing,
apparently treating the second list as the only
one requiring attention.
The district court abused its discretion.
At 567:
We believe this action held an uncounselled litigant to too strict a standard. When a court has denied a motion
for appointment ofcounsel, it should
continue to be alert to the possibility
that, because ofprocedural complexities or other reasons, later developments in the case may show either that
counsel should be appointed, or that
strict procedural requirements should,
in fairness, be relaxed to some degree.
The district murt is directed to reconsider
calling the witnesses in the original list, especially state officials who had recently inspected the jail and inmates who were in it at the
time of the events complained of.

Access to CourtsPunishment and Retaliation
Gibbs v. Hopkins, 10 F.3d 373 (6th Cir.
1993). The plaintiff's allegation that he was
subject to retaliation for helping other prisoners with lawsuits should not have been dismissed. There is no constitutional right to
assist other inmates in lawsuits, "but prisoners are entitled to receive assistance from jailhouse lawyers where no reasonable alternatives are present, and to deny this assistance
denies the constitutional right of access to
THE NATIONAL PRISON PROJECT JOURNAL

courts." The plaintiff should be permitted to
prove that no reasonable alternatives existed
for other inmates. He should have been permitted to take discovery concerning the merits
of the defendants' claim that they kept him in
segregation because of lack of bed space.

Law Libraries and Law
Bookslfransfers
Petrick v. Maynard, 11 F.3d 991 (lOth Cir.
1993). The plaintiff's Oklahoma conviction"
was enhanced based on his prior convictions
in two other states. He attempted to obtain
legal materials to attack the earlier convictions but the prison law library did not have
them, declined to get them, and would not
authorize obtaining them through interlibrary loans.
The plaintiff's inability to challenge the
convictions that resulted in his enhanced sentence meets the actual injury reqUirement of
court access claims. The state did not meet
its obligations under Bounds. At 995:
"Having exercised its prerogative under
Bounds to afford Petrick law library facilities
rather than legal representation, Oklahoma
owed Petrick a duty to prOVide adequate legal
resources to him." In a case like thiS, the
prisoner need not identify the materials
reqUired with specificity, but "the materials
sought should be described sufficiently so
that the prison can obtain them for the prisoner without being required to perform legal
research for the prisoner.... " The prisoner
must also "articulate" (not prove) a need
for the materials.

Modification of Judgments/
Judicial DisengagementIPre-Trial
Detainees/Crowding
Inmates ofSuffolk CountyJail v. Rufo, 12
F.3d 286 (lst Cir. 1993). On remand from
the Supreme Court, the district court denied
the sheriff's renewed motions to modify a jail
conditions consent decree to permit doublecelling and denied the state Commissioner of
Correction's motion to vacate the decree entirely. The commissioner, but not the sheriff,
appealed.
The court rejects the commissioner's position that motions to vacate are determined
only by "whether the defendants are in present compliance with constitutional requirements and whether the effects of the original
violation have abated." (291) The Supreme
Court's decisions in Dowell and in Freeman
v. Pitts, which the court "tentative [ly]" believes apply generally to institutional reform
litigation and not just to school desegregation
cases (293),
... indicated that there are two conditions that must be met before a district
court is essentially obliged to terminate
a litigated decree and return the institu-

tion or programs under court supervision to the governance ofstate or local
authorities. First, the district court muse
determine that the underlying constitutional wrong has been remedied, either
fully or to the full extent now deemed
practicable... Second, there must be a
determination that the authorities have
complied with the decree in goodfaith
for a reasonable period oftime since it
was entered...
Implicit in these requirements is the
needfor the district court, before terminating the de'cree entirely, to be satisfied that there is relatively little or no
likelihood that the original constitutional violation will promptly be repeated when the decree is lifted... Whether
authorities are likely to return to former ways once the decree is dissolved
may be assessed by considering U[t]he
defendants' past record ofcompliance
and their present attitudes toward the
reforms mandated by the decree." .. ,
Ofpossible further relevance is the way
that demographic, economic, andpoliticalforces may be expected to influence
local authorities and the institution
once the shelter ofthe decree has been
lost. [Citations omitted]
The court assumes arguendo ("we neither
adopt nor reject") the standard "most favorable to the Commissioner that we can imagine
being adopted by the Supreme Court," Le.,
entitlement to termination on a showing "that
the federal violations of the type that provoked the original action have been entirely
remedied or remedied to the full extent feasible; that a reasonable period of time has
passed during which such compliance has
been achieved; and that it is unlikely that the
original violations will soon be resumed if the
decree were discontinued." (293)
Applying this hypothetical standard, the
court agrees that double-celling of detainees
is not automatically unconstitutional. At 293:
"... [B] ut we think it obViously apparent that
double-celling in very small quarters, with
lack of security against assaults, and possibly
other threats (disease) could violate due
process." It is not clear that the sheriff's
immediate plans, much less the complete
vacation of the decree, would ensure constitutional conditions, given that the facility was
designed with single-ceiling in mind. Even if
the immediate plans were accepted, unconstitutional conditions might later be recreated.
The sheriff submitted a new motion to
modify and gained some relief in a later district court opinion not yet reported.

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11

Cruel and Unusual Punishment!
Negligence, Deliberate Indifference
and IntentlPunitive Segregation/
Remedial Principles
LeMaire v. Maass, 12 F.3d 1444 (9th Cir.
1993). Rules imposed for security reasons in
a punitive segregation unit are to be reviewed
under the "malicious and sadistic" standard
of Whitley and Hudson rather than the deliberate indifference standard applied in Wilson
v. Seiter to conditions of confinement. At
1452-53:
What LeMaire complains ofare not so
much conditions ofconfinement or
indifference to his medical needs which
do not clash with important governmental responsibilities; instead, his complaint is levelled at measuredpractices
and sanctions either used in exigent
circumstances or imposed with considerable due process and designed to alter
LeMaire's manifestly murderous, dangerous, uncivilized, and unsanitary
conduct.
This holding is directly contrary to jordan
v. Gardner, 986 F.2d 1521, 1529 (9th Cir.
1993) (en bane), which reversed a similar
panel holding by the same judge and held that
deliberate indifference is applicable to security practices.
Restraints (1457): Requiring dangerous
inmates to take showers in shackles does not
violate the Constitution. "That LeMaire finds
showering in restraints difficult is merely the
price he must pay for his violent in-prison
behavior."
Exercise (1457-58): The denial of exercise privileges for most of a five-year period
was sufficiently serious to violate the objective prong of the Eighth Amendment, but was
not imposed either with deliberate indifference or maliciously and sadistically, since it
was a direct response to his own dangerous
conduct. "All LeMaire had to do was to follow
the rules." The court notes that he could
exercise in his cell, and the district court's
injunction requiring provision of tennis shoes
for this purpose was not disputed.
Punitive Segregation, Access to
Medical Personnel, Lighting (1458-59):
Placement in "quiet cells" with two solid
outer doors was not disputed to violate the
Eighth Amendment. The court rejects the
argument that the prohibition on their use
should be limited to inmates with serious
medical problems, since previously healthy
inmates may have a medical emergency or be
injured in a fall or accident. However, the
requirements that the outer door be left open
and an intercom be provided were redundant. The defendants also agreed to "modify
its use of lighting in the cells"; the district
court had found that they kept the lights on
24 hours a day.
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SUMMER 1994

Restraints (1459-60): The placement of
inmates in full mechanical restraints while
locked in their cells does not violate the Eighth
Amendment as long as it is conducted in conformity with the prison's regulations, which
require express approval of the superintendent
or designee; limits the practice to inmate
behavior risking major destruction of property, creating serious health or injury hazard, or
threatening to escalate into a serious disturbance; and requires that they be discontinu~d
as soon as it is reasonable to believe the .
behavior will not recur. The state did not contest the unconstitutionality of practices beyond
those regulations. The district court's injunction should do no more than order the defendants to follow their regulations.

Use of Force
Hickey v. Reeder, 12 F.3d 754 (8th Cir.
1993). It was unconstitutional for prison staff
to shoot the plaintiff with a stun gun because
he refused to sweep his cell. The court rejects
the defendants' efforts to equate the stun gun
with the pain of a shock from static electricity. At 757: "This is exactly the sort of torment
without marks with which the Supreme Court
was concerned in McMillian, and which, if
inflicted without legitimate reason, supports
the Eighth Amendment's objective component." (Footnote omitted) At 758: "The relationship between the need for force (zero)
and the force used (a painful and incapacitating shock) was excessive." At 759:
There is no question that prison officials may compel compliance with legitimate prison regulations. A requirement
that inmates sweep their cells is clearly
a legitimate regulation. Nor do we dispute that circumstances may arise
where prison officials are justified in
using summary physicalforce. These
three facts, however, simply do not
translate into a mandate to use summary physicalforce to compel compliance with all legitimate rules.

Use of Force
johnson v. Bi-Statejustice Center, 12
F.3d 133 (8th Cir. 1993). Although the plaintiff admittedly created a disturbance and then
acted to prevent the closing of a security
door, his testimony that he was hit in the
head, rendered semi-unconscious, and then
kicked, stomped and beaten after he had
been pushed to the ground and subdued
might support an inference of an unnecessary
and wanton infliction of pain. The appeals
court says this is "not an easy question" and
remands, since the trial court failed to consider the Hudson standard.

Religion-Services Within
Institution/Access to CourtsLaw Libraries
Alston v. DeBruyn, 13 F.3d 1036 (lth Cir.
1994). The district court erred in dismissing
as frivolous the plaintiff's complaint of complete denial of religious services to segregation inmates without evidence concerning the
prison's policy and the need for it. At 1040:
"The court's assumption that the defendants
were justified in restricting Alston's religious
freedom simply because he was in administrative segregation was improper."
The district cour,t erred in dismissing as
frivolous the plaintiff's claim of denial of
court access without a factual record. It
"implied that the constitutional requirement
is met whenever an inmate is given any time
in a law library. Not so. The touchstone is
'meaningful' access, not just access." (1041)
The lack of an allegation of prejudice did not
make the claim frivolous; as a pro se litigant,
the plaintiff should have had an opportunity
to amend his complaint.

Protection from Inmate Assault
Williams v. Mueller,13F.3d 1214 (8th
Cir. 1994). The plaintiff testified that he was
assaulted by another inmate and an officer
watched but did not intervene and delayed
before calling for assistance. The district
court granted judgment as a matter of law
after the plaintiff's case. It shouldn't have.
Such a motion is properly characterized as a
motion for judgment on partial findings, and
must be supported by findings of fact. Circuit
precedent upholding a failure to intervene in
an assault when it would have created a more
dangerous situation may be distinguishable
on the facts from this case.

Mental Health Care/Class ActionsEffect of)udgments and Pending
Litigation
Martel v. Fridovich, 14 F.3d 1 (1st Cir.
1993). The plaintiff was criminally sentenced
to 18 to 25 years. He was concurrently committed to the Massachusetts Treatment Center
for Sexually Dangerous Persons for one day to
life pursuant to a state statute that provides for
discharge when he is no longer "sexually dangerous," at which time he would be required
to serve any unexpired criminal sentence.
The defendants were required by consent
decree to provide for "the day or other shortterm release of Treatment Center patients for
approved programs outside the Treatment
Center where such relief is deemed appropriate by the Department of Mental Health." In
1991, after escapes from the program, the
defendants suspended the program and then
changed the rules to exclude persons under
criminal sentence and not eligible for parole,
including the plaintiff.
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The change was not so "outrageous" as to
deny substantive due process. Since the plaintiff did not meet the new eligibility rules, he
had no state-created liberty interest that
would require procedural due process. The
changes did not violate the ex post facto
clause because they "are not punitive but
rather related to the state's concern for community safety." Insofar as the plaintiff alleges
that the changes result in a denial of the adequate treatment required by the Constitution
and a federal court consent decree, that concern "is best addressed through an action to
enforce the consent decree." (3) At 3 n. 4:
Allowing the decree to be challenged
through an individual action for declaratory and injunctive relief "would
tend to discourage governmental authorities from entering into decrees in
public law litigation, encourage the
splintering ofcivil rights claims on an
individual basis, andpromote disrespectfor judicial decrees duly entered
following carefulproactive review of
the often complex mix ofindividual
and institutional considerations involved in such litigation." [Citation
omitted]

EmergencieslProcedural Due
ProcesslLaw Libraries and
Law Books/FoodlReligionPractices-Diet
Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994).
The plaintiff's allegation that he was placed in
lockdown for 25 days even though he was not
involved in the disturbances that precipitated
the lockdown should not have been dismissed
as frivolous. At 9: "Even though a lockdown
rarely will require more than informal reView, some process arguably was due Eason
and, given the limited information before us,
we cannot determine whether it was provided." (Footnote omitted)
The plaintiff's claim of deprivation of law
library access should not have been dismissed as frivQlous. At 9-10: "Though such
rights may be narrowed without constitutional difficulty, especially in the wake of a riot, if
Eason was purSUing a legal action which
made the use of a law library necessary and
all access was nonetheless denied, this deprivation constitutionally might be cognizable."
(Footnote omitted)
The plaintiff's allegation that he is a Muslim
and was deprived of all but three pork-free
meals, subsisting on peanut butter biscuits
during the 25-day lockdown, should not have
been dismissed as frivolous. At 10: "Prison
officials have a constitutional obligation to
provide reasonably adequate food and, absent
some legitimate penological interest preventing the accommodation of a prisoner's religious restrictions, food which is anathema to

Dear Prison Project...
Dear Prison Project:
I am a woman incarcerated in a state prison out West. The programs a
library here are very poor and I've heard the men's prison has many mo
grams. Can we sue for sex discrimination? How can we find out what progr
available at the men's prison?
.
Dear Not-Forgotten Female:
_
Yes, you can file a complaint against your state department of correctio
have grounds for an equal protection (sex discrimination)'claim under t
Amendment. Substantial barriers-such as prohibitions against correspo
between female and male inmates-make investigations of the programs a.
mens' plisons difficult, but not impossible. However, once you file a c
can obtain information through a process called discovery.
Gail Perry, a plaintiffs' attorney in the Klinger case (824 F.Supp at 1391)
the following suggestions to women plisoners: (1) send letters to friends!
have them mail questions to male prisoners; (2) stay in contact with w
ers who are released and who can write to male prisoners and collect
(3) ask for the annual department of corrections report-it is public
you may find them "glowing" about how wonderful their programs (£
oners) are; and (4) ask friends and family to write and ask for other i
such as newspaper articles on prisoner programs, and ask them to send
Take advantage of the word-of-mouth system and keep records of everyt
sure not to violate any plison correspondence rules.
Ms. Perry reports that the women inmates involved in Klinger read G
Wilson, 546 ESupp. 174 (W.D.Ky. 1982), and Glover v.johnson, 478 ES
(E.D.Mich. 1979), recognized factual similarities with their own situatio
used the cases as models for their complaint. Women plisoners shou
Canterino, Glover, and Klinger for guidance.
The legal standard for a 14th Amendment equal protection claim b
is "parity of treatment." Pality of treatment means that the State must
grams for women that are substantially eqUivalent, but not identical .
grams for men. Glover, 478 ESupp. at 1079. COUlis will analyzeyourc
the follOWing questions: (a) are there programs prOVided to male in
female inmates, resulting in a "substantial burden" to female inmat
an important governmental objective for providing different progr
are the program differences designed in such a way that they are su
ed to the governmental objective? Klinger, 824 ESupp. at 1391. If a
"yes" to (a), and "no" to (b) and (c), you should win your case.

Kim Dvorchak is a student at the City University ofNew York Law
working as a law clerk at the National Prison Project this summer. .
an inmate because of his religion is at least
arguably inadequate." (Footnotes omitted)
DISTRICT COURTS

Disabled/Qualified Immunity
Noland v. Wheatley, 835 F.Supp. 476 (N.D.
Ind. 1993). The plaintiff is a "semi-quadriplegic" with a colostomy and a urostomy. He
was subjected to disgusting conditions in jail
and denied access to various jail programs
and activities.
The plaintiff stated a claim under the Americans with Disabilities Act. Claims under Title
II of the Act (public services) do not reqUire
exhaustion of administrative remedies.

Though the statute is ambiguous, the court
gives "controlling weight" to the Department
of Justice's interpretative regulations.
Qualified immunity is not available against
the ADA claims, since the very existence of
the ADA and its regulations put them on
notice that their failure even to attempt to
accommodate the plaintiff was unlawful.

Procedural Due ProcessDisciplinary Proceedings/Grievances
and Complaints About Prison
Nicholson v. Moran, 835 F.Supp. 692
(D.R.I. 1993). Prison officials' policy of automatically filing a charge of providing false
information against prisoners who complain
SUMMER 1994

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about assault by officers without obtaining the
initiation of criminal charges or providing
"sufficient conclusive evidence" to substantiate the allegation does not violate the First
Amendment.
Disciplinary proceedings in Rhode Island
are governed by the "Morris Rules," established by federal consent judgment and now
embodied into state law. They require substantial evidence to support a disciplinary
conviction, though" [t]here is some question" whether this standard should be applicable under § 1983 in light of the Supreme
Court's endorsement of a "some evidence"
standard. Here, the some evidence standard
was not met, since there was no evidence that
the plaintiff prOVided false information. They
only evidence against the plaintiff was a letter
from the FBI stating there was insufficient evidence to support criminal prosecution and a
similar letter from the Department ofJustice.

plaintiff's protestations that his good time had
been miscalculated. At 705: "When an individual's freedom hangs in the balance and an
official has been put on notice of a possible
error affecting that freedom, it is incumbent
upon the official to ensure that our democratic processes are not apathetically forfeited."
The fact that the defendants did not themselves have authority to change the plaintiff's sentence did not matter.

Denial of Ordered Care
Brewer v. Blackwell, 836 F.Supp. 631
(S.D.Iowa 1993). The plaintiff's coronary
artery disease is a serious medical need. The
court includes a useful essay on the definition
of this term (639-41). At 642: "Recklessness
in the face of a serious medical need occurs
if the prison officials disregard a substantial
risk of danger that is known or would be apparent to a reasonable person in the prison
official's position."

Pre-Trial DetaineeslPest Control
Walton v. Fairman, 836 F.Supp. 511 (N.D.Ill.
1993). The plaintiffs' allegations that they
informed the Cook County sheriff and the executive director and superintendent of the jail of an
infestation of rodents was sufficient to support
their liability for failure to correct it. However,
the plaintiffs did not allege a city policy or custom "to allow rats or any other four-legged vermin to roam the jail freely" (514). (This holding
illustrates the necessity to plead the supposed
policy with specificity-e.g., a policy "to fail to
provide adequate extermination services" or "of
deliberate indifference to preventing vermin
infestation.")
At 515: "... [I]mprisoning plaintiffs in dungeon-like conditions in which rodents crawl
allover and attack them is barbarous to the
standards of our contemporary society." The
defendants' alleged failure to take action
when informed of the infestation supported a
claim of deliberate indifference.

Protection from Inmate Assault
Rutledge v. Springborn, 836 F.Supp. 531
(N.D.Ill. 1993). The plaintiff exposed an
escape plot and was later threatened and
assaulted several times despite prison officials' promises to protect his confidentiality.
The warden and assistant warden are not
entitled to summary judgment on the plaintiff's allegation that at one point they removed
him from segregation and put him in protective custody for the purpose of revealing his
informant's role, and that they failed to transfer him promptly when he first reported
threats against him.

Suicide Prevention
Herman v. Clearfield County, Pa., 836
F.Supp. 1178 (W.D.Pa. 1993). Apsychologist
employed by a private mental health program
who worked full-time in the jail and functioned as the jail psychologist, who made
final decisions concerning prisoner supervision, and who was the only qualified person
who could provide psychological screening
services to detainees, acted under color of
law, as did the program that employed him.

Procedural Due ProcessClassification, Administrative
Segregation
Casey v. Lewis, 837 F.Supp. 1009 (D.Ariz.
1993). Arizona regulations do not create a
liberty interest in staying in general population and out of administrative segregation or
in avoiding reclassification to higher security
levels. In any case, their regulations provide
the process due (hearings every six months,
notice, and the opportunity to provide a statement or witnesses' statements, plus safeguards
on the reliability of confidential informants).
The plaintiffs had alleged that administrative
segregation was used to lock up prisoners
against whom prison officials could not prove
disciplinary charges. The court ignores this
allegation, analyzes the case in conventional
due process terms, and commends the defendants for providing due process protections.

False Imprisonment

Suicide PreventionlPendent and
Supplemental Claims; State Law in
Federal CourtIDamages-Assault and
Injury/State, Local and Professional
Standards

Alexander v. Perrill, 836 F.Supp. 701
(D.Ariz. 1993). Prison officials were deliberately indifferent in doing nothing about the

Bragado v. City ofZion/Police Dept., 839
F.Supp. 551 (N.D.Ill. 1993). In a jail suicide
case, the jury's finding of deliberate indiffer-

14

SUMMER 1994

ence on the part of a jail officer was supported by evidence that she "failed to comply with
the established jail regulations and standards
which provided guidance on the reqUired
precautionary measures to prevent possible
suicides" (553). Even though she knew of the
decedent's suicidal tendencies and intoxicated and unstable physical and mental conditions, and heard her yell repeatedly that she
was going to kill herself, she did not personally monitor the decedent's cell.

Protection front:Inmate Assault
Johnson v. Meachum, 839 F.Supp. 953
(D.Conn. 1993).' Allegations that a warden
failed to place the plaintiff in protective custody and the commissioner "failed to enact
and enforce policies and procedures to protect the physical and mental health of inmates
facing overt and explicit threats of physical
and sexual abuse by other inmates" (955)
stated a claim under the deliberate indifference standard. So did allegations that the
plaintiff complained to another defendant
repeatedly about incidents of sexual harassment, without response, and that a fourth
defendant placed the plaintiff in a cell with
another inmate that he knew presented a danger of sexual assault.
The defendants are not entitled to qualified
immunity at this point because the right to
protection of personal security was clearly
established and their alleged behavior could
not have been believed to constitute an
exception to it. Whether the defendants can
establish that their conduct was "objectively
reasonable" depends on the facts, which are
not before the court.

Restraints
Littlewind v. Rayl, 839 F.Supp. 1369
(D.N.D. 1993). The plaintiff and several other
inmates assaulted an officer. Afterward, he
fully cooperated with prison offiCials, who
transported him to an "observation unit."
There (at 1370-71):
... [P}laintiffwas placedface down
and without any clothes, in a 'North
Dakota-style' four-point restraint [in
which he} was handcuffed behind his
back, his legs were shackled together by
leg irons, and a length ofchain connected the two behind his back...
Plaintiffremainedface down on his
bed, with his feet bowed toward his
head. The evidence was inconsistent
whether plaintiffcould rest his head on
the bed, or whether it too was bowed
toward his feet.
He remained there for almost eight hours,
with a 40-minute meal break but no bathroom break; he urinated on the bed and the
floor. He was then placed in "three point
restraint" for 23 hours, where he "spent the
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majority of his time in a stooped position
with his wrists handcuffed together underneath one leg, and both legs shackled together. In this position, plaintiff was able to use
bathroom facilities, but unable to use toilet
paper" (1371). He was then kept handcuffed
and in leg irons for seven-and-a-half days.
For all but the last three days of this period,
he was kept naked, and he was without a
blanket for the first two days. (This was in
April in North Dakota.) He was not given a
toothbrush or toothpaste until two days
before his release, and his cell was illuminated 24 hours a day during the entire period.
The defendants testified that these measures were emergency safety measures, even
though he did nothing disruptive during the
entire period of restraint. AjUry found for the
defendants.
The court grants judgment as a matter of
law for the plaintiff on liability and sets a trial
on damages. Though the defendants cited case
law upholding some of these deprivations,
none of them involved all of these conditions
imposed simultaneously. At 1373: "The chaining of an inmate in this manner and deprivation of every human necessity without provocation was so barbaric and inhumane that it
could only have been done maliciously and
sadistically for the very purpose of causing
harm, and must be considered cruel and
unusual punishment as a matter of law." The
court notes that no justification was presented
for the deprivation of clothing, the ability to
use the toilet and toilet paper, and toothbrush, that the plaintiff was never examined
by medical personnel although he was
restrained next door to the infirmary, and also
that the other three inmates were treated
exactly the same as the plaintiff.

Law Libraries and Law Books/Access
to Courts-Services and Materials
Medical Care-Standards of Liability
-Serious Medical NeedslDental
CarelEqual Protection
Canell v. Bradshaw, 840 F.Supp. 1382
(D.Ore. 1993). The plaintiff complained of
inadequate law library access in a state
prison intake center operated by county jail
authorities. At 1388:
The state defendants contend the contract between the ODC and Clackamas
County makes the County solely liable
for day-to-day operations ofthe OClC.
Defendants cite no law to support the
novelproposition that a state may avoid
its constitutional obligations to
inmates by contracting with a third
party to house those inmates. The only
reported cases discussing this question
are squarely to the contrary....
Moreover, staffing requirements, operating
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mined by state and county, and state officials
retained the right to review the budget and
make modifications as necessary. State officials "either knew, or should have known,
the level of legal services that were being provided at the OCIC, and had ample opportunity
and authority to adjust those levels." (1389, ';
footnote omitted)
,•
At 1389: "The paging system, also known :"
as an 'exact-cite system' because an inmate
must request materials by exact cite, has been
condemned by courts throughout the country." By 1993, no reasonable official would
have believed a paging system by itself was
sufficient to protect the right of court access,
The right of court access applies to inmates
temporarily housed at transient institutions
such as jails and the reception center in this
case. The deprivation was not de minimis
because it was not limited to a few days and
the court knew that the plaintiff had to
respond to pending motions. The court also
notes that the same defendants filed a summary judgment motion and asked for expedited consideration at the same time the plaintiff
was deprived of legal access.
The fact that the plaintiff has continued to
be a prolific litigator does not establish lack
of harm. Actual injury is not required when
deprivation of core court access requirements is alleged. At 1391: "In any event, 'injury' includes petitions not filed, allegations
left out of the complaint, legal theories not
pursued, and cases not cited in the briefs that
plaintiff did manage to file." The complaint
sufficiently alleged that the plaintiff missed a
motion deadline and that a case was dismissed as frivolous because of his inability
to conduct legal research.
An allegation of the denial of copying services stated a claim. At 1392: "Duplicating
services were not expressly mentioned in
Bounds, but the lower courts have recognized
that photocopying can be an indispensable
service when the plaintiff is obliged to provide
copies of exhibits and other original documents to the court and opposing counsel." ld.
An allegation that the defendants refused
treatment for a missing filling stated an
Eighth Amendment claim. At 1393:
"Defendants continue to labor under the fatal
misconception that the Eighth Amendment
duty to provide medical care is limited to
conditions that are life-threatening or will
cause permanent disability. In fact, the duty
also applies to medical conditions that may
result in pain and suffering which serve no
legitimate penological purpose."

NON-PRISON CASES
Disabled/Construction of Facilities
Kinney v. Verusalim, 9 F.3d 1067 (3rd
Cir. 1993). The Americans with Disabilities

Act's distinction between new and existing
facilities is now codified in Department of
Justice regulations. At 1071:
With limited exceptions, the regulations
do not require public entities to retrofit
existingfacilities immediately and completely. Rather, aflexible concept ofaccessibility is employed, and entities are generally excusedfrom makingfundamental
alterations to existingprograms and bearing undue financial burdens. 28 C.P.R.
35.l50(a) & (b) (1992). In contrast, the
regulations regarding new construction and
alterations ardubstantially more stringent. When apublic entity decides to alter a
facility, it "shall, to the maximum extent
feasible, be altered in such a manner that
the alteredportion ofthe facility is readily
accessible to and usable by individuals with
disabilities." 28 C.P.R. 35. -151 (b) (1992).
This obligation ofaccessibility for alterations does not allow for non-compliance
based upon undue burden.

Discovery
Montalvo v. Hutchinson, 837 F.Supp. 576
(S.D.N.Y. 1993). Grand jUry minutes and personnel records of police officers should be
produced in discovery only after in camera review. At 580: "Because of these important
interest on both sides of such matters, revelation of such files to adversaries should be
granted where but only where found by an
impartial reviewer to be likely to affect the
outcome of the litigation."

Modification of Judgments
Patterson v. Newspaper & Mail Deliverers'
Union, 13 F.3d 33 (2nd Cir. 1993). The
"flexible standard" of modification stated by
Dowell and Rufo is applicable in this discrimination case which does not involve a
governmental entity. At 38:
... The "institution" sought to be
reformed need not be an instrumentality ofgovernment. If a decree seeks pervasive change in long-established practices affecting a large number ofpeople,
and the changes are sought to vindicate
significant rights ofa public nature, it
is appropriate to apply aflexible standard in determining when modification
or termination should be ordered in
light ofeither changed circumstances or
substantial attainment ofthe decree's
objective. Decrees in this context typically have effects beyond the parties to
the lawsuit, as is true ofthe provisions
for affirmative action remedies in this
case. Though it is important to make
sure that agreements in such litigation
are not lightly modified, it is also
important to provide all concerned with
an incentive to enter into constructive
SUMMER 1994

15

settlements.. ..For plaintiffs, the certainty that an agreement will be
enforced without modification is an
incentive to negotiate a settlement that
achieves some, though not all, ofwhat
might have been obtained in litigation.
For defendants, however, it is the
prospect ofmodification as circumstances change or objectives are substantially reached that provides the
incentive to settle on reasonable terms,
rather than adamantly resist in protracted litigation ....
The court describes its 1983 New York
State Association for Retarded Children
("Willowbrook") decision as "the seminal
case actually applying a more flexible standard."

Class Actions-Certification of
Classes/Mental Health Care
Bradley v. Harrelson, 151 F.R.D. 422
(M.D.Ala. 1993). The father of a mentally ill
prisoner could sue on his son's behalf as next
friend without being declared his legal
guardian, and under these circumstances his

son was an appropriate class representative
for a class of mentally ill prisoners. (The
magistrate judge says the father is the class
representative, but the district judge frames
the question differently.)
The case meets the requirements of commonality and typicality. At 426:
... The plaintiff, through his complaint, has launched a systemic attack
on the way that mental health care is
provided to acutely and seriously men~"
tally ill inmates in the Alabama prison
system .. .. Though there certainly may
be some factual differences between the
individual class members and the
nature and severity oftheir illness, such
individual differences do not defeat certification because there is no requirement that every class member be affected by the institutionalpractice or condition in the same way.
Rule 23(b)(2), Fed.R.Civ.P., is "particularly applicable to suits such as the one sub
judice which involve conditions of confinement in a correctional institution."

Judicial Disengagement!
Modification ofJudgments
Consumers Advisory Bd. v. Glover, 151
F.R.D. 496 (D.Me. 1993). The fact that defendants were in substantial compliance in 1983
did not entitle them under Dowell to vacation
of a consent decree in 1993, since the decree
was intended to create a continuing obligation, and since defendants made no shOWing
of current compliance.
The defendants are not entitled to vacation
under Rufo in the absence of any showing of
changes in factual conditions. Alleged changes in
the law (Youngberg v. Romeo) are characterized by the court as a clarification. The fact that
some provisions are now embodied in state law
does not bring the case within the bar of Pennhurst. At 501 n. 9: since the defendants did not
establish changes in fact or law, they were not
entitled to consideration of whether the proposed modification (vacation) was appropriately
tailored...
John Boston is the director ofthe Prisoners'
Rights Project, LegalAid Society ofNew York.

NO EQUAL JUSTICE • con't.jrompg. 2

latest in stun guns, etc.). In another
example, I recently received an announcement of the 13th Annual American Jail
Association Conference. On the first page,
I am urged to "tap into the 65 billion dollar local jails market" and the following
appears on the second page: "There are
over 100,000 people who work in the
nearly 3,400 local jails in the United
States. Last year alone over $65 BILLION
was spent in the industry. The local jail
market is very lucrative! Jails are BIG
BUSINESS!!" (Emphasis in the original.)
The Business of Punishment
Christie has said that we are all in the
business of inflicting pain. Every sanction
in the criminal justice system involves the
infliction ·of pain-a little, a moderate
amount, or a great deal of pain, but
always pain. I have visited hundreds and
hundreds of jails and prisons in more
than a dozen countries, most recently in
Eastern Europe. They all hurt people.
All of the above leads me to a series of
questions. How can we be in the business
of inflicting pain at the tail end of a criminal justice system that we know is unfair,
that treats people differently because of
race or economic status? Can we do better, can we cure the problem of bad jails
and prisons? I think not. Not unless and
until we do something about the larger
problems of society, the ineqUities, the
racism, the classism. No small task!
In most societies a small group of people have most of the power. This small
group, in order to maintain that power,
appears to need an underclass -largely
made up of the poor and people of color.
One of the ways the people who have the
power keep it is through their system of
punishment, or the threat of it.
If we all agree, as I think we must, that
our current system of criminal justice is
grossly unfair, inequitable and treats people differently based upon impermissible
criteria-race, wealth, class, accessthen we must also agree that we have no
system of justice at all. Justice implies
equality of treatment, indeed, justice
requires equality of treatment. If that is
true, then we have to ask whether a society is justified in imposing any punishment or pain as part of a system or
process that is so fundamentally flawed.
We can debate and disagree about
whether a particular prison practice or a
particular action or inaction in a correctional setting is a violation of human rights
or international law or the Constitution of a
particular country. There can be no disTHE NATIONAL PRISON PROJEG JOURNAL

agreement, however, about the fact that our
currentsystems of criminal justice-of
which corrections is an integral part-violate the most basic human right of all, the
right to equality of treatment under the law.
Conclusion
I have been painting a grim and som~~"
what hopeless picture. Let me close by ~.,
offering some hope and some light. We
are, after all, going to have prisons .during
my lifetime and that of my children and
my grandchildren. On the opening day of
this conference, Supreme Court Justice
Krishna Iyer led us into a discussion of
the importance of humanization. So long
as we have jails and prisons let us at least
try to prevent too much damage to the
inmates. Let us have them function as

much like the outside free world as possible. Recognizing that there are vast social,
political, and economic differences
between different countries, let me
describe one effort:
In the early 1970s in Denmark, it was
decided to develop an experimental
prison in the town of Ringe on the island
of Fyn. The first governor of this prison,
Eric Andersen, was given a very free hand
in its design. As a result of those early
decisions and plans, Ringe today holds
prisoners who are between the ages of 18
and 25, who are recidivists, have sentences of two years or more (which is
long in the Danish system) and must have
had behavioral problems or disciplinary
problems in the prior incarcerations-in
other words, difficult prisoners. Not only
is Ringe co-ed, but women prisoners who
have babies are allowed to keep them with
them in the prison, subject to the warden's approval, up to age three.
The prison at Ringe is small-six separate units of 16 prisoners each for a total
of 96. Each housing unit is a self-contained unit. In the hiring of staff, Andersen had only two requirements. First,
they must never have worked in a prison
before; that way they were more free of
preconceived notions or biases. Second,
they must be experienced carpenters or
cabinet makers. One of Andersen's
desires was to eliminate the distinction

between security staff and treatment staff.
All the officers are reqUired to do both
kinds of work. Since the main industry
was furniture making, officers have to
be able to teach woodworking in the
prison factory.
Officers wear no uniforms. One of the
main goals of the prison is to make it as
much like the real world as possible except that, recognizing it is a maximum
security prison, prisoners are unable to
go beyond the perimeter security without
escort. From'the beginning, prisoners
have been inv61ved in meetings with staff
to develop rules and regulations for the
functioning of the prison. All are required
to work and are paid wages. The local
bank opened a branch inside the prison
where prisoners take care of their own
funds and banking needs. The local grocery maintains a market in the prison
where prisoners shop for and buy their
food. Each of the housing units has a
kitchen and dining room area where prisoners prepare their own food. The prison
administration itself does not involve itself
in this at all. The whole object, of course,
is to require prisoners to do what they
would have to do for themselves when '
they reenter the free world, rather than
have the prison do everything for them
and have them become institutionalized.
About six or seven years ago I invited
Governor Andersen to the United States to
participate in a conference that we were
sponsoring. In connection with that visit he
accompanied me to a meeting of the
American Bar Association's Sentencing and
Corrections Committee. He made a presentation to that group describing the prison at
Ringe, and was subsequently asked about
the cost and the recidivism rates. Andersen
acknowledged that it cost a little more than
the normal maximum security prison in
Denmark because of its still experimental
nature (although today it is no longer an
experiment and many of the innovations at
Ringe are utilized throughout the Danish
prison system). Andersen said that recidivism was not really the point for them; their
first desire was to stop making prisoners
worse, and that rehabilitation, so-called,
would have to take place in the community
itself. At that point a member of the
Committee, a judge from Denver asked, "If
it doesn't work better or cost less, why do
you do it"? Anderson paused, looked over
his glasses and said, "Decency, human
decency. Isn't that enough?"
What I hope we will all take away from
this conference is the importance, at all
times, in our work of remembering those
words and letting those words gUide our
every action. •
SUMMER 1994

17

An Interview with
Theodore Hammett

ince 1986, the National Institute of
Justice (NIJ) publication, HIV/AIDS
in Correctional Facilities, has been
the only national review of policies on the
correctional management of prisoners with
HIV/AIDS. I recently spoke with Theodore
Hammett, senior researcher at Abt Associates and principal author of the annual
Update to the NIJ publication. We spoke
about the Update and changes in the field.
JW: How did the Update begin, and how
do you actually go about gathering the information?
TH: The study was initiated after NIJ
began receiving calls from prison systems concerning the management of
prisoners with HIV/AIDS. Most systems
had no idea what to do. Based on this
lack of knowledge, NIJ initiated a national survey to learn what policies were
emerging. Abt Associates was selected to
contract the survey and the American
Correctional Association (ACA) was
enlisted as a co-sponsor. Since 1986 the
reports have been published yearly. The
Centers for Disease Control have
reviewed drafts since the survey began
and, with the 1992 Update, have joined
NI] as a sponsor.
Historically, tb.e survey has been sent to
state departments of corrections. This
year we are also sending an abbreviated
survey to 50 state correctional facilities,
the idea being to compare what they say is
happening with what is actually happening. We also include information from site
visits to a variety of correctional facilities.
Sites are chosen that have interesting policies or severe problems.
JW: What have been the most significant
changes in the care and management of
prisoners with HIV/AIDS since the first
report in 1986?
TH: There have been a number of
changes. First, there has been a change in
the mentality of the correctional administrators. In the beginning there was more

S

18

SUMMER 1994

mic schools. It's a good idea because it
hysteria and panic. Now administrators ..
brings in outside expertise. With this higher
see HIV/AIDS as a continuing issue. Ot~ef.
level of expertise prisoners almost inevichanges include a decline in systems
tably receive better care. In terms of educapracticing segregation and mandatory
tion and support,'! think the ACE program
testing. There was a sharp jump in manat Bedford Hills is good. There are now a
datory testing between 1986 and 1988,
number of peer-based probut it has been level since
grams that bear replication.
1989. In fact, the number
JW: What are the biggest
of states practicing mandachallenges in the correctory testing didn't change
tions and HIV/AIDS field?
between 1991 and 1992.
TH: I think that achieving
The real change has been
better quality of care in
in the nature of the debate
prison and providing contisurrounding mandatory
nuity of care after release
testing. The old argument
are the key challenges.
was that mandatory testing
There needs to be much
was part of preventing
more use of condoms and
transmission. Now the
bleach. I understand it is a
argument is framed in
difficult position for adminterms of identifying people
Theodore Hammett,
istrators to take because it
for early treatment.
author of HIV/ AIDS in
There has also been an
condones behavior which is
Correctional Facilities.
against institutional rules.
increase in linkages with
But the countervailing argument that it
academic institutions for medical care,
occurs is very important. Bleach is anothparticipation in clinical trials, and medical parole or compassionate release proer, more difficult issue. We've already
grams. We continue to see a higher rate
seen some facilities with de facto policies
regarding access to bleach. But the day
of HIV infection in women prisoners than
we see needle exchanges in correctional
in men. I think services for women in
facilities is very far off, if ever.
prison have lagged behind somewhat. A
lot more needs to be done in that area.
JW: What, in your own research, has
JW: Does the Update function beyond
shown you the most effective ways of
being a statistical analysis?
handling the care and management of
prisoners with HIV/AIDS in correctional
TH: I hope it does. The response to the
facilities?
Update has continued to be very positive.
Not just as a statistical series, but to show
TH: I think that as the World Health
Organization guidelines point out, we
examples of innovative programs and of
should strive to achieve a standard of care
the pros and cons of certain policies. The
comparable to the community, as much as
Update has also been helpful in formulating policies in certain systems.
possible. This means no mandatory testJW: Are there any particularly innovaing, no segregated housing, aggressive
tive programs for prisoners with HIV/
encouragement for people to test, and
educational programs. There also needs
AIDS?
to be intensive psycho-social care and
TH: The 1992 Update includes a segment on a two-year-old program in Rhode
peer support programs. And finally, we
Island that provides a continuity of care
need much better discharge planning for
model. Doctors from Brown University
prisoners to be able to access care on
provide medical care, counseling, and disthe outside. •
charge planning for prisoners with
HIV/AIDS, and follow-up care upon
"1992 Update: AIDS/HIV in Correctional
release. With this type of program more
Facilities" is available free. Call1-800than medical records are passed on732-3277.
prisoners retain the same provider. There
seem to be an increasing number of faciliJackie Walker is the Project's AIDS
ties arranging for medical care with acadeinformation coordinator.
THE NATIONAL PRISON PROJECT JOURNAL

ublications
_ - - L_ _

Bibliography of Material. on
Women in Prison
..

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

lists information on this supiect
available from the National Prison
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.
_~_

Project JOURNAL, $30/yr.
$2/yr. to prisoners.

The Prisoners' Assistance
Directory, the result of a

-~-

QTY, COST

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

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

The National Prison

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.

APrimer for Jail Litigators

_~_

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
Status Report lists by state
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.

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

QTY. COST

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

Fill out and send with check payable to:

Name

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

Address,

_

City, State, ZIP

_

THE NATIONAL PRISON PROJECT JOURNAL

_

SUMMER 1994 19

he following are major developments in the National Prison
Project's litigation program since
March 31, 1994. Further details of any of
the listed cases may be obtained by writing
the Project.

T

Farmer v. Brennan-The Supreme
Court of the United States issued a unanimous opinion on June 6 reversing and
remanding a lower court decision dismissing a prisoner's case. The Supreme Court's
decision allows Dee Farmer, a pre-operative transsexual who was beaten and raped
at USP-Terre Haute, to take her case back
to the lower courts. For a detailed analysis
of this case, see Case Law Report, page 6.
llick v. Miller-A class action lawsuit
filed in May on behalf of inmates at Ely
State Prison (ESP), Nevada, alleges that
"an atmosphere of terror and violence"
pervades ESp, resulting directly from
improper training, supervision and discipline of correctional staff at this remote
facility. The lawsuit alleges excessive use
of force including "frequent and systematic beatings, the intimidating use of dogs,
use of taser guns, chemical gas, electrified
batons (cattle prods), nova (electrified)
shields, and shotguns." It also challenges
ESP:s "shoot to wound" policy. Prisoners
report being shot at for failure to obey
orders to disperse, and even for "stepping
out of line" on the way to the dining room.

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

Medical care at the prison is inadequate. ,." describes the serious fire danger to the
Prisoners are required to pay a fee to
.
prisoners who are held on the third floor
obtain medical care, and to purchase their
of a three-story building where the only
own over-the-counter medications. They
exit is a locked stairway. Medical and
must also pay for personal hygiene items,
mental health care\is grossly inadequate.
reading and writing materials, and postage
Mentally ill prisoners do not receive proper treatment and are housed with the genand phone calls, although most receive no
state pay. The lawsuit also alleges that the
eral population.
special housing units (condemned men's
unit, and disciplinary and administrative
Anderson v. Orr-The NPP has asked
segregation) subject prisoners to a system
the District Court in Indiana to find the
of "terror, deprivation and isolation."
Department of Corrections in contempt of
Other issues include inadequate access to
the court-approved agreement reached in
the law library, lack of proper winter
1989 concerning conditions at Westville
clothing, and visitation hardships caused
Correctional Center (WCC). That agreeby prison lockdown policies.
ment provided for a comprehensive health
care service program and sweeping
Carty v. Farrelly-In a complaint filed
reforms in the psychiatric unit. Defenin June, the NPP seeks relief from uncondants have never fully complied with all
stitutional conditions for men and women,
the conditions of the settlement, and in
both sentenced and pre-trial, held at the
the last year the level of medical and psyCriminal Justice Complex (CJC) on St.
chiatric services has deteriorated signliThomas in the U.S. Virgin Islands. For
cantly. Instead of providing close supervialmost two years, the prisoners have been
sion and intense treatment, extended use
locked up for 23 hours a day in overof physical restraints and seclusion concrowded, filthy cells infested with rats and
tinue as the treatment of choice for the
roaches. They are allowed out for only a
mentally ill, with poor monitoring of medshort period each day to shower and for
ication. For the general prison population
an hour of recreation twice a week. Cells
at WCC, the number of psychiatric and
designed for one person are being used to
general medical staff has not been inhouse four or five, with mattresses on the
creased to the levels promised in the
floor which are frequently soaked by malagreement. Prisoners, including the indifunctioning, overflowing toilets. The
gent, are instructed to buy over-thedrinking water, recycled from the showcounter medications without any clinical
ers, is contaminated. The complaint
assessment of their condition.•

Nonprofit Org.
U.S. Postage

PAID
Washington D.C.
Permit No. 5248

Printed on Recycled Paper

_ _ _2_0_S_U_M_M_E_R_19_9_4

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