A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 9, NO.4, FALL 1994· ISSN 107Q:769X

Crime Bill Guts Educational Programs

The following is an address given by
John Whitley, Warden ofthe Louisiana
State Prison in Angola, to inmate graduates ofparalegal and computerprograms at the prison. He challenges the
idea of ((tougher" sentencing as a means
to control crime and criticizes Congress
for ending educationalprogram funding
for prisoners' (Pell grants).
his is our second graduating class,
and it may well be our last. We're
having a War on Crime; it's the
problem of the year. Politicians fight to
show who can be the toughest. The country is ready to spend billions of dollars on
what politicians say are solutions to crime:
more prisons, longer sentences, more
death penalties, and the famous "three
strikes and you're out." These are supposed to deter violent crime.
Let's look at a state that has tried them
for the past 20 years. Louisiana has
increased its prisons from 3 to 12 since
1975. Louisiana has lengthened sentences

T

Paralegal course graduates, class of 1993-94, were honored last May at
Northwest Missouri Community College's commencement exercises at the
Louisiana State Penitentiary at Angola, Louisiana. Another 39 students
graduated from the computer technology program. Under the new crime bill,
these programs will be eliminated.

until we have the harshest penalties in the
nation. We have executed 21 people since
1983. For the last 15 to 20 years Louisiana
has had laws that for all practical purposes
mean one strike and you're out. Its 12
prisons are full, housing about 17,000
inmates. We have 7,000 more state prisoners in parish jails waiting to come to
prison. Our death row has 43 inmates,
with more on the way. And more lifers are
being kept in prison until they die.
If these policies were effective, Louisiana
would be the safest state in the Union. Is it
measurably safer? Only a few months ago
Louisiana was declared the most dangerous in the nation in which to live.
Congress also wants to end post-secondary education programs for prisoners. The
Clinton Crime Bill will stop Pell grants for
all inmates in prison. This, when statistics

show that education is one of the few
things that work. Politicians aren't sure
what to do about crime, but they're going
to do something. I consider myself to be

tough on crime, but
only if it makes sense.
Violent crime is not
coming from in
prison; violent crime
is coming from young
criminals on the streets. Inmates in prison
are out of the war. Give them sometWng
that can keep them out of the war after
they return to the streets - education.
The better educated a person is, the better

chance he has of
staying out of prison.
It's a shame that
after this administration has fought so
hard to get education
here at Angola, we may see it disappear.
Politicians say it's not fair to taxpayers to
pay for educating prisoners. I say taxpayers are either going to pay now or pay
later.•

New Legal Standard Set on Religious
Rights of Prisoners
aya prison restrict an Orthodox
Jewish prisoner's right to have a
beard; or an American Indian
prisoner's right to not cut his hair? Before
November 1993, the answer was quite
often "yes." Under O'Lone v. Estate of
Shabazz, 482 U.S.
347 (1987), prison
restrictions were
upheld so long as
they were "reasonably related to legitimate penological
objectives."
However, in
November 1993,
President Clinton
signed the Religious
Freedom Restoration
Act [RFRA] which was intended "to
restore the traditional protection afforded
to prisoners to observe their religions
wWch was weakened by the decision in
O'Lone v. Shabazz." S. Rep. No. 111,
103d Cong., 1st;,.Sess. at 9 (July 27, 1993),
reprinted in 1993 U.S.C.C.A.N. 1892,
1899. Under RFRA, the "Government shall
not substantially burden a person's exercise of religion even if the burden results
from a rule of general applicability, except
... if it demonstrates that application of the
burden (1) is in furtherance of a compelling government interest; and (2) is the
least restrictive means of furthering that
compelling government interest." Title 42
U.S.C. §2000bb-1 (Supp. 1994). State and
federal prison regulations must meet tWs
strict standard. See, S. Rep. No. 111 at 912. Notably, Congress specifically rejected
an amendment to RFRA which would have
exempted prisoners' free exercise claims.
Id. at 11.

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FALL 1994

Pre-O'Lone case law in wWch the court
upheld a prisoner's rights may provide
some insight into wWch religious restrictions are inappropriate. However, although
Congress claimed to restore the traditional
test, few pre-O'Lone cases applied both the
compelling interest
and the least restrictive means standards. Thus, cases in
wWch the court
upheld restrictions
provide little insight
into what restrictions
are appropriate. See
John Boston,
Highlights ofMost
Important Cases,
National Prison
Project JOURNAL, Vol. 9, No.9, 7-9 (Spring
1994). In tWs article, we will examine the
new legal standard in light of the prisoner
religious rights case law decided under
RFRA. Following tWs article we list the
post-RFRA prisoners' rights cases.

What is a Sincerely Held Religious
Belief?

j.,

Prior to the Act, courts generally gave
deference to plaintiffs' sincerely proffered
interpretations of the tenets and requirements of their own religion, unless an
asserted claim was "so bizarre; so clearly
nonreligious in motivation, as not to be
entitled to protection." Thomas v. Review
Bd. ofIndiana Employment Sec., 450
U.S. 707, 713 (1981); see also United
States v. Lee, 455 U.S. 252, 257 (1982)
(Supreme Court &ccepted the plaintiff's
contentions conf~rning the fundamental
beliefs of the Atllish religion by stating,
"[i] t is not within the 'judicial function
and judicial competence,' to determine
whether appellee or the Government has
the proper interpretation of the Amish
faith; 'courts are not arbiters of scriptural
interpretation"'); Hernandez v. C.I.R.,
490 U.S. 680, 699 (1989).
Since passage of the Act, a few courts
have confronted this issue in the midst of
prisoner rights litigation. For example, in
Allah v. Menei, 844 ESupp. 1056 (E.D.Pa
1994), a district court invalidated a
Pennsylvania prison regulation enabling

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

AClU

Foundotion which seeks to

strengthen and protect the rights of adult and iuveniie

Substantial Burden on a Person's
Exercise of Religion

To prove a violation of the Act the plaintiff must "make a threshold shOWing that
Ws exercise of religious rights has been
substantially burdened." Boone v.
Commissioner ofPrisons, 1994 U.S. Dist.
LEXIS 10027 at *23 (E.D.PaJuly 21,
1994). Since neither "religion" nor "substantial burden" are defined by the Act,
recent courts have examined pre-enactment precedent to help define these two
terms. See also, S. Rep. No. 111 at 12
(discussing role federal courts play in differentiating between sham and sincerely
held religious beliefs).

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 Proiect 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. Moterials 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

I

'JI

I

prison officials to determine whether one
faith is theologically identical to another.
"The defendants have thus far barred
recognition of the Temple of Islam, a faith
group that the plaintiff believes is substantially different from the Nation of Islam.
The defendants seem to assert that prison
officials may judge whether the plaintiff's
honestly believed contentions of difference
between his faith and the Nation of Islam
are correct. The government has a constitutional obstacle to making any such judgments." Id. at 1065.
In Campos v. Coughlin, 854 F. Supp
194, _ , 1994 U.S. Dist. LEXIS 5721,
*44 n.n (S.D.N.Y. May 3,1994), the
court stated in dicta that individual religious practices which vary slightly from
traditional religious doctrine do not necessarily invalidate a claim. "That some
adherents choose to follow certain tenets
of a religion in a manner different than
the majority, does not alter the genuine
character of the religious tenet or the
importance to the adherent of the manner
in which he or she follows the tenet." Id.
Nevertheless, the Campos court paid a
great deal of attention to the opinions of
experts concerning the importance of
beads to adherents of the Santeria religion.ld.
As in Campos, other courts have not
::>
readily accepted religious interpretations e
~
advocated by prisoner plaintiffs absent
c:
other evidence. Without "documentation ~
or affidavits" in support of his argument, ::g
the Eighth Circuit rejected a prisoner's
~
claim that he had not violated Muslim
~
tenets requiring fasting, by eating while ,~.
injured. See Brown-El v. Harris, 1994
~
u.s. App. LEXIS 14379, *2 (8th Cir. June ~
13,1994). Adistrict court in Rust v.
~
Clarke, 1994 U.S. Dist. LEXIS 5663 at *2
n.l (D.Neb. April 21, 1994), requested
additional information concerning the
beliefs and practices of members of the
Asatru religion from "published theology
texts or similar objective sources." When
bringing a claim under the Act, plaintiffs
should be prepared to provide evidence
concerning the religious nature of their
beliefs, especially when the religious practice or belief is not one generally known
or recognized.

freedom, "by pressuring him or her to
commit an act forbidden by the religion
or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates. This
interference must be more that an inconvenience: the burden must be substantial
and an interference with a tenet or belief.
that is central to religious doctrine."',
Boone, 1994 u.s. Dist. LEXIS 10027 at
*22, (citing Graham v. Commissioner,
822 F.2d 844,850-51 (9th Cir. 1987»,

In Furtherance of a Compelling

Government Interest

Any state action that places a substantial
burden upon religious freedoms must be
in furtherance of a compelling state interest. "Only regulations based upon penological concerns of the 'highest order'
could outweigh an inmate's claims." S.
Rep. 111, 103d Congo at 11. Safety and
security within the prison will continue to
meet this high standard. See Campos,
1994 u.s. Dist. LEXIS 5721 at *34 (citing

Q.

<J)

What is a Substantial Burden?

Once a plaintiff demonstrates that a
restrictive policy has an impact on a bona
fide religious belief or practice, the court
will examine whether the policy imposes a
"substantial burden" upon a plaintiff's
ability to practice this religion. Agovernmental activity places an impermissible
burden upon an individual's religious
THE NATIONAL PRISON PROJECT JOURNAL

A sweat lodge frame which was built at the South Dakota Penitentiary in the
early 1980s. Sweat lodges are used in Sioux purification rites. Heated rocks are
dropped in the pit, and blankets are wrapped around the frame to trap
the steam.

aff'd sub nom. Hernandez V.
Commissioner, 490 U.S. 680, 688-700
(1989).
Certain limitations on state intrusion in
the religious lives of prisoners can be
identified within the Boone court's opinion. Prisoners must be allowed the opportunity to pray and to meet with other
inmates to worship within a group. The
state may not completely deny a prisoner
access to religious literature. Disciplinary
detention is not a per se, substantial burden upon an individual's religious freedom. However, even in disciplinary detention the inmate must have the opportunity
to pray and read religious texts. Boone,
1994 U.S. Dist. LEXIS 10027 at *24.

Procunier V. Martinez, 416 U.S. 396,413
(1974» ("Prison security and penological
institutional safety goals are a most compelling government interest"); Lawson V.
Dugger, 844 F. Supp. 1538, 1542 (S.D.
Fla. Feb. 16, 1994). However, "inadequately formulated prison regulations and
policies grounded on mere speculation,
exaggerated fears, or post-hoc rationalizations will not suffice to meet the Act's
requirements." S. Rep. 111, 103d Congo at
10. Courts should be cognizant of attempts
by prison officials to "manufacture security rationales for practices that are in reality based on financial or administrative factors," (Boston, supra), interests which are
not normally considered compelling.
FALL 1994

3

Least Restrictive Means of Furthering
that Compelling Interest

Although the policy may further a compelling state interest, courts will nevertheless invalidate prison policies that do not
represent the least restrictive means of
effectuating that interest. Recently a
Florida Department of Corrections' policy
totally banning Hebrew Israelite literature
from its prisons was overturned on this
basis. Lawson, 844 F. Supp. 1538. In
response to the defendants' argument that
the literature fostered racial hatred and
therefore caused a security risk, Lawson v.
Wainwright, 641 F. Supp. 312, 327 (S.D.
Fla. 1986), aff'd 840 F.2d 781 (1987)
(1994 court affirmed and readopted initial
findings of fact), and after reviewing the
group's literature, the court wrote:
"The documents do not, on their face,
advocate or encourage any unlawful or
disruptive actions by inmates (or any other
person), and no testimony was presented
which would suggest that their introduction and use within the prisons presents a
'clear and substantial threat' to any of the
defendants' legitimate penological goals."
On the contrary, the evidence shows
that, in those institutions in which the subject literature was made available to
inmates (either officially or surreptitiously), no incidents of violence or disciplinary
problems occurred which could be attributed to the use of these documents for
study and worship.
Id. at 327. Thus, the court concluded,
the ban was not the "least restrictive
means" to assure prison security. Lawson
v. Dugger, 844 F. Supp. at 1542.
Plaintiffs may suggest to the court other
less burdensome means of furthering the
government interest. The prison's policy
will then be upheld only if the defendants
are able to justify not using the less intrusive, proposed alternative. For example, in
Campos, 1994 U.S. Dist. LEXIS 5721, a
pair of prisoners challenged Department
of Corrections' directives which prohibited
prisoners from wearing certain religious
artifacts, including religious beads. The
prison officials alleged that the systemwide use of beads as gang membership
identification symbols caused "friction,
rivalries and even violence among
inmates." Id. at *5. The plaintiffs, however,
stated that the beads functioned solely to
"protect [them] from danger and from evil
to which [they] might otherwise be vulnerable," and to "bring [them] good fortune,
peace, purity and good health." Id. at *13
(alterations in original).
In granting a preliminary injunction, the
court ruled that a complete ban on the
wearing of beads was not the "least
4

FALL 1994

restrictive means" of furthering the state's
compelling interest in combatting the
spread of gangs within the prison system.
The defendants were unable to provide the
court persuasive evidence that wearing
beads under clothing posed a security
risk; but instead merely "articulated a
speculative difficulty associated with the
enforcement of the directive if they permitted inmates to wear their beads under
their clothing." Id. at *37.
In the future, prison authorities will
need to employ more narrowly defined
policies in order to further security interest and avoid infringing upon prisoners'
religious rights. As these cases demonstrate, defendants have the burden to
come forward with evidence that any policy burdening religious freedoms is the

least restrictive policy. They may also be
reqUired to prove that other, less restrictive policies suggested by the plaintiffs will
not advance the same compelling interest.
Conclusion

Maya prison restrict an Orthodox
Jewish prisoner's right to have a beard; or
an American Indian prisoner's right to not
cut his hair? The answer now is most likely
"no." Congress has speCifically protected
the religious freedom of prisoners by
enacting RFRA. Pre-Act case law, favorable
to prisoners, seemingly invalid after
O'Lone, is now useful precedent when litigating religious freedom claims against
correctional officials. For example, in
Teterud v. Burns, 522 F.2d 357 (8th Cir.
1975), the Eighth Circuit ruled that prison
officials violated the civil rights of an
American Indian by prohibiting him from
wearing long braided hair, a fundamental
element of his Cree religion. The holding
in Teterud should be good law in light of
RFRA.
In addition, many prisons have begun to
update their regulations in order to comply with RFRA. State correctional officials
in Oklahoma rescinded their prohibition
on long hair and beards immediately following the passage of the RFRA. The
Department of Corrections cited the
expense of litigating religious rights cases,
the absence of security breaches, and the

passage of RFRA for its decision to rescind
its policy. Oklahoma Department of
Corrections Internal Memorandum from
Director Larry Fields, (November 10,
1993). See also Anthony Thorton, Prisons
End Grooming Battle: Inmate Policy to
Allow Long Hair, The Daily Oklahoman,
December 14, 1993. As the Oklahoma
DOC's decision indicates, correctional officials must now formulate policy that
respects the religious rights of prisoners
or face intense judicial scrutiny. Byenacting the RFRA, Congress took a substantial
step forward in protecting individual religious freedoms:, •
Prisoners' Rights Cases Decided Under
the RFRA as of August 28, 1994:

Merritt-Bey v. Delo, 1994 u.s. App. LEXIS
14892 (unpublished decision) (8th Cir. May
12, 1994) (summary judgment for defendants
affirmed when members of the Moorish
Science Temple of America failed to show that
their exercise of religion was substantially burdened by the prison officials refusal to buy
materials with canteen funds from a particular
Temple).
Brown-El v, Harris, 26 F.2d 68 (8th Cir.
April 15, 1994), reh'g denied, 1994 U.S. App.
LEXIS 18404 Ouly 21, 1994) (court upheld
policy in which an inmate who broke his fast
during Ramadan would no longer be provided
meals after dark).
Smith v. Elkins, 1994 U.S. App. LEXIS 4293
(unpublished decision) (9th Cir. Jan, 31,
1994) (Muslim inmate, who alleges that he was
praying in Arabic, was disciplined for making
an utterance capable of being heard by others
in a language other than English; case was
remanded to consider restriction under the
RFRA).
Canedy v. Boardman, 16 F.3d 183, 186 n.2
(7th Cir. Feb. 8, 1994) (court noted, in a nonreligious rights case, that "the constitutionality
of [the RFRA] - surely not before us hereraises a number of questions involving the
extent of Congress' powers under Section Five
of the Fourteenth Amendment").
Bates v. Oregon Department ofCorrections,
1994 U.S. Dis!. LEXIS 11423 (D. Ore. August
11, 1994) (call out system for all non-Catholic
and Protestant religious services does not violate constitutional rights of inmates even under
the RFRA).
Prins v, Coughlin, 1994 U.S. Dis!. LEXIS
10564 (S.D,N.Y, Aug. 3, 1994) (court denied
reversal of transfer ofJewish inmate; the inmate
claimed that he was not being provided adequate kosher food at the new institution, but the
court found that he was provided adequate food
and that he was a security risk at the old institution).
Boone v. Commissioner ofPrisons, 1994
U.S. Dis!. LEXIS 10027 (E.D.Pa, July 21,
THE NATIONAL PRISON PROJECT JOURNAL

1994) (summary judgment granted for defendants when officials confiscated only religious
documents that indicated that prisoner was
organizing an "unauthorized and potentially
coercive paramilitary-type group;" when 15day cell restriction, in which prisoner could
not teach and lead group religious discussions,
was the result of prisoner's failure to follow
regulations; and when requirement of prior
approval for group meetings did not substantially interfere with prisoner's ability to practice his faith).
Campos v. Coughlin, 854 F. Supp 194, 1994
U.S. Dist. LEXIS 5721 (S.D.N.Y. May 3,
1994) (court granted plaintiffs' preliminary

injunction forbidding directive which prohibited inmates from wearing religious beads).
Rodriguez v. Coughlin, 1994 U.S. Dist.
LEXIS 5832 (S.D.N.Y. May 4, 1994) (same as
Campos above) .
Rust v. Clarke, 851 F. Supp. 377 (D. Neb.
April 22, 1994) (defendants' motion for summary judgment denied, without prejudice,
when the defendants failed to discuss RFRA.',
Followers of the Asatru religion sued Nebraska
DOC Services after being denied privileges) .
Altah v. Menei, 844 F. Supp. 1056 (E.D. Pa.
Feb. 23, 1994) (defendants' motion for summary judgment denied when inmates asked that
the Temple of Islam be recognized as a distinct

religion from the Nation of Islam) .
Lawson v. Dugger, 844 F. Supp. 1538 (S.D.
Fla. Feb. 16, 1994) (total ban of literature of
the Hebrew Israelite Church not least restrictive means).

Nick Straley is a third-year law student
at Cornell University who worked at the
Prison Project during the summer of
1994. He is currently working as a law
clerk with the D. C. Public Defender
Service. Stephanie Morris will graduate
from the GeO(getown Law Center in May
1995. She ha~ clerked at the Prison
Project sinciSeptember 1993.

When Parents Are Sent to Prison
group of young people at Edwin
Gould Services for Children in New
York City recently expressed some of
the feelings they have and the problems
they encounter in the following comments:
"It's horrible." "It's depressing." "I can't
see my mom every day." "She's not home
when I come home from school." "I miss
her cooking." "There is no one to tell me
a story, to tuck me into bed." "No matter
how hard I try, I still feel guilty about this
myself." "I lost a good role model." "I was
an Astudent, then my grades ran down
and I stopped going to school. Not one
teacher asked me why or sought to take an
interest in me."!
Other concerns, such as financial needs,
housing assistance, and parental attachment, loom larger once the surface of this
issue is scratched, but, by and large, the
child welfare and corrections literature is
rather remiss on this question. The
American Bar Association's Center on
Children and the Law's "Children on Hold"
Project is currently completing a threeyear investigation of how local jails, the
police, and child welfare agencies respond
to the children of arrested and convicted
parents. But there is very little information
available about what specifically happens
to children when their parents are imprisoned. Do they live with the non-incarcerated parent, other relatives or grandparents? Are they placed with non-relatives?
Or, do they become homeless?
Moreover, what kinds of financial entitlements do they need or receive: Aid to
Families with Dependant Children (AFDC)?
Foster or kinship care payments? Or are
they left with economically strapped families who now have to struggle even harder

A

THE NATIONAL PRISON PROJECT JOURNAL

with scant or fragile fiscal resources? Will they
be adopted by a family
member or by a traditional foster parent?
Parental rights may be
terminated, effectively
cutting them off from
further contact with
their mother or father;
they may live in another
context-open adoption, legal guardianship,
or kinship care. Or will
they drift through life
with little sense of permanency?
Imprisoned Women
and Their Children
Nationally the number ~
of incarcerated women ~
has soared dispropor- ~
tionately to the number ::E
of men incarcerated
When a parent is imprisoned, can parental rights
over the past decade.
be terminated?
And the accelerated
cent were in the care of friends. Only
confinement of African-American women
approximately 11 percent of the children
has expanded even more dramatically. 2
were in foster homes or similar settings. 4
The more women are incarcerated, the
In 1991, the ABA's Children on Hold
more their children are victimized. 3
Project started with the assumption that
According to the most recent Bureau of
"increased drug enforcement efforts have
Justice Statistics report on "Women in
resulted in greater numbers of arrests of
Prison," two-thirds of the 39,000 women
women who are sole caretakers." In
in state prisons in June 1991 had at least
developing its research design, however,
one child under the age of 18 and only 9
the project expanded its scope to "exampercent of these women were visited by
ine system-wide responses of law enforcetheir children. More than one-half of the
ment, child welfare, and corrections offiwomen said that at least one of their minor
cials in any case in which a sole parent is
children was living with grandparents,
arrested for any type of crime (except
over 25 percent were living with their
mothers and/or fathers, about 20 percent
con't. on pg. 14
were living with other relatives, and 4 perFALL 1994

5

A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
VOL. 9, NO.4, FAll 1994· ISSN 1076-769X;

Highlights of Most
Important Cases
CONTEMPT
The Supreme Court's parting gift of the
1993-94 term to civil rights litigators was not
a civil rights case but a contempt case arising
from a labor dispute. However, it has significant implications for enforcement of civil
rights injunctions, including those in prison
cases, where the difficulties of obtaining
compliance are notorious and the need for
enforcement measures is frequent.
Unfortunately, the Court's concern was
entirely for the dangers of arbitrary action or
other abuse of power by judges who have
become too personally invested in the proceedings, and not for the practical problems
of judges and litigants faced with protracted
noncompliance with remedial orders.
In International Union, United Mine
Workers ofAmerica v. Bagwell, 114 S.Ct.
2552 (1994), a state court judge had
imposed fines totalling $64 million-which
it characterized as coercive civil finesagainst a labor union for violating an
injunction against various unlawful activities
during a strike. Ihe strike was settled, and
the parties agreed to vacate the fines, but
the court refused to vacate those it had
made payable to state and local governments, totalling about $52 million. To collect the fines, it appointed a special commissioner, who became the petitioner in the
Supreme Court.
The issue put to the Supreme Court was
whether substantial noncompensatory fines in
a fixed amount, payable to the court or government, could be awarded in a civil contempt proceeding, or whether a criminal contempt prosecution was required. (A narrower
question-whether civil fines could survive
the parties' settlement of the main disputewas mooted by the Court's decision, and a
third question-whether these fines violated
6

FALL 1994

the Eighth Amendment's Excessive Fines
Clause-was not reached.)
The Court rejected the rather straightforward arguments the parties put before it. The
Union argued that because the injunction was
primarily prohibitory, violations of it should
be deemed criminal. The Court observed that
the distinction between mandatory and prohibitory is difficult to draw and that the same
obligation may sometimes be stated in either
form. 114 S.Ct. at 2561. The special commissioner, conversely, argued that as long as the
fines had been announced in advance, they
were civil, since the adverse party could
avoid them by complying with the order.
Under this argument, a prospective fine
schedule such as the trial court adopted is
indistinguishable from a system of per diem
fines. However, the Court declined to permit
advance notice to be the touchstone of civil
contempt, since advance notice of prohibited
conduct and the sanctions to be imposed is
no more than the traditional requirement of
due process in criminal law. 114 S.Ct. at
2561-62.
The Court preferred broadly to review the
differences between civil and criminal contempt, starting with the usual proverbs that
civil contempt is coercive in nature, criminal
contempt is punitive, and the two are distinguished by the nature of the sanction and not
by the court's subjective intent. 114 S.Ct. at
2557, citing Hicks v. Feiock, 485 U.S. 624,
636 (1988). In taking this approach, the
Court acknowledged but then disregarded the
substantial body of scholarly opinion that the
civil/criminal distinction is "unworkable"
and should be abandoned. 114 S.Ct. at 2557
n.3 and materials cited.
The Court began by taking several forms of
contempt relief out of the discussion by reaffirming that they are civil in nature. First, it
observed that "[t]he paradigmatic coercive,
civil contempt sanction" is to lock up the contemnor until he obeys the court's command.
By contrast, a fixed and immutable sentence
of imprisonment is punitive and criminal
because the contemnor cannot avoid or
abbreViate it by complying after it is imposed.
The same distinction applies to fines. "Where

a fine is not compensatory, it is civil only if
the contemnor is afforded an opportunity to
purge." 114 S.Ct. at 2558, citing Penfield Co.
v. SEC, 330 U.S. 585, 590 (1947). For the
same reason, per diem fines imposed for each
day of noncompliance are civil; they bear a
"close analogy to coercive imprisonment,"
since they "exert a constant coercive pressure" but can be prospectively purged.
The Court declared itself" [I] ess comfortable" with "the analogy between coercive
imprisonment and suspended, determinate
fines." The Court had held such fines to be
civil in nature in United States v. United
Mine Workers ofAmerica, 330 U.S. 258
(1947), and lower federal and state courts
had relied on that case "to authorize a relatively unlimited judicial power to impose
noncompensatory civil contempt fines." 114
S.Ct. 2559. However, the Court noted that in
the intervening years it had "erected substantial procedural protections in other areas of
contempt law," and went on to curb the
lower courts' broad reading of the UMW
holding (without, however, overruling the
case itself).
Having framed the issue in terms of the
nature of the remedy imposed, with emphasis
on the ability of the litigant to purge, the
Court turned to an entirely different set of
concerns: the kinds of fact patterns that have
invoked the contempt power and the degree
to which these call for more or less procedural protection. It noted that petty contempts committed in the court's presence and
sanctioned immediately may be adjudicated
with summary procedures, and that indirect
contempts such as noncompliance with discovery may be adjudicated civilly because
they go to the court's ability to adjudicate the
proceedings before it.
However, the Court went on to make a new
kind of distinction:
... [I]ndirect contempts involving discrete, readily ascertainable acts, such as
turning over a key or payment ofajudgment, properly may be adjudicated
through civilproceedings since the need
for extensive, impartialfactfinding is
less pressing.
THE NATIONAL PRISON PROJECT JOURNAL

For a discrete category ofindirect contempts, however, civilproceduralprotections may be insufficient. Contempts
involving out-of-court disobedience to
complex injunctions often require elaborate and reliable factfinding....Such contempts do not obstruct the court's ability
to adjudicate the proceedings before it,
and the risk oferroneous deprivation
from the lack ofa neutralfactfinder may
be substantial.... Under these circumstances, criminalproceduralprotections
such as the rights to counsel and proof
beyond a reasonable doubt are both necessary and appropriate to protect the due
process rights ofparties and prevent the
arbitrary exercise ofjudicialpower.
114 S.Ct. at 2560-61.
The Court concluded that the fines at issue
were criminal. It cited the fact that the contempts were committed outside the court's
presence and did not otherwise implicate the
court's ability to maintain order and adjudicate the proceedings before it. The contempts
did not involve "simple, affirmative acts," but
rather "widespread, ongoing, out-of-court
violations of a complex injunction," and the
court "effectively policed petitioners' compliance with an entire code of conduct that the
court itself had imposed." The fines were
"serious," totalling over $52 million. "Under
such circumstances, disinterested factfinding
and even-handed adjudication were essential,
and petitioners were entitled to a criminal
jury trial." 114 S.Ct. at 2562. In concluding,
the Court observed, "Our decision concededly imposes some procedural burdens on
courts' ability to sanction widespread, indirect contempts of complex injunctions
through noncompensatory fines." 114 S.Ct.
at 2563.
Thus, an opinion that began by emphasizing
the nature of the civil contempt remedy, with
specific reference to the ability to purge fines
once they have been imposed, ends byemphasizing an entirely different set of considerations, Le., ftwctional concerns about the need
to guarantee impartiality and reliable factfinding when dealing with "out-of-court disobedience to complex injunctions."
It is not clear what, if anything, the discussion of complex injunctions contributes to
the result. Aclose reading makes it clear that
this discussion does not qualify the distinction the Court initially made between sanctions that can be purged after they are
imposed and sanctions that are not purgable.
Before declaring the instant fines criminal,
the Court stated, "The fines are not coercive
day fines, or even suspended fines, but are
more closely analogous to fixed, determinate,
retrospective criminal fines which petitioners
had no opportunity to purge once imposed."
114 S.Ct. at 2562 (emphasis supplied). Thus,
THE NATIONAL PRISON PROJECT JOURNAL

it appears that those remedies identified early
in the opinion as coercive civil remedies
remain so, regardless of the nature of the
order that is violated. Similarly, in that earlier
discussion, the Court stated without qualification that a fine is "civil only if the contemnor
is afforded an opportunity to purge," and that
"a 'flat, unconditional fine' totalling even as'
little as $50" with "no subsequent opportunity to reduce or avoid the fine through compliance" is criminal. 114 S.Ct. at 2558. Itts
implausible that the Court, having restated
prior law in such unequivocal terms, would
overrule it in whole or in part without making
its intentions explicit. See Downey v. Clauder
_ F.3d _ , 1994 WL 382469 at 5 (6th
Cir., July 25, 1994) (reaffirming civil/criminal distinction based on ability to purge, citing Bagwell) .
It is therefore hard to discern what kind of
contempt relief could be deemed civil in connection with one injunction but criminal in
connection with another. It appears that the
entire distinction between complex injunctions and "discrete, readily ascertainable
acts" is analytically superfluous, and that the
Court's conclusion that the fines in this case
were criminal was compelled by its analysis
of remedy alone. The concern about complex
injunctions may have helped persuade the
Court to reject the view that advance notice of
the possibility of sanctions renders the sanctions civil. But neither the complexity nor the
simplicity of an injunction appear to have any
actual consequences for the procedures
required to impose particular contempt
remedies.
Justice Scalia's concurring opinion makes
considerably more of the complex injunction
point, arguing that modern courts have abandoned traditional limitations upon the scope
of injunctive decrees, and suggesting that any
civil enforcement of some orders is inappropriate. He concluded: "We will have to decide
at some point which modern injunctions sufficiently resemble their historical namesakes
to warrant the same extraordinary means of
enforcement." 114 S.Ct. at 2552. Thus, he
seems to advocate an approach that would
turn entirely or mostly on the nature of the
injunction rather than the remedy; but no
other Justice joined his opinion.
The other concurring opinion, by Justice
Ginsburg joined by ChiefJustice Rehnquist, is
notable mainly for its reticence and adds
nothing to the analysis. Justice Ginsburg
agreed with the majority's view that the mere
announcement of penalties in advance is
insufficient to render those penalties civil. In
addition, she believed that the fact that the
private parties had settled their dispute negated any claim that the fines conferred any benefit on the private complainant. 114 S.Ct. at
2567. (The latter point would have sufficed to

dispose of the case without any broader discussion of civil versus criminal contempt.)
But she offered no affirmative views on the
more general question of how the
criminallcivilline should be drawn.
Conspicuously absent from any of the three
opinions is a consideration of the unusual
enforcement problems to which "the modern,
complex decree" is often a response. Nor is
serious attention given to the different challenges that different varieties of complex
injunctions may pose to an enforcing court.

'\
What Criminal Contempt Involves
Criminalcontempt is a peculiar hybrid. It
has been described as sui generis, a phrase
historically used in justification of the denial
of procedural rights such as trial by jUry.
United States v. Twentieth Century Fox Film
Corp., 882 F.2d 656,661 (2nd Cir. 1989),
cert. denied, 493 U.S. 1021 (1990); see also
United States v. Dickinson, 465 F.2d 496,
513 (5th Cir. 1972) (characterizing contempt
as "the last vestige of the so-called 'common
law crimes"'). Although modern decisions
have extended due process protections to
contempt prosecutions, the Supreme Court
has adhered to the view that contempt is an
inherent power of courts not dependent onlegislative authorization, although it may be
regulated to some degree by legislative enactment. Young v. United States ex ret. Vuitton
et Fils S.A., 481 U.S. 787, 795-96 and n.8
(1987) .
For this reason, Bagwell's holding that particular sanctions may only be imposed
through "the criminal contempt process"
does not necessarily invoke the full panoply
of federal criminal procedure, including
court rules and sentencing guidelines. For
that matter, it does not invoke every provision
of the Constitution; there is no right to a
grand jury indictment for contempt, Green v.
United States, 356 U.S. 165, 183-85 (1958),
and the "vicinage" clause of the Sixth
Amendment, which requires that all criminal
prosecutions be tried in the state and district
in which the crime was committed, does not
apply to criminal contempt prosecutions.
United States v. Twentieth Century Fox Film
Corp., 882 F.2d at 666, citing Myers v.
United States, 264 U.S. 95 (1924).
More basic constitutional protections do
apply in criminal contempt proceedings,
including the rights to notice of charges, the
presumption of innocence, counsel, proof of
guilt beyond a reasonable doubt, calling of
witnesses, a public trial before an impartial
judge, and trial by jury. Bagwell, 114 S.Ct. at
2561; Young v. United States ex reI. Vuitton
et Fils S.A., 481 U.S. at 798-99. Some rights,
however, will be significantly altered in their
application by the prosecution's origin in a
civil injunctive proceeding.
FAll1994

7

The Fifth Amendment privilege against selfincrimination should have little practical effect
in most institutional reform cases because
injunctive actions against public officials are,
for all practical purposes, brought against the
governmental entity that they serve. Hutto v.
Finney, 437 U.S. 678, 699 (1978); see
Kentucky v. Graham, 473 U.S. 159, 166
(1985) (offiCial capacity action "is, in all
respects other than name, to be treated as a
suit against the entity") (citation omitted). The
privilege against self-incrimination belongs
only to natural persons; it may not be invoked
by organizations, United States v. White, 322
U.S. 694, 698-99 (1944)-presumably
including municipal corporations and state
governments. Thus, self-incrimination should
be an issue only if the contempt prosecutor
seeks relief against particular defendants in
their individual capacities or seeks relief that
by its nature is individual, such as incarceration.
Even when seeking relief against individuals, the prosecutor will be able to rely on and
use as evidence the prior record in the civil
proceeding. The contempt prosecutor should
also be able to use discovery materials,
including deposition testimony, obtained by
the plaintiffs either in the main action or in a
subsequent civil contempt proceeding. See
United States v. Handley, 763 F.2d 1401,
1405-06 (1Ith Cir. 1985) (supposed misconduct by civil plaintiffs' counsel in obtaining
depositions would not be imputed to the government in criminal case, absent evidence
that the government knew of the misconduct
at the time, and where civil suit was independently viable and was not filed solely to
obtain evidence for the criminal proceeding),
cert. denied, 474 u.s. 951 (1985).
The Double Jeopardy Clause, while applicable to contempt proceedings, In re Bradley,
318 U.S. 50, 52 (1943), may not constitute a
Significant limit on the courts' criminal contempt power. The Clause does not prohibit
imposition of both a remedial civil sanction
and a criminal saJJction for the same conduct. United States v. Halper, 490 u.s. 435,
447-49 (1989). As one commentator
observed, "The double jeopardy prohibition.. .is difficult to assimilate to a process in
which multiple sanctions serving different
purposes may be appropriate for a single
contumacious act-and where continued
refusal to obey may be seen to constitute multiple acts of contempt."!
For purposes of plaintiffs' counsel in institutionallitigation, the most important
attribute of criminal contempt is that, at least
in federal court, it may not be prosecuted by
the plaintiffs' counsel. Afederal court "ordinarily should first request the appropriate
prosecuting authority to prosecute contempt
actions"; if the public prosecutor declines,
8

FAll1994

the court may then appoint a private prosecutor. (The government construes statutes providing for the operation of the federal courts
to permit paying attorneys for this purpose,
albeit only at the rates at which Department
ofJustice attorneys are compensated. 481
l,'
U.S. at 807 n.17.) However, the court may
not appoint "counsel for an interested party
in the underlying civil litigation." Young v.
United States ex reI. Vuitton et Fils S.A., 481 .
U.S. at 801-02 (relying on federal judicial
supervisory power and not the Constitution).
Young's reasoning probably also precludes
the prosecution of criminal contempt by a
special master or other official previously
appointed by the court to help enforce the
underlying injunction. Young rests on the
sharp distinction between "the public interest
in vindication of the couri's authority" and
"[ t] he private party's interest in obtaining the
benefits of the court's order." 481 U.S. at
804-05. Amaster or monitor charged by the
court with ensuring that an injunction is
implemented may be on the wrong side of the
Young distinction regardless of that official's
impartiality with respect to the parties and
their litigation positions. Cf Matter ofHipp,
Inc., 895 F.2d 1503, 1509 (5th Cir. 1990)
(holding that a trustee in bankruptcy is disqualified under Young because he is charged
by law to represent the estate's interests
against claimants). 2
Thus, once a contempt proceeding has
been declared to be criminal in nature, plaintiffs' counsel loses control of its prosecution,
and it is put in the hands of someone who
probably will have no prior acquaintance
with the case-certainly not the intense
familiarity that plaintiffs' counsel will usually
have. The problem of unfamiliarity can be
mitigated by permitting plaintiffs' counsel to
assist in but not control the prosecution,
which Young does not foreclose, 481 U.S. at
806 n. 17, and which some lower courts have
endorsed. Person v. Miller, 854 F.2d 656,
663 (4th Cir. 1988), cert. denied, 109 S.Ct.
1119 (1989); Polo Fashions v. Stock Buyers
International, 760 F.2d 698, 704-705 (6th
Cir. 1985), cert. denied, 482 U.S. 905
(1987). Under most circumstances, however,
additional delay and complication will be
introduced if the prosecution is to be led by a
newcomer to the proceeding.
In addition, the loss of control by plaintiffs'
counsel may complicate efforts to settle the
proceeding by plea bargain or by conditional
dismissal. The Supreme Court in Young
warned against the temptation of a prosecutor who is also counsel for a private litigant
to use the criminal process to generate information for the civil proceeding, or to use the
civil claims as bargaining leverage in the
criminal prosecution. 481 U.S. at 806.
However, contempt proceedings in institu-

tionallitigation are often resolved by modifying the underlying court order to provide
additional relief or to make the existing relief
more efficacious. Would this kind of trade-off
present the same conflict of interest as the
horrible examples cited in Young? The
answer might depend on how closely the proposed modification hewed to enforcement of
the existing order as opposed to additional
substantive relief.

Avoiding Criminal Contempt
The way to avoid'peing forced into proceeding by criminal contempt is clearer in
some respects thad in others. One way to
avoid the entire Bagwell controversy is not to
seek sanctions but rather to request additional prospective relief that is designed to end
the noncompliance, either by enhancing the
substantive terms of the underlying judgment
or by adding additional remedial measures
such as requirements of record-keeping and
reporting, external monitoring, or requiring
defendants to establish internal mechanisms
of monitoring and accountability. Such relief
is clearly coercive rather than punitive and,
indeed, can be granted under Rule 60(b),
Fed.R.Civ.P., without resort to the contempt
power at all.
Often, however, such relief is ineffectual,
and it becomes necessary to impose sanctions
of some sort, either to focus the defendants'
attention on the problem or to motivate them
to comply with commands they find unpalatable. Whenever possible, plaintiffs should
seek relief in the form of compensatory fines
or per diem fines. Fines in a fixed amount
that are suspended to give the defendants a
chance to comply may also be permissible
under Bagwell, but the Court's observation
that the analogy between these fines and traditional coercive relief is "[1] ess comfortable" than for per diem fines may signal its
willingness to declare such fines criminal in a
future case.
In class actions, compensatory relief may
be difficult to fashion because of the large
number of individuals affected and the difficulty of measuring their injuries. In contempt
as in ordinary damage proceedings, compensatory awards must be based on evidence of
actual loss. Elkin v. Fauver, 969 F.2d 48 (3d
Cir.) , cert. denied, 113 S.Ct. 473 (1992); In
re Chase & Sanborn Corp., 872 F.2d 397,
400-01 (11th Cir. 1989). However, courts
have shown some willingness in class actions
to allow standardized or liqUidated awards
for nonmonetary injuries as long as there is
some evidentiary basis for the amount. See
Doe v. District ofColumbia, 697 F.2d 1115
(D.C.Cir.), separate statements filed, 701
F.2d 948 (D.C.Cir. 1983); Dellums v. Powell,
566 F.2d 167, 195 (D.C.Cir. 1977) and id. at
209"10 (Leventhal, J., concurring); Dellums
THE NATIONAL PRISON PROJECT JOURNAL

v. Powell, 566 F.2d 216,227 (D.C.Cir.
1977); Langley v. Coughlin, 715 F.Supp.
522,558-59 (S.D.N.Y. 1988). In addition, at
least one court in a contempt proceeding has
granted compensatory relief prospectively on
a per diem basis-in effect, ordering liquidated damages. Benjamin v. Sielaff, 752
F.Supp. 140, 148-49 (S.D.N.Y. 1990) (awarding $150 a day to inmates held for more than
24 hours in receiving rooms and other nonhousing areas).
In some cases, however, the injury caused
by noncompliance-for example, from failure to complete an exercise yard or implement a sick call or disciplinary proceduremay be much more diffuse, affecting the
entire class. Whether courts may make a
compensatory award to the entire class-one
that might, for example, be paid into a fund
to provide amenities for inmates-has not
been directly addressed by the courts in
those terms.
There is, however, an intriguing reference
in Bagwell itself on this subject. At the end of
the opinion, Justice Blackmun stated that its
holding "leaves unaltered the longstanding
authority of judges...to enter broad compensatory awards for all contempts through civil
proceedings. See, e.g., Sheet Metal Workers
v. Equal Employment Opportunity Comm'n,
478 U.S. 421 (l986)." 114 S.Ct. 2563 (parallel citations omitted). Sheet Metal Workers
was a Title VII employment discrimination
case against a union in which the court
imposed a number of contempt remedies
including a $150,000 fine. The fine was
placed in a fund designed to increase nonwhite membership in the union and its
apprenticeship program and was then used to
finance recruiting efforts, summer and parttime jobs, services for nonwhite apprentices,
etc. The Supreme Court rejected the argument
that this sanction was criminal, noting that it
was designed to secure compliance with prior
orders, and that if the union purged its
comtempt it could recover any money remaining in the full~' 478 U.S. at 443-44.
But the Court in Sheet Metal Workers did
not describe these fines as compensatory;
rather, it said, they were "clearly designed to
coerce compliance with the court's orders."
Id. at 444 (emphasis supplied). Whether the
citation in Bagwell and the phrase "broad
compensatory awards" represent an intent to
re-characterize the Sheet Metal Workers
relief, or just a hasty misreading of that case,
is unclear. What is clear from Bagwell and
Sheet Metal Workers is that, regardless of its
characterization as coercive or compensatory, monetary relief may be awarded in civil
contempt proceedings for the purpose of
advancing compliance with the violated
order. Thus, for example, Bagwell leaves
intact the courts' ability to use contempt fines
THE NATIONAL PRISON PROJECT JOURNAL

to establish bail funds to help remedy violations of overcrowding orders. See
Palmigiano v. DiPrete, 710 F.Supp. 875,
887-88 (D.R.I. 1988), affd, 887 F.2d 258
(lst Cir. 1989); Mobile CountyJail Inmates
V. Purvis, 581 F.Supp. 222, 224 (S.D.Ala.
1984). The same is true of the courts' power,
e.g., to use fine money-or to turn it over to.
a court-appointed master or administrator;,to build facilities or to provide equipmel).t or
services required by a prior order. See·
Cabrera V. Municipality ofBayamon, 622
F.2d 4,8 (lst Cir. 1980) (directing district
judge to consider using contempt fines to pay
a contractor to conduct land rehabilitation).
1 Dudley, Earl C., "Getting Beyond the CivilJCriminal
Distinction: ANew Approach to the Regulation of
Indirect Contempts," 79 Va.L.Rev. 1025, 1088 n.248
(1993).

The question whether a court may hear a criminal
proceeding for out-of-court contempt without a
prosecutor at all has not been addressed by the
Supreme Court, and the lower courts have differed
on the point. Compare In re Davidson, 908 F.2d
1249 (5th Cir. 1990) (holding the failure to appoint
a prosecutor reversible error) with In re Grandjury
Proceedings, 875 F.2d 927,933-34 (1st Cir. 1989)
(holding that courts should "routinely" appoint a
prosecutor for out-of-court contempts but that failure to do so was not reversible where the judge was
impartial and the evidence was simple); see Dudley,
Earl C., "Getting Beyond the Civil/Criminal
Distinction: ANew Approach to the Regulation of
Indirect Contempts," 79 Va.L.Rev. 1025, 1059 and
n.l40 (1993) (disapproving the practice).
2

Other Cases
Worth Noting
U.S. COURTS OF APPEALS

EmergencieslProcedural Due
ProcesslLaw Libraries and Law
BookslReligion-Practices-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 frivolous. 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 so~e legitimate penological
interest prevelliing the accommodation of a
prisoner's religious restrictions, food which
is anathema to an inmate because of his religion is at least arguably inadequate" (footnotes omitted).

ResJudicala and Collateral Estoppel
Burgos v. Hopkins, 14 F.3d 787 (2nd Cir.
1994). The plaintiff brought a §1983 action
based on an assault by another inmate. He
had previously filed a state habeas corpus
action based on the same incident which had
been dismissed after a hearing. He had also
brought an earlier §1983 action that had
been stayed pending the completion of state
proceedings.
Since compensatory damages are not
recoverable in a state habeas corpus proceeding, the habeas judgment is not res judicata in this §1983 suit. The fact that the
plaintiff could have brought a damages claim
in state court is beside the point. The case is
decided entirely on state law grounds under
the Full Faith and Credit clause of the
Constitution, without any reference to
whether a contrary holding would deny due
process.
Procedural Due ProcessDisciplinary Proceedings,
Administrative Segregation
Conner V. Sakai, 15 F.3d 1463 (9th Cir.
1994), superseding 994 F.2d 1408 (9th Cir.
1993). Hawaii prisoners have a liberty interest in avoiding placement in disciplinary segregation because state regulations limit official discretion by requiring that the inmate
admit guilt or that the disciplinary committee
be presented with substantial evidence in
order for segregation to be imposed.
At 1467: "Prison disciplinary committees
may not deny a defendant the right to call
important witnesses solely for the sake of
administrative efficiency." Aform stating that
witnesses were unavailable "due to the move
to the medium facility and being short staffed
on the modules" did not meet the state's burden of justifying the denial of witnesses. The
right to witnesses has been clearly established since 1974 and the defendant is not
entitled to qualified immunity on this record.
FALL 1994

9

Summary Judgment/Correspondence
Phelps v. U.S. Federal Government, 15
F.3d 735 (8th Cir. 1994). An allegation that
prison personnel kept plaintiff's incoming
and outgoing letters in storage without telling
him that his mail was not being transmitted
and delivered stated a constitutional claim.
The district court should not have granted
summary judgment without giving the plaintiff
notice that it intended to convert the defendants' motion to dismiss to one for summary
judgment.
Good Time/Habeas Corpus
Duncan v. Gunter, 15 F.3d 989 (lOth Cir.
1994). Anew state statute doubled the
amount of "earned-time credits" available to
prisoners. The Department of Corrections
refused to apply it retroactively. The plaintiffs' request for an injunction requiring the
Attorney General to inform the Department of
Correction of the changes in the law and
direct it to comply was tantamount to a
request for a ruling on their entitlement to
earlier release and therefore could be pursued only in a habeas action after exhaustion
of state judicial remedies.
Hazardous Conditions and
Substances/Cruel and Unusual
Punishment-Proof of Harm
McNeil v. Lane, 16 F.3d 123 (7th Cir.
1994). An allegation that the defendants
allowed asbestos-covered pipes to exist
directly outside the plaintiff's cell and said
they could not transfer him to another cell
are insufficient to establish deliberate indifference. At 124: "To state a claim under the
Eighth Amendment, McNeil must, at minimum, allege facts sufficient to establish that
the defendants possessed a total unconcern
for McNeil's welfare in the face of serious
risks."
The plaintiff also failed to allege facts "sufficient to establish that he was exposed to
unreasonably high levels of asbestos. Had, for
example, McNeil b!;en forced to stay in a dormitory where friable asbestos filled the air," a
claim might have been stated. "Exposure to
moderate levels of asbestos is a common fact
of contemporary life and cannot, under contemporary standards, be considered cruel
and unusual." (l25)
Searches-Person
Canedy V. Boardman, 16 F.3d 183 (7th
Cir. 1994). The male plaintiff complained of
being viewed naked by female staff. His complaint should not have been dismissed. In
such cases, the equal employment rights of
female staff must be balanced against the privacy rights of inmates. At 187:
The cases therefore hold that sex is not
a bona fide occupational qualification
10

FAll 1994

preventing women from working in alling sanitation, safety and health; fire safety;
and overcrowding and protection from harm,
male prisons, and that pat-down searchbut refused to dismiss portions concerning
es and occasional or inadvertent sighting
access to courts.
by female prison employees ofinmates in
The district court was not obligated to foltheir cells or open showers do not violate
. low the agreement of the parties in dismissing
the inmates' right to privacy. But that
right is violated where this observation is ;i' portions of the decree. At 351:
Because the "power andprestige" of
more intrusive (like a strip search, in the .
the court rests behind a consent decree, a
absence ofan emergency) or a regular
district court is not simply empowered,
occurrence.
but is actually obligated, to exercise its
Non-English Languages/
independent judgment regarding compliance with a decriM!. Otherwise, a court
Correspondence-Non-Legal
would simply beqhme a rubber stamp for
Thongvanh V. Thalacker, 17 F.3d 256 (8th
the parties, an¢.ihe policing role ofthe
Cir. 1994). The plaintiff, a native of Laos who
spoke some English, challenged a requirecourt would become meaningless.
The district court's authority is not limited
ment that all his correspondence be in
to determining whether a proposal is
English except for correspondence with his
"unworkable or unconstitutional." At 352:
parents and grandparents, who spoke no
"[A] stipulation does not deprive a court of
English at all. The prison had a general rule
that all correspondence must be in English;
its inherent supervisory authority under
Fed.R.Civ.P. 60(b)." Moreover, the decree
Spanish was excepted because there was a
itself implies that the court is obligated to
prison employee fluent in Spanish and availexercise its judgment and determine whether
able to translate, and there was evidence that
compliance has been achieved and terminaother exceptions had been made.
The rule was unconstitutional under the
tion is warranted.
Turner standard as applied to the plaintiff
Attorneys' Fees and Costs
because the Iowa Refugee Service Center was
McGill V. Faulkner, 18 F.3d 456 (7th Cir.
prepared to translate prisoners' letters free,
1994). Costs of over $3,000 were properly
and the prison practice was to read only ranimposed against a prisoner proceeding in
domly selected letters.
The jury awarded the plaintiff $4,000. The
forma pauperis after a jury verdict in his
favor was overturned on appeal. The defendistrict court reduced this to $2,000 with no
dants garnisheed the plaintiff's inmate trust
explanation, and the appeals court ordered
account to recover the costs.
the award restored.
As to appellate costs, the plaintiff waived
Consent Decrees!)udicial
his right to challenge the order by failing to
contest the bill of costs within 10 days of serDisengagementJModification
vice. As to trial court costs, the plaintiff failed
ofJudgments
to establish (as opposed to allege) his indiUnited States V. State ofMichigan, 18
gency, and in any case indigency does not
F.3d 348 (6th Cir. 1994). Aconsent decree
entered into between the federal government
automatically require a waiver of costs. At
460: "... [P]risoners like McGill [must] learn
and the state defendants provided that defento exercise discretion and judgment in their
dants may apply to "terminate the jurisdiclitigious activity and accept the consequences
tion" of the court after all terms had been
of their costly lawsuits." The court then
complied with. The parties moved to "dismiss" portions of the decree (all of them
analogizes the award of costs to a restitution
except for mental health care) and to modify
order against a criminal defendant!
the decree to provide for the termination of
This plaintiff was raped in a protective cusjurisdiction as to any provision if the defentody unit whose occupants were commingled
with punitive segregation inmates. The appeldants were in compliance with constitutional
late decision, McGill V. Duckworth, was de
requirements. The court granted the requestfacto overruled by Farmer V. Brennan.
ed modification, but changed it to refer to
compliance with the consent decree. It
refused to dismiss any portion of the decree
Dental Care
without receiving an updated compliance
Patterson V. Pearson, 19 F.3d 439 (8th
report, and ordered a review by the indepenCir. 1994). The district court should not have
dent expert previously assigned to monitor
granted summary judgment to a prison denthe decree. It refused to dismiss the provitist in light of the plaintiff's allegation of a
sions concerning mental health care because
three-week delay in providing dental treatment for a painful condition.
it viewed them as inextricably intertwined
with the medical provisions such that the two
should be reviewed together. After receiving
the report, it dismissed provisions concernTHE NATIONAL PRISON PROJECT JOURNAL

Procedural Due ProcessDisciplinary Proceedings
Reeves v. Pettcox, 19 F.3d 1060 (5th Cir.
1994). The plaintiff's plea of guilty to a disciplinary offense did not waive his claim that
the failure to give him notice of the relevant
rule denied due process. While such a waiver
might have been valid in a criminal proceeding, the court declines to enforce it in a disciplinary proceeding because of the lack of
other safeguards.
At 1061: "An inmate is entitled to prior
notice, or 'fair warning,' of proscribed conduct before a severe sanction may be
imposed." The plaintiff put his food tray outside his cell; the record showed that inmates
entering segregation are not given copies of
the rules and are not given an opportunity to
read the unit bulletin board.

DISTRICT COURTS

Statutes of Limitations/
Pro Se Litigation
Higgenbottom v. McManus, 840 F.3d 454
(W.D.Ky. 1994). The court applies the "mailbox rule" of Houston v. Lack to find the
plaintiff's complaint timely even though it
arrived at the clerk's office after the statute of
limitations had run. The prison keeps no
records of when items are mailed, but since
the complaint was only a day late, it clearly
had to be in the prison mail system by the last
day of the limitations period.
Law Libraries and Law Books
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 OCIC.
Defendants c.ite no law to support the
novelproposition that a state may avoid
its constitutional obligations to inmates
by contracting with a thirdparty to
house those inmates. The only reported
cases discussing this question are
squarely to the contrary....
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
THE NATIONAL PRISON PROJECT JOURNAL

because it was not limited to a few days and
the defendants 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.
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." Id.
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." The court rejects the unsupported
claim that a missing filling can't cause great
pain. Id.: "The need for treatment is a medical
judgment that ought to be made by a qualified
physician or dentist."

Searches-Person
Canell v. Beyers, 840 F.Supp. 1378
(D.Ore. 1993). The plaintiff alleged that visuFALL 1994

11

al body cavity searches were conducted in the
view of other employees and inmates.
Qualified immunity does not protect "gratuitous or unnecessary viewing" of unclothed
prisoners (1380). At 1381: "Even assuming
the viewings were inadvertent, a jury could
find that the location and manner in which
the search was conducted made such viewings inevitable, and the invasion of privacy
was not offset by overriding penological justifications." The court rejects the argument
that a single viewing is never actionable. At
1381: "A single, isolated inadvertent viewing
is probably not actionable unless the search
was conducted in a manner that exhibited
total disregard for the inmate's privacy
rights." In addition, "repeated incidents of
'inadvertent' viewings of different prisoners
can amount to a violation when prison officials fail to take reasonable steps to prevent
such incidents at a de minimis cost to legitimate penological considerations."

Use of ForcelDamagesAssault and Injury
Davis v. Moss, 841 F.Supp. 1193 (M.D.Ga.
1994). The plaintiff alleged he was beaten in
the aftermath of a riot and that he was also
thrown down a fire escape while handcuffed.
The court disbelieves the first allegation but
believes the second, which was corroborated
by a counselor, and finds it motivated by malice and ill will. The court awards $10,000 in
compensatory damages for pain and suffering
from injuries including disk damage that
required surgery. The court declines to award
damages for lost earning capacity because the
plaintiff's employment record was so meager
that such damages would be speculative.
Punitive damages of $25,000 are awarded.
Protection from Inmate
AssaultIDamages-Assault and
Injury, Punitive
Holloway v. Wittry, 842 F.Supp. 1193
(S.D.Iowa 1993). The plaintiff in an inmate
assault case faill:,d to prove that there was a
pervasive risk of harm in the prison industries because the record showed that fewer
assaults occured in that area than in other
areas of the prison. In addition, defendants
responded to the risk that did exist by prOViding staff supervision at all times and making
security checks on the tools. However, a
defendant who witnessed the altercation and
did not sound his security beeper was deliberately indifferent. (The court disbelieves this
officer's testimony that he didn't see it.)
Compensatory damages of $500 are awarded; damages are limited because some of the
plaintiff's injury was inflicted before the
defendant observed the assault. Punitive damages of $1,000 are awarded.

12

FALL 1994

Recreation and Exercise
jones v. Stine, 843 F.Supp. 1186
(W.D.Mich. 1994). The plaintiff, held in voluntary "protective segregation," was permitted only one hour a day of recreation, five
days a week, in a "module cage," alone and
without exercise equipment. These allegations stated a claim, but the defendants are
entitled to qualified immunity from damages.
At 1192: "Physical exercise is a necessity of
civilized life. Unnecessary or extreme restriction of inmates' opportunity for fresh air,
exercise and recreation may rise to the level
of an Eighth Amendment violation."
Medical Care-Standards of
Liability-Deliberate Indifference,
Serious Medical NeedslDamagesAssault and Injury
Delkerv. Maass, 843 F.Supp. 1390 (D. Ore.
1994). The plaintiff sustained a painful
ingUinal hernia before his arrest. After
months of delay in prison, he was told that
surgery to repair it is "elective" and that the
prison did not prOVide "elective" procedures.
It was not disputed that surgery was the usual
treatment for the plaintiff's condition outside
prison. After a court-appointed expert said
his condition was both dangerous and
painful, the defendants provided surgery,
allegedly "for strategic legal reasons."
At 1398:
While an honest difference ofmedical
judgment would ordinarily not constitute deliberate indifference, ...afederal
court is not required to blindly defer to
the judgment ofprison doctors or administrators in determining whether there
has been deliberate indifference to an
inmate's serious medical needs....
Moreover, the recommendations ofthe
prison doctors were not based solely
upon their professional medical opinions, but on legal and economic considerations as well. I accept the prison doctors' medical opinions that the injury was
not imminently life-threatening, but a
federal court need not defer to a prison
doctor's legal opinion as to the extent of
the state's duties under the Eighth
Amendment.
Throughout most ofthis case, defendants asserted that the Eighth
Amendment duty to provide medical care
is limited to conditions that are lifethreatening or will cause permanent disability. That is incorrect. The duty also
applies to medical conditions that may
result in pain and suffering which serve
no legitimate penologicalpurpose.
At 1399: "Prison officials may establish
general guidelines, but the ultimate treatment
decision must be made on a case-by-case
basis, giving due consideration to the

inmate's subjective complaints of pain and
restricted activity, and also the inmate's psychological needs, where appropriate." Id.: "I
also reject any suggestion that prison officials
may avoid their duty to provide medical treatment by the simple expediency of labelling
such treatment as 'elective.''' (citing cases)
At 1400:
Where surgery is elective, prison officials may properly consider the costs and
benefits oftreatment in determining
whether to authorize that surgery, but the
words "elective:surgery" are not a talisman insulating-prison officials from the
reach ofthe$ighthAmendment. Each
case must be evaluated on its own merits.
The defendant doctor was deliberately
indifferent. He was aware of the plaintiff's
problem and decided to withhold surgery,
even though medical professionals agree that
surgery is the standard treatment, it would
not pose an unreasonable risk, and it would
probably have alleviated the symptoms. At
1401: "The evidence also establishes that Dr.
Vargo's decision was significantly influenced
by non-medical factors," including that the
injury was sustained before the plaintiff came
to prison, which "has little relevance" to
proper medical treatment.
The defendant doctor was not entitled to
qualified immunity. At 1397: "A reasonable
public official would have known that there
are circumstances in which the Eighth
Amendment requires prison officials to pay
for 'elective' surgery to repair a hernia, and
that a categorical refusal to repair incarcerated hernias violates the Eighth Amendment."
The plaintiff was injured by the lengthy
delay in prOViding the surgery in that he suffered pain, anxiety, and inability to complete
a program that would have yielded good time
credit. The court awards $5,000 in compensatory damages.

Modification ofJudgments/Crowding
Inmates ofthe Suffolk County jail v.
Rufo, 844 F.Supp. 31 (D.Mass. 1994). Once
more, the sheriff moves to modify the prohibition on double-ceIling, and this time he
actually gets some relief.
The court relies on the fact that the singleoccupancy feature was an "important part" of
the decree and that it had important consequences for the design of support services in
the facility. The sheriff's plan is flawed in that
it does not give adequate consideration to
other aspects of the consent decree; increasing the jail's population would affect every
inmate because of the dramatic reduction of
space per inmate for support services and
out-of-cell time. The plan does not proffer an
adequate basis for comparing its costs and
benefits (including the loss of common
space) to the costs and benefits of developing
THE NATIONAL PRISON PROJECT JOURNAL

I

other facilities. It does not make an adequate
showing of participation in the decision-making process by other responsible officials. It
also asks for double-celling in 161 cells even
though the jail was only 82 inmates over
capacity at the time of the request, and subsequent increases seem to support the need for
additional facilities. At 36: "If data are to be
used as a basis for decision-making, both the
data gathering and the inferences to be drawn
should be shown to be supportable by creditable standards of statistical method."
Rather than rejecting the request, the court
provisionally determines that the sheriff can
alter up to 100 cells for double-bunking and
can use them to the extent necessary to hold
Suffolk County pretrial detainees.

Pre-Trial Detainees
Lattany v. Four Unknown U.S. Marshals,
845 F.Supp. 262 (E.D.Pa. 1994). Allegations
that a pre-trial detainee was photographed
without consent and without a law enforcement justification stated a constitutional
claim for violation of privacy rights, but the
right was not clearly enough established to
defeat qualified immunity.
Allegations that the Marshals did not take
the plaintiff to a hospital until three hours
after a vehicle accident which caused pain in
the plaintiff's back and neck and numbness
in his legs and which rendered him unable to
play basketball stated a claim of deliberate
indifference to serious medical needs.
The plaintiff made sufficient allegations of
racial animus to support a conspiracy claim
under §1985(3).

Federal Officials and
PrisonslProtection from
Inmate Assault
Barrett v. United States, 845 F.Supp. 774
(D.Kan. 1994). The alleged negligence of
Leavenworth officials in investigating alleged
threats to the decedent by Muslim inmates
was not the proximate cause of his murder by
another inmate.. since the murderer was a
member of another group, the Moorish
Science Temple. At 778: "Prison officials have
a duty to exercise ordinary and reasonable
care to safeguard a prisoner in their custody
from attack by other prisoners." Claims
based on the failure to keep the plaintiff in
administrative segregation and the failure to
continue the investigation they had begun into
threats against the plaintiff were barred by
the discretionary function exception to the
Federal Tort Claims Act.

Use of Force/Attorneys' Fees
Stacy v. Stroud, 845 F.Supp. 1135
(S.D.W.Va. 1993). The plaintiff was beaten
and denied medical care in jail and was
awarded $4,147.25 by a jury. The court

rejects the defendants' argument that special
circumstances existed for denying fees
because the suit was a private action brought
only for the plaintiff's benefit. At 1139: "The
conduct of public officials is an important
public concern. Citizens and taxpayers necessarily benefit when public servants are
deterred in their efforts to exceed their lawful
authority. "
The damage award was not technical, nominal or de minimis. At 1139: "... [T]he suit
here implicated important public concerns
and the damages sought need not be proportionate to the damages eventually obtained.
Moreover, the fee award need not be proportionate to the damages."

Pendent Claims; State Law in Federal
CourtslMedical Care
Cherry v. Chow, 845 F.Supp. 1520
(M.D.Fla. 1994). The decedent was admitted
to jail for DUI and told medical staff that he
consumed about a case of beer daily. For two
days he asked for medical attention for alcohol withdrawal symptoms, and his wife
informed jail employees that he had a history
of DT's. He was put in the jail infirmary,
where he was shackled to a bed while hallucinating. He walked or jumped off his bed, hit
his head on the floor as a result of the leg
shackie, and died.
The decedent was a third-party beneficiary
of the contract between the county and the

THE NATIONAL PRISON PROJECT JOURNAL
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. . . . .,_ _
""""_~'__ _.er . . . .

FALL 1994

13
_

private medical care provider and his representative could sue the provider for breaching the contract.
The court declines to strike allegations
about prior incidents of medical neglect
because they are intended to establish a policy or custom of the municipality or corporation rather than to show the character of particular individuals.

NON-PRISON CASES
AIDSlMedical Privacy
Doe v. City ofNew York, 15 F.3d 264 (2nd
Cir. 1994). At 267: "Individuals who are
infected with the HIV virus clearly possess a
constitutional right to privacy regarding their
condition." This is a right to "confidentiality," rather than "autonomy and independence
in decision-making." [d. "... [T]he right to
confidentiality includes the right to protection
regarding information about the state of one's
health."
Modification ofJudgments
Ensley Branch, N.A.A.C.P. v. Seibels, 20
F.3d 1489 (lIth Cir. 1994). At 1503-04: The
court summarizes the law of modification
under Rufo, which articulated a "twopronged approach" under which the court
first determines whether there has been a significant change in facts or law. Only if "the
moving party satisfies this requirement" does
the court move on to determine whether the
modification is appropriately tailored.
Modification may be justified by unanticipated developments or reasons that, '''for reasons unrelated to past discrimination or to
the fault of the parties,' make it extremely difficult or impossible to satisfy obligations that,
while imposed by the decree, are not part of
its fundamental purpose.... However, a district court should not modify 'long-standing
goals in consent decrees merely because the
goals have not been achieved.'"
Use of Force ..
Smith v. Delamaid, 842 F.Supp. 453
(D.Kan. 1994). In a Fourth Amendment
excessive-force case, the plaintiff "must
establish that he suffered significant injury or
that the defendant's actions were sufficiently
reprehensible." However, "[a] §1983 plaintiff need not prove that he is permanently disabled or disfigured in order to establish a
constitutional violation." (459)
The fact that the plaintiff could not identify
which officer committed which act did not
bar liability, since there was no dispute as to
which officers were present and involved in
the offending conduct. At 459: "An officer is
liable under §1983 for the use of excessive
force by another officer if he or she was in a
14

FAll1994

position to prevent the excessive force, but
failed to do so."

Use of ForcelMunicipalities
Brown v. City ofMargate, 842 F.Supp.
515 (S.D.Fla. 1993). In a use-of-force case,
municipal liability was supported by evidence ii'
of a city policy of "informally resolVing com-<
plaints without written documentation" and :.
by evidence that its response to two prior
incidents was inadequate. At 518: "The City
also conceded that all victims, witnesses,
and officers present at the scene of an incident were not always questioned, statements
were not taken, and police and hospital
reports were not always reviewed with an eye
toward isolating and resolVing material
discrepancies."
Modification ofJudgments/
In Forma Pauperis
Koch v. Bridge, 151 F.R.D. 334 (S.D.Ind.
1993). Under Rule 59(e), Fed.R.Civ.P., a
motion to alter or amend the judgment must
be served as well as filed within 10 days of
the entry of judgment, even in a case that was
dismissed as frivolous and in which no defendant has entered an appearance. Where the
pro se plaintiff filed a motion but did not
serve it, it was not timely, and therefore had
to be treated as a motion under Rule 60,
which is not subject to the 10-day limit.
However, Rule 60 may not be used to obtain
relief from errors of law in a judgment.
This is one of the worst technical traps I
have ever seen applied to a pro se litigant.
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.

PARENTS • can't.

crimes related to
child abuse and
neglect), regardless of whether
that sale parent is
female or male."s
This article
focuses on
women prisoners and their children.
Nevertheless, male prisoners who serve as
primary or parti~ipating caregivers to
their children must also be recognized. In
doing so, analy~is must recognize the differences between the two populations. In
New York, for instance, most male prisoners are from New York City yet they are
confined throughout the state, at great distance from their home communities.
Women in prison in New York are also
largely from New York City but two of the
three medium- and maximum-security
prisons for women are relatively accessible to the city by public transportation.
New York State Takes a Step Forward
and Stops

New York State is one of the few states
to address permanency planning for the
children of incarcerated parents. However,
prior to 1983, according to Philip Genty, a
law professor at Columbia University and
associate director of its Child Advocacy
Clinic, child welfare agencies "ha(d) no
legal duty to provide an incarcerated
mother with the social service necessary
to address her unique needs and to
improve and strengthen her parental relationship. New York law contained no
express mandate that visits and other services be provided to the mother at the
prison. An agency could therefore simply
ignore an incarcerated mother's needs,
just as an incarcerated mother could
ignore her own parental duties" (emphasis in the original). 6
In the early 1980s, however, several
efforts effectively focused on the plight of
these women and their children, and in
1983 legislation was passed (Chapter 911
of the Laws of 1983) mandating that
incarcerated parents have the same duties
and responsibilities as non-incarcerated
parents and were now susceptible to termination of parental rights (TPR) proceedings. With passage of the 1983 law,
incarcerated parents were now entitled to
the delivery of social services at the
prison, prison system cooperation with
the child welfare system, and even the
right to visit their children outside of the
prison if appropriate. With this law, the
legislature eliminated the automatic loss
THE NATIONAL PRISON PROJECT JOURNAL

of parental rights upon a mother's or
father's incarceration.
The New York State Council on Children
and Families also urged improved visiting
arrangements, strengthened aftercare services, further interagency coordination,
and additional expenditures. However, the
Council warned that "none of these steps
will be significant unless New York State
Law clarifies the rights of incarcerated
parents and their children. Unless parents
are allowed and encouraged to participate
in the lives of their children fear of official
intervention will all too often prevent parents from reaching out for help, the help
that may enable them to provide a stable
supportive home for their children."
"Previously," Jane M. Spinak, also at
Columbia, recently reported to the Task
Force on Permanency Planning for Foster
Children, "the deprivation of civil rights
which occurred when a person was incarcerated included the loss of parental
rights. The incarcerated parent now has
the obligation of maintaining contact with
the child or the agency at least once every
six months to preclude a finding of abandonment, and the obligation of visiting
with or planning for the child to preclude
a finding of permanent neglect. The period
of incarceration no longer tolls the time
period during which the parent is expected to plan for or with the child. On the
contrary, both the parent and the agency
caring for the child now have affirmative
statutory duties to fulfill."7

of child welfare agencies toward bringing
children to the prison to meet with their
mothers. Amajor issue that the Committee
examined was how to enable women to
become their own advocates.
The Committee started with approximately 10 women, and while the number
of women involved has varied over the

years, the will of the group to continue
meeting has never waned. The Committee
identifies not only the rights of imprisoned
mothers but also their responSibilities.
Historically, social service agencies have
resisted sending caseworkers to the prison
and the Committee has invested much time
in altering this non-functioning relationship. The Committee was influential in passage of the 1983 legislation and the group
has reviewed its implementation over the
past decade. Early this year, the Committee
released a handbook for incarcerated
mothers on New York State laws, regulations, and policies regarding incarcerated
parents with children in foster care. 9
New Programs in New York

Keeping the Issues Alive

New York State does not collect data on
how many children of women confined to
its prisons are in foster care, kinship foster care, or other child-caring relationships. In 1988, Adela Beckerman, professor of Family Support Studies at Nova
University in Fort Lauderdale, FlOrida, surveyed 53 mothers in four New York State
prisons and tlJey reported 109 children in
foster care. "At the time of the mother's
arrest," Beckerman notes, "41 percent of
the children were already living in foster
care, and another 41 percent were living
with their mother or with other relatives."s
Inmate Foster Care Committee

Since 1983, women prisoners themselves
have been the most consistent and persistent monitors and evaluators of New York
State laws and social service regulations on
imprisoned women and their children.
The Inmate Foster Care Committee of
The Children's Center at the Bedford Hills
Correctional Facility in Westchester County,
New York was founded in 1981 in large
part to counter the attitudes and practices
THE NATIONAL PRISON PROJECT JOURNAL

The only programs currently receiving
preventive services funding from the New
York City Child Welfare Administration are
the Hooper Home Alternative to
Incarceration Program, operated by the
Women's Prison Association, and the
Incarcerated Mothers Program, run by
Edwin Gould Services for Children.
Hooper Home Alternative to
Incarceration Program

In March 1993, the Women's Prison
Association (WPA) , located on the Lower
East Side of New York City, began working
with the New York City Child Welfare
Administration (CWA) to integrate foster
care prevention services with alternatives
to incarceration (ATI) programming. The
program is based at Hooper House, a residential facility named after Isaac T.
Hooper, a 19th century prison reform
advocate. In this unique program, staff
provide both ATI and foster care prevention services. The goal of the ATI program
is to offer a non-incarcerative sanction
guided by intensive supervision and the
delivery of needed social services, includ-

ing relapse prevention support; individual,
group and family counseling; HIV and
health care education and counseling; and
training to enhance the self-esteem and to
improve the decision-making of the
women in the program. The foster care
prevention services are intended to either
keep the children of female offenders out
of foster care or to reduce children's
length of stay in foster care.
"By keeping the mother out of jail," the
WPA posits, "the Hooper Home model also
is designed to 1}eep children out of, or
limit the time they are in, foster care. The
program design includes visitation and
parenting workshops and discussion
groups as well as on-site recreational
activities for mothers and children.
Women can practice what they learn onsite as they care for their own children and
others with staff supervision."lo
Incarcerated Mothers Program

In 1986, Edwin Gould Services for
Children, a multi-service agency with
offices throughout New York City, started a
foster care prevention program for incarcerated mothers in the New York City
region. In most cases, a program case
worker meets with recently arrested
women on Rikers Island, where women
are detained in New York City. Less often,
the program starts cases several months
prior to a woman's release. In general, the
program likes to begin services delivery as
soon as possible.
The program works with the incarcerated mothers, children, and their families to
prevent children from being placed into
foster care and to strengthen families'
capacities to maintain themselves as functioning units.
In New York, the program staff visit
Rikers Island once a month, upstate prisons at Bedford Hills and Taconic twice a
month, and a New York City-based work
release facility at Bayview twice a month.
Women in the community on work release
visit the program directly.
The Incarcerated Mothers Program also
has several associated support groups-a
caretakers group for relatives who care for
children without foster case assistance, a
released mothers group, a domestic violence group, and a recently established teen
group. The teen group-some of whom are
quoted at the start of this article-allows
young people to express and address their
own experiences of being left at home when
their parents are incarcerated. I I
Conclusion

New York State has made significant
changes in the way it meets the needs of
FALL 1994

15

children of incarcerated parents, but more
must be done. Other states must also
review their policies and practices.
Indeed, a national study of the relationship
between child welfare, criminal justice,
and correctional systems is in order.
Considerations of what more might be
done are made more difficult with the
incarceration of the primary care-providing parent(s). The first question is
whether there are alternatives to the incarceration of parents, primary careproviders in particular. 12 These alternatives
need to be used more extensively than in
current practice.
Alternatives to incarceration are more
than a matter of specific program options
or penalties; they are also a matter of
criminal justice policy. Serious review and
analysis of experiences with alternatives to
incarceration is needed. One clear lesson
emerging from the U.S. experience is that
unless a preference is explicitly expressed
for reducing reliance on incarceration, jail
and prison population will only grow larger. In this context, any analysis of how to
maintain family relationships when particular family members face incarceration
must focus on how to minimize the use of
incarceration.
Professor Beckerman encourages a
"more aggressive approach" toward
greater contact between caseworkers and
imprisoned mothers. She suggests reviewing policies on telephone contacts, informing mothers of parental rights and the
impact of permanency planning on foster
care decisions, and identifying prison
caseworkers who can serve as a liaison
between mothers and social service caseworkers. 13
PWlip Genty, focusing more on law than
program intervention, suggests improving

of state prison parenting programs, see Mary J.
Clement, "Parenting in Prison: ANational Survey of
Programs for Incarcerated Women." Journal of
Offender Rehabilitation, 19(112): 89-100, (1993).

mothers' access to court proceedings
involving their children, and firming up
social service agency responsibilities to
incarcerated mothers to "ensure that
incarcerated mothers who desire meaningful relationships with their cWldren need.
not fear the permanent termination of
their parental rights."14
The ABA's Children on Hold Project proposes "a comprehensive, system-wide
approach to meeting the needs of children
of arrested and/or incarcerated caretakers." Such a system, the ABA suggests,
"requires an organization's longterm commitment and should include the principles
of a strategic planning process."15
Other recommendations have also been
made, such as making an incarcerated
mother's child caretaking responsibilities
a factor in her prison classification.
Accordingly, women who are primary
caregivers can be placed in facilities as
close as possible to their children.
Critically important is the need, on a
state-by-state basis, to gather more information about the number of children
under the care of incarcerated mothers:
who cares for them in the community while
the mother is imprisoned, what financial
assistance do they receive or are they eligible for, and what can be done to integrate
their caregiving roles and responsibilities
into commUnity-based sanctions to replace
the escalating level of jail and prison terms
for women offenders.•

Russ Immarigeon, contributing writer
to the National Prison ProjectJournal,
currently directs a research project on
kinship foster carefor Statewide Youth
Advocacy, 17 Elk Street, Albany, New
York 12207, 518/436-8525.
Press Release, Edwin Gould Services for Children
(Incarcerated Mothers Program, 104 East 107th
Street, New York, NY 10029, (212)410-4200),June
3, 1994.
1

2 For a recent review, see Russ Immarigeon and
Meda Chesney-Lind, "Women's Prisons:
Overcrowded and Overused." San Francisco, CA:
National Council on Crime & Delinquency, (1992).

3 For a recent review, see Barbara Bloom and David
Steinhart, "Why Punish the Children: AReappraisal
of the Children of Incarcerated Mothers in America."
San Francisco, CA: National Council on Crime &
Delinquency, (1993). For results of a recent survey

16

FAll1994

4 Tracy L. Snell and Danielle C. Morton, "Women in
Prison: Survey of State Prison Inmates, 1991."
Washington, DC: U.S. Department ofJustice (Bureau
ofJustice Statistics), (March 1994).

5 Anna

T. Laszlo, Barbara E. Smith, and Sharon
Goretsky Elstein, "Children on Hold: What Happens
When Their Primary Caretaker is Arrested?"
Conference Papers for the Seventh National
Conference on Child~n and the Law. Washington,
DC: American Bar A$~ociation Center on Children
and the Law, p. 13,9:'(AprilI994).
6 Philp

M. Genty, "Protecting the Parental Rights of
Incarcerated Mothers Whose Children are in Foster
Care: Proposed Changes to New York's Termination
of Parental Rights Law." Fordham Urban Law
Journal, 17(1): 13, (1989).
7 Jane M. Spinak, "Permanency Planning Judicial
Handbook." Albany, NY: Task Force on Permanency
Planning for Foster Children, pp.5-5. (1989).
8 Adela

Beckerman, "Mothers in Prison: Meeting the
Prerequisite Conditions for Permanency Planning."
Social Work, 39(1): 10 (January, 1994).
9 The

Children's Center at New York State's Bedford
Hills Correctional Facility recently published "The
Foster Care Handbook for Incarcerated Parents: A
Manual of Your Legal Rights and Responsibilities."
($10.00/$2.00 for prisoners) which is available
from The Children's Center, PO Box 803, Bedford
Hills, New York 10507. For information on the
Inmate Foster Care Committee, write Precious Bedell
(#80G0280), P.O. Box 1000, Bedford Hills, NY
10507-2496.
10 For further information, contact Ann L. Jacobs,
Executive Director, The Women's Prison Association
& Home, Inc., 110 Second Avenue, New York, NY
10003, (212) 674-1163.

11 For further information, contact Sr. Mary Nearny,
Edwin Gould Services for Children, Imprisoned
Mothers Program, 104 East 107th Street, New York,
NY 10029, (212) 410-4200.

12 On this question for female offenders, see
Immarigeon and Chesney-Lind.

13

Beckerman, p.13.

14 Genty, pp.25-26. Also, see Philip M. Genty,
"Procedural Due Process Rights of Incarcerated
Parents in Termination of Parental Rights
Proceedings: AFifty State Analysis." Journal of Family
Law, 30(4): 757-846, (1991-92).
15 Lazlo, Smith, and Goretsky Elstein, pp.142-148.
Further details about the project can be obtained
from Barbara E. Smith, ABA Center on Children and
the Law, 1800 MSt., NW, Washington, D.C. 20036,
(202) 331-2649 or Anna T. Lazlo, Circle Solutions,
Inc. 8201 Greensboro Drive, McLean, VA 22102,
(703) 821-8955.

THE NATIONAL PRISON PROJECT JOURNAL

Agreement Reached in Statewide Pennsylvania Case
hen trial began last December in
Austin v. Lehman, the state-wide
prison case filed against the state
of Pennsylvania, corrections expert and
former prison commissioner Pat McManus
testified to the court that "overcrowding in
combination with idleness is a formula for
disaster." So it had proved in Pennsylvania,
where in 1990 the prison system was on
the verge of collapse. An increase in the
prison population of almost 400% over 20
years had caused massive overcrowding,
overburdened medical services, increased
violence and simply overwhelmed the
resources of the Department of
Corrections. Overcrowding led to
increased tension in the prisons and, as a
result of either riots or threats of riots, the
DOC had put one after another of its institutions on lockdown. The worst of the
riots took place in October 1989 at S.C.I.Camp Hill where 2,600 inmates were
housed in a prison built for 1,800.
As a direct response to these events, the
National Prison Project of the American
Civil Liberties Union together with the
ACLU of Pennsylvania, the law office of
Kairys & Rudovsky, the Pennsylvania
Institutional Law Project and the
Disabilities Law Project filed suit against
the state in November 1990. The complaint
alleged that conditions of confinement in
the state's prisons were unconstitutional
(two prisons were excluded from the suit
as they were already the subject of other
court orders).
Over the next 20 months, plaintiffs'
lawyers engaged in extensive discovery,
obtaining hundreds of thousands of pages
of Department of Corrections' records, as
well as taking, nationally recognized
experts through the institutions. During
discovery, the plaintiffs found problems
concerning tuberculosis control in the
prisons. As a result, there had already
been a significant outbreak of active tuberculosis at Graterford, the largest prison.
The Pennsylvania Department of Health
had warned the DOC that more outbreaks
would occur unless the system implemented reliable control procedures. The plaintiffs therefore requested a preliminary
injunction from U.S. District Court Judge
Jan DuBois. On September 27, 1992, the
judge granted the injunction ordering the
DOC to implement the new tuberculosis
policy it had promulgated days before the
hearing.

W

THE NATIONAL PRISON PROJECT JOURNAL

Because the allegations raised in Austin
were so extensive, Judge DuBois divided
testimony into four distinct phases - corrections, environment, medical and mental
healthcare. In the first phase of the trial
the court heard testimony concerning .~.
overcrowding, educational and vocatiqnil'
opportunities, access to law libraries l;tnd
the courts, as well as inmate safety.
Prisoners took the stand and told of guard
brutality and excessive use of force which
was inadequately investigated and rarely
punished.
Five weeks into the trial, the parties,
with the encouragement of the court,
entered into settlement negotiations. On
August 9, lawyers representing the prisoners announced that they have reached a
settlement with the State"and the agreement will be presented to Judge DuBois
for approval on November 18.
The agreement is a wide-ranging one
covering corrections, environmental and
fire safety, medical and mental health care
issues. Some of the key provisions bind the
state to:
• a strict policy for investigation of prisoner complaints of excessive force by
guards;
·increased law library access and legal
assistance;
• job and educational opportunities for
all prisoners;

• a formula for establishing a minimum
number of doctors, nurses and dentists at
each facility which will require an additional150 health care positions;
• number of new health care policies
similar in scope and level of detail to the
tuberculosis policy implemented under the
preliminary injunction;
• a Chief of Psychiatric Services to oversee all aspects'pf mental health policies
and practice system wide;
• a minimum of 800 special needs unit
beds and 212 mental health unit beds;
• numerous changes to the environmental (food service, sanitation, ventilation,
etc.) and fire safety conditions, all to be
subject to independent inspection.
While the 87-page settlement agreement
is not a Consent Decree and cannot be
enforced directly in court, it does allow
the lawyers for the plaintiffs to re-institute
the lawsuit any time within the next three
years if the defendants do not abide by the
terms of the agreement. NPP attorney
Elizabeth Alexander who was responsible
for the medical aspects of the case was '
pleased by the settlement. "Not only does it
make continued expensive litigation
unnecessary, but more importantly it will
bring immediate improvements to the conditions under which the men and women
in Pennsylvania's prisons must live." •

FALL 1994

17

In Memory: Joann Walker and Jim Magner

astjuly, joann Walker, former prisoner andpeer educator, andjim

L

A1agner,formerpr~onerand

founder ofPrisoners With AIDSRights
Advocacy Group (PWA-RAG), died.
Activists Fred Beasley andjudy
Greenspan reflect on their lives:
Those of us who live with HIV/AIDS in
America's prisons have lost one of our
finest generals to the disease she fought so
hard to protect others from.

When I received
word that Joann
Walker had died, my
first reaction was to
cry, and I cried hard.
Later I read all the letters she had written
me and in each one I
found a message that
soothed the pain of knowing I would never
receive another one of her letters.
Joann became many things to me in the
short time we shared through our letters, I
found her to be kind, gentle and understanding, but she was also hard, forceful
and unrelenting in her battle for the rights
of prisoners who live with HIV/AIDS.
She really touched the hearts of the people who knew and loved her and I am glad
to say I was one of those lucky people.
Her letters gave me strength and
18

FAll1994

courage when I was ready to give up, and
gave me insight on what I could be and
what I should expect from others.
She was my light when my world was
dark and I will always love her for providing me with that beam of light that guided
me back to my soul, spirit and inner self
and for proving to me I have the right to
be loved.
I remember Joann telling me time and
again, "I refuse to let the system kill me."
And she didn't.-Frederick Carl Beasley
Jimmy Magner was one of the first
prisoners that I "met" after becoming the
National Prison Project's AIDS Information
Coordinator in 1988.
Jimmy "educated" me about the federal
prison system's treatment of prisoners with
HIV/AIDS. Every time we talked he was en
route somewhere else. It's "diesel therapy," reserved for the Bureau of Prisons'

[BOP] troublemakers. Jimmy told me horror stories about the way prisoners with
HIV/AIDS were treated that would have me
in tears. Jimmy sent me a picture of himself holding a picket sign at an antinuclear demonstration. He also was quite
open in his letters about being gay. In
prison, the combination of being gay and
HIV + is a double stigma, but those two
facts and his political activism made me
feel close to him.
He started the PWA-RAG in 1988. When

Jimmy first approached me about helping
circulate a national newsletter for prisoners with HIV/AIDS, I became very excited.
I knew from the~olume of letters I was
receiving that hllMreds of prisoners
around the country would benefit from
such a publication. But I was really afraid
he couldn't pull it off. I was wrong
because Jimmy could do just about anything he set his mind on doing.
Jimmy's medical situation taught me a
lot about the need for compassionate
release for prisoners with AIDS and other
terminal illnesses. In 1990, Jimmy started
getting very sick. He called me weekly
dUring this period; I studied the BOP's
compassionate release policy. First I tried
contacting the medical staff at the prison
he was in and then I contacted the
Medical Director of the BOp, Dr. Kenneth
Moritsugu. They were all singing the same
"no" song. I learned that if you are a
political organizer like Jimmy, you get
turned down every time. Here was a prisoner who was very ill and clearly could
have died at any time but the Medical
Director kept stating he was ineligible.
The lack of compassion of the federal
prison system made me very angry.
Jimmy didn't receive compassionate
release, but our letters, public pressure
and jimmy's organizing influenced a transfer to the prison medical center in
Rochester, Minnesota. Fortunately, even
though the BOP kept threatening to move
him, Jimmy served the last part of his sentence at the prison hospital.
Jimmy was an organizer, a fighter and a
survivor. He fought every attempt the system made to kill him and won. Since his
release, PWA-RAG has continued to grow.
Of course, Sheila Magner, his mother, has
been Jimmy's and PWA-RAG's mainstay of
support.
I am honored to have had the opportunity to fight alongside him. His fighting
spirit kept me going at the NPPand the
PWA-RAG has become an important voice
for the advocacy movement for prisoners
with HIV/AIDS.
Jimmy, you will be missed by prisoners,
former prisoners and activists whose lives
you touched. We will continue the struggle
you began until justice is done. -judy
Greenspan.
THE NATIONAL PRISON PROJECT JOURNAL

ublications
-~--

Bibliography of Material on
Women in Prison
.

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

lists information on this subj~ct
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.
_~_

The National Prison
Project JOURNAL, $30/yr.

$21yr. to prisoners.
-~--

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

_~_

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

Fill out and send with check payable to:

Name

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

Address,

THE NATIONAL PRISON PROJECT JOURNAL

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 HlV
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

QTY. COST

A Primer for Jail Litigators
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.

City, State, ZIP

on AIDS in prison that are
available from the National Prison
Project and other sources,
inc.Juding corrections policies on
AIDS, educational materials,
~edical and legal articles, and
recent AIDS studies. $5 prepaid
from NPP.

_-,--_ AIDS in Prisons: The Facts
for Inmates and Officers is
a simply written educational tool
for prisoners, corrections staff,
and AIDS service providers. The
booklet answers in an easy-toread format commonly asked
questions concerning the
meaning of AIDS, the medical
treatment available, legal rights,
and responsibilities. Also
available in Spanish. Sample
copies free. Bulk orders: 100
copies/$ 25. 500 copies/$l00.
1,000 copies/$150 prepaid.
(order
from
ACLU)

QTY. COST

ACLUHandbook,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.

_
.

_
.

_

FALL 1994 19

he following are major developments in the National Prison
Project's litigation program since
June 30, 1994. Further details of any of the
listed cases may be obtained by writing
the Project.

T

Austin v. Lehman-On August 9,
lawyers representing the plaintiffs
announced that they have reached a settlement with the state in the Pennsylvania
prison case. The agreement will be presented to U.S. District Judge Jan DuBois
for approval on November 18. For details
ofthe settlement agreement see p.17.
Lambert v. Morial-The NPP has filed
another complaint against the city of New
Orleans in addition to its two existing
cases, Hamilton v. Morial (conditions in
the Parish Prison) and Doe v. Foti (conditions for juveniles). The named plaintiffs
in the new case, Lambert v. Morial, are
women detained at the South White Street
jail (SWS) which houses more than 200
women, including sentenced prisoners,
pretrial detainees and immigration holds.
The complaint alleges that SWS is overcrowded with prisoners sleeping in mattresses on the floor; environmental conditions are dangerous with defective plumbing and ventilation and grossly inadequate
fire safety precautions; medical and mental
health care are deficient; legal access to
attorneys and courts is obstructed; guards

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

routinely use unjustified force against prisoners; and lack of rational classification
and poor staffing (exacerbated by
overcrowding) lead to assaults and
victimization.

Hadix v.johnson-The NPP appears in
the medical and mental health care portion of this conditions of confinement case
at the State Prison of Southern Michigan in
Jackson. On July 15, 1994, the district
court granted the plaintiffs further relief
on a variety of medical issues, including
tuberculosis control, medication monitoring, access to medical care, medical
screening of new prisoners, and dental
care. These orders resulted from an evidentiary hearing on June 9, 1994.
Goldsmith v. Dean-Since this
statewide class action suit on behalf of
prisoners in Vermont prisons was filed in
December 1993, the state has been unresponsive to the plaintiffs' discovery
requests. In a pre-trial order in August,
the district court judge awarded sanctions
against the defendants and discovery is
now continuing.

covering the issues of overcrowding, environmental and fire safety conditions, medical and mental health care and classification and treatment policies. The agreement
will be submitted tp the district court
judge for approva.¥0n October 19.

Washington iJ:Tinney/johnson v.
Galley-The NPP has been representing
prisoners in two Maryland state prisons
(Maryland Correctional Institution at
Hagerstown and Maryland House of
Corrections at Jessup) since 1985, and
continues to monitor the court-approved
agreement covering conditions at these
two facilities. During a tour of MHC-Jessup
in March it became clear that the defendants were about to reinstitute doublebunking in violation of the agreement. The
district court held a hearing in September
on the contempt motion brought by the
NPP and the counter-motion from the
defendants to mOdify the agreement to
permit double-bunking. The court's decision is awaited. •

Langford v. Racicot-Since this case
was filed in December 1993, negotiations
have continued with the state of Montana
over the conditions of confinement at the
Montana State Prison. Asettlement has
now been reached between the parties

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FALL 1994

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