A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. VOL. 9, NO.1, WINTER 1993/94 • ISSN 0748-2655 , Black Prisoners Organizefor Self-Empowerment
American males are under the control of All three of these attitudes-accommo the criminal justice system. 1 Black commu dation, rebellion, and self-realization (or nities were particularly shaken. They con self-determination and empowerment) n 1990 the publication of a research tinue to search for meaningful ways to re have been adopted by African American report by The Sentencing Project on spond to what they view as yet another sym prisoners responding to their overrepre I the incarceration of Black males pro bol of oppression and social control. sentation in prison, the extraordinarily voked an unusual degree of public atten African Americans have always protested harsh conditions of their confinement, tion. Communities throughout the nation re their oppression in some form or other. and racial segregation and discrimination sponded with shock and dismay to the news They have publicly struggled against en which have long characterized prisons that nearly one out of four young African- slavement and civil rights violations. How across the country. Here, we will offer ever, the movement against the three examples of how these attitudes have maltreatment of Black prison been reflected in Black prisoner protests. ers and the use of imprison The accommodationist attitude was clearly ment as a method of social represented during the period following control and oppression has the Civil War until 1954, the year of Brown received less publicity. Much v. Board ofEducation. Then, "rebellion" of the leadership in this area characterized the period following that has come from Black prison momentous decision until the mid-1970s. ers themselves. And finally, during the Reagan-Bush Historically, the way in administrations, the current attitudes of which protests against prison Black self-determination and empower conditions have been carried ment were developed. out has reflected the attitudes and the social, economic, and Accommodation political climate of the Black The state of Black male impris community of the time. Protest onment reported by The Sen strategies have been shaped by tencing Project is not new. both ideology and pragma African Americans tism, giving credence to the have been overrep observation made by the Black resented in 0.. o intellectual, W.E.B. Du Bois: prisons -fii -" ...the attitude ofthe since ~ imprisoned group may ..<::> 0.. take three main forms, ~ rn -afeeling ofrevolt -§ and revenge; an at- ..<:: c... c: tempt to adjust all .g thought and action to ..9 c:- the will ofthe greater o E group; or, finally, a de o termined effort at self u'" > realization and self oc: ..<:: development despite 1:: 2 Anoted prisoner of a more recent era, cal sensitivities that were new among The National Prison Project is a tax-exempt foundation Eldridge Cleaver, presents a graphic imprisoned populations. Armed with these funded project of the AClU Foundotion which seeks to description of th~ period: perspectives, prisoners began legal chal strengthen ond protect the rights of adult and Juvenile offenders; to improve overall conditions in correctional Prior to 1954, we lived in an lenges, strikes, and rebellions; they wrote facilities by using existing administrative, legislative and atmosphere ofnovocain. Negroes books and articles to focus the free world's judicial channels; and to develop alternatives to incarceration. found it necessary, in order to attention on the problem of prisons and The reprinting of JOURNAL material is encouraged with maintain whatever sanity they Black oppression. the stipulation that the National Prison Prolect JOURNAL could, to remain somewhat aloof In the early 1970s, Black prisoners be credited with the reprint, and that a copy of the reprint be sent to the editor. and detachedfrom 'the problem'. advanced the proposition that they should The JOURNAL is scheduled for publication quarterly by We accepted indignities and the be thought of as "political prisoners,"II the National Prison Project. Materials and suggestions mechanics ofthe apparatus of arguing that since their condition derived are welcome. oppreSSion without reacting, by from the political and economic inequality sitting-in or holding mass demon of Blacks in America, they were victims of 8 strations. that oppressive order. Chrisman argued The NPP JOURNAL is available on 16mm The adoption of an accommodationist that even when the Black prisoner's crime microfilm, 35mm microfilm and 105mm stance was prompted by several other fac is not political, the state's action against microfiche from University Microfilms tors. First, the reigning prison philosophy him is political. That is, Black offenders International, 300 North Zeeb Rd., Ann stressed the importance of keeping prison are not tried and judged by the Black com Arbor, MI 48106-1346. ers docile. Individual expression and resis- munity itself, but by whites who "are 2 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL compliance. Toussaint v. Rowland, 711 F. Status Report: State Prisons and Supp. 536 (N.D. Cal. 1989). The monitorship was dissolved in 1991, but the plaintiffs con the Courts -January 1, 1994 tinue to evaluate compliance. On June 29, 1992, acting on the defendants' motion under Rule 68, the district court entered an order on conditions and double-ceiling with respect to Soledad and DVI. STATUS REPORT BY JURISDICTION sent decree, and Black was dismissed in F~b The California Men's Colony at San Luis ruary 1988. Obispo is under a court order establishing 1. Alabama:* The entire state prison sys Astatewide class action, filed on behalf of population limits. Dohner v. McCarthy, 635 tem was under court order dealing with total Arizona prisoners on January 12, 1990,iJhal F. Supp. 408 (C.D. Cal. 1985). However, conditions and overcrowding. Pugh v. Locke, lenges legal access, health care, and discrim compliance m6nitoring has ceased. 406 F. Supp. 318 (M.D. Ala. 1976), affd in ination against handicapped prisoners. Casey The Californilt Institution for Men at Chino substance sub nom. Newman v. Alabama, v. Lewis, CIV-90-0054 PHXCAM (D. Ariz.). is operating under a settlement agreement 559 F.2d 283 (5th Cir. 1977), rev'd in part Partial summary judgment for plaintiffs was providing for improved sanitation, classifica and remanded sub nom. Alabama v. Pugh, entered in August 1991 enjoining discrimina tion, legal access, and other conditions. Com 438 U.S. 781 (1978). Areceiver was appoint tion against HIV-positive prisoners in job pliance monitoring has ceased. Boyden v. ed. 466 F. Supp. 628 (M.D. Ala. 1979). On assignments. The state has appealed. Trial on Rowland, CV-86-1989-HLH. January 13, 1983, the district court entered the remaining issues occurred in 1991-92. The California Medical Facility at Vacaville is an order establishing a four-person commit On November 13, 1992, the district court under a 1990 consent decree concerning the tee to monitor compliance with previous entered a favorable decision on the legal delivery of health-care and psychiatric ser orders. In December 1984, the district court access issues; on March 19, 1993, the court vices, including housing and programming for relinquished active supervision after the par declared mental-health care unconstitutional; HIV infected inmates. Compliance is being ties agreed that substantial compliance had and on April 3, 1993, the court found that the monitored. Gates v. Deukmejian, No. S-87 been achieved. The court dismissed the case defendants had denied mobility-impaired 1636-LKK-JFM (E.D. Cal.). In 1992, plaintiffs in December 1988. prisoners access to bathroom facilities and filed a contempt motion concerning the 2. Alaska:* The entire state prison system other areas, in violation of the Constitution. staffing requirements of the order. Amagis is under a consent decree and a court order On September 23, 1993 a Ninth Circuit panel trate judge filed a report on this issue and the entered in 1990 dealing with overcrowding vacated the district court's injunction on con district judge ordered limited further relief. and total conditions of confinement. Cleary v. tact attorney-client visitation and the denial of (Order of Apr. 3, 1992). In 1993, a further Smith, No. 3AN-81-5274 (Super. Ct., 3rdJud. food-service jobs to HIV-infected prisoners. contempt motion was filed; a ruling is awaited. Dist.) (complaint filed Mar. 3, 1986). The 4 F.3d 1516 (9th Cir. 1993). Plaintiffs await a Two lawsuits concern the delivery of med parties agreed to population caps at each ruling on their petition for a rehearing en ical and mental-health services to prisoners facility and a mechanism to reduce the popu banc from the Ninth Circuit. at the California Women's Institution at lation when a cap is exceeded. The parties 4. Arkansas:* The entire state prison sys Frontera. Whisman v. McCarthy, No. OCV contemplated that the mechanism would tem was under court order dealing with total 33860 (Super. Ct., San Bernadino County) remain in effect until the state legislature conditions. Finney v. Arkansas Board of and Doe v. CDC, A-Civ.-89-598-GLT (C.D. approved an emergency-overcrowding reduc Correction, 505 F.2d 194 (8th Cir. 1974). A Cal.). In Whisman, a settlement was reached tion statute. By October 1992, the legislature special master was appointed. Finney v. in May 1992, in which the parties agreed to a had failed to pass such legislation, the DOC Mabry, 458 F. Supp. 720 (E.D. Ark. 1978). state DHS inspection and to correct problems had failed to reduce the population at the six Compliance was assessed in 1982. 534 F. with inadequate treatment and care identified largest prisons, and the state filed for relief Supp. 1026 (E.D. Ark. 1982); 546 F. Supp. by this inspection. Doe deals with the treat from the order. In an order entered on 626 (B.D. Ark. 1982). After a finding of full ment of HIV-positive prisoners at CWI. October 25, 1993, the court lifted the popula compliance, the federal court relinqUished Discovery continues. Substantial changes tion cap at the Spring Creek maximum-secu jurisdiction in August 1982. 546 F. Supp. 628 have occurred in the DOC policy that have rity facility. A"ffiotion for reconsideration was (E.D. Ark. 1982). changed the posture of the case. filed on November 4, 1993 and granted by the 5. California:* The administrative-segre In 1990, a class-action suit against the court. Abriefing schedule has been entered. gation units at San Quentin, Folsom, Soledad, Department of Corrections was filed challeng The court ordered trial on compliance issues and Deuel (DVI) are under court order due ing conditions at the state's new "supermax" including program parity for the state's to overcrowding and conditions. Aprelimi facility at Pelican Bay. Madrid v. Gomez, C women prisoners. nary injunction was entered. Toussaint v. 90-3094 (N.D. CaL). The complaint alleged 3. Arizona:* The state penitentiary is Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983), the use of excessive force and brutality by operating under a series of court orders and affd in part sub nom. Toussaint v. Yockey, guards, deliberately cruel and dehumanizing consent decrees dealing with overcrowding, 722 F.2d 1490 (9th Cir. 1984). The district conditions of confinement, deliberate indif classification, and other conditions. Orders, court thereafter entered a permanent order ference to prisoners' serious medical needs, August 1977-1979, Harris v. Cardwell, CIV enjoining double-celling and other conditions and unnecessary risk of inmate-upon-inmate 75-185 PHXCAM (D. Ariz.). Aspecial admin at the San Quentin and Folsom units. Tous violence. During 1992, a class was certified istrative-segregation unit at the Arizona State saint v. McCarthy, 597 F. Supp. 1388 (N.D. and discovery was ongoing. The case went to Prison in Florence was operating under a Cal. 1984). The court of appeals reversed on trial on September 17,1993, and ended December 12, 1985 consent decree. Amoni the issues of placement and retention in ad December 15. Adecision is awaited. tor was appointed. Black v. Ricketts, C.A. No. ministrative segregation. 801 F.2d 1080 (9th Acase was filed against the state challeng 84-111 PHXCAM (D. Ariz.). The unit was later Cir. 1986), cert. denied, 481 U.S. 1069 ing the adequacy of mental-health care in all found to be in full compliance with the con- (1987). Amonitor was appointed to oversee California prisons (except Vacaville and San THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 3 Quentin). Coleman v. Wilson, CV-90-520 Somers. Bartkus v. Manson, No. H-80-506 plaintiffs. The decision was substantially LKK-JFM. The trial concluded in June 1993; a (D. Conn.). During 1993, the parties were affirmed on appeal. LaMarca v. Turner, 995 decision is awaited. engaged in settlement discussions concerning F.2d 1526 (lith Cir. 1993). 6. Colorado:* The state maximum-security population limits and out-of-cell time. In 10. Georgia: The state penitentiary at penitentiary at Canon City is under court October, the plaintiffs were granted a tempo Reidsville is under court order on total con order on total conditions and overcrowding. rary restraining order enjoining further dou- ditions and overcrowding. Aspecial master Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. ble-ceiling at the prison. .// was appointed in 1979, and dismissed in 1979), affd in part and remanded, 639 8. DeIaware:* All major Delaware prisons 1983. Guthrie v. Evans, C.A. No. 3068 (S.D. F.2d 559 (lOth Cir. 1980), cert. denied, 450 are under a consent decree filed in state court Ga.). The case was closed in 1983, but the U.S. 1041 (l981) , on remand, 520 F. Supp. on issues of overcrowding, physical plant, med~ injunction remains in effect. The order 1059 (D. Colo. 1981). During the compliance ical care, and access to the courts. DickerSd1! requires single-ceIling, improvements in the stage, the parties reached a series of agree v. Castle, C.A. No. 10256 (Del. Ch. Nov. 22, medical- and mental-health-care delivery sys ments later approved by the court concerning 1988). On December 7,1992, a supplementary tem, and improve'\flents in environmental general conditions, as well as specific areas agreement on overcrowding and tuberculosis health, among otqJer things. Compliance is such as legal access, double-bunking and control was approved by the court. Compliance being monitore.d. treatment of HlV-infected prisoners. On this monitoring commenced in 1993. Anumber of other state facilities have last issue, see Diaz v. Romer, 961 F.2d 1508 9. Florida: The entire state prison system come under challenge. In 1993, a class (lOth Cir. 1992). was under court order dealing with over action lawsuit begun in 1984 on behalf of the Alawsuit filed on February 27, 1990, chal crowding. Costello v. Wainwright, 397 F. state's women prisoners alleging inadequate lenges conditions and delivery of health-care Supp. 20 (M.D. Fla. 1975), affd, 525 F.2d living conditions and physical and psychologi services at three other major state facilities 1239 (5th Cir. 1976) and 553 F.2d 506 (5th cal mistreatment was updated to include alle (Buena Vista, Fremont, and the women's Cir. 1977). In 1980, the court entered a con gations of sexual abuse. Cason v. Seckinger, prison). Nolasco v. Romer, No. 90-C-340 (D. sent decree providing measures for popula 84-313-1-MAC. These allegations are now the Colo.). In 1992, the parties reached a com tion control. 489 F. Supp. 1100 (M.D. Fla. subject of a federal investigation by the U.S. prehensive settlement on all of the issues. The 1980). Aspecial master was appointed. Attorney General. district court approved this agreement in June Additional consent decrees were entered cov 11. Hawaii:* The men's prison (O.C.C.C.) 1992.801 F. Supp. 405 (D. Colo. 1992). ering environmental health and safety. In in Honolulu and the women's prison on Oahu During 1993, the state filed a series of com 1992, the parties agreed that the standards were under court order as a result of a 1985 pliance reports, in both Ramos and Nolasco, and terms of the population order would be consent decree entered in a totality of condi to which the plaintiffs will respond. embodied in a state statute and that the tions suit. Spear v. Ariyoshi (now Spear v. Lawsuits concerning inadequate classifica Correctional Medical Authority (CMA), an Waihee) , Civ. No. 84-1l04 (D. Haw.). tion resulting in increased assaults and vio independent state-funded agency, would mon Monitors were appointed and continued to lence at the Lymon Correctional Facility were itor and enforce compliance. assess compliance with the court decree. consolidated in August 1993. Wilson v. Aconsent decree was entered on December Following negotiations with a view toward Romer, No. 92-C-1470 and Hall v. Romer, 17, 1987 in Costello concerning health-care modifying the decree to reflect current condi No. 92-M-1932. Discovery is ongoing; an services. Later, in 1991, the parties negotiat tions more accurately, a new agreement was amended complaint will be filed. ed to end court supervision of the health-care finalized in July 1993. The new agreement 7. Connecticut:* The Hartford Correc order by turning over monitoring and en addresses changed conditions, simplifies the tional Center is under court order dealing forcement to the CMA. process of court supervision, and provides a with overcrowding and some conditions. In 1993, the state statute came into effect mechanism for determining when such moni Lareau v. Manson, 507 F. Supp. 1177 (D. authorizing CMA to monitor and enforce pop toring is no longer necessary. The agreement Conn. 1980), affd in part, modified, and ulation, habitability, and health-care provi also provides for permanent population caps remanded, 651 F.2d 96 (2d Cir. 1981). sions, and providing a unique model whereby that will be enforced by the state courts. An Other facilities under consent decree are modification of these provisions can be made order putting the new agreement into effect Bridgeport Correctional Center, Mawhinney only through a medical waiver. However, was signed on November 19, 1993. v. Manson, No. B78-251 (D. Conn. 1982) prisoners have an automatic right to sue the 12. Idaho:* The men's Idaho Correctional and New Haven G.orrectional Center, Andrews Department of Corrections if an adverse rul State Institution is under a court order con v. Manson, No. N81-20 (D. Conn. 1982). ing is made. cerning conditions. Balla v. Idaho State Although the orders entered in both of these On the basis of the settlement and the Board ofCorrections, 595 F. Supp. 1558 (D. cases remain in effect, they are not being statute, the district court issued a final judg Idaho 1984). In 1987, incident to Balla, the monitored actively. ment "closing" the statewide Florida crowd district court held that the prison was uncon Niantic Women's Prison is under a court ing and medical-care litigation (the Costello stitutionally overcrowded and ordered popu order on a full range of women's prison case noted above), thereby vacating the previ lation reductions. 656 F. Supp. 1108 (D. issues. West v. Manson, No. H-83-366 (D. ously imposed injunction and relieving class Idaho 1987). The court of appeals upheld the Conn.) (entered Oct. 3, 1984). Compliance is counsel, the special master, and the monitor district court decision rejecting defendants' being monitored in this case. of any further responsibilities. Celestineo v. attempt to obtain more time to reduce the The treatment of HIV-positive Connecticut Singletary, 147 F.R.D. 258 (M.D. Fla. 1993). population, among other things. 869 F.2d 461 prisoners was the subject of a 1988 lawsuit. Inadequate security provisions leading to (9th Cir. 1989). Doe v. Meachum, No. 88-562 (D. Conn.). In predictable inmate violence and sexual The women's prison is operating under an 1991, a negotiated agreement was reached assaults at Glades Correctional Institution interim agreement signed in July 1991 con and a consent decree was entered. were challenged in a lawsuit seeking injunc cerning conditions, including overcrowding Compliance is being monitored. tion and monetary relief. The district court and medical care, which will remain in effect Litigation challenging violence and over entered an injunction benefiting the class, until the DOC opens a new facility. Wilke v. crowding is pending at the state prison at and awarded damages to some of the named Vernon (formerly Witke v. Crowl), Civ. No. 4 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL 82-3078 (D. Idaho). Compliance is being entered on July 5, 1991. In accordance with affd in part, appeal dismissed in part, 967 monitored. Once the new facility is opera the terms of the order, and after two years of F.2d 418 (10th Cir. 1992). (Subsequently the tional (currently scheduled for February compliance, the case was closed. caption on the case was changed to Porter v. 1994), the previous agreements reached in On May 4, 1992, prisoners at the Maximum Finney.) In 1993, the mental-health monitor this case concerning programming, delivery Security Complex at Westville (the state's so ing team found that compliance had been of medical care, and legal access will contin called "supermax") brought an action in achieved with that plan. Also during 1993, the ue to apply. state court challenging placement and condt: court approved plans with respect to protec 13. Illinois:* The state penitentiary at tions. Taifa v. Bayh, No. 49-DO-7-9205-CP>; tive-custody and other segregation issues. Menard is under court order on total condi 489 (Super. Ct., Marion County). The state> Compliance monitoring continues on all tions and overcrowding. Aspecial master, had the case removed to federal court. Taifa other issues. appointed in 1980, was discharged after four v. Bayh, No. S-92-429M (N.D. Ind.). Th(ded 17. Kentucky:* The Kentucky State years. There has been substantial compliance eral court remanded the state law claims: to Penitentiary (KSP) at Eddyville and the with the decree; however, the injunction the state court. In 1993, the parties signed off Kentucky StatelJ{eformatory (KSR) at remains in force. Lightfoot v. Walker, 486 F. on an Agreed Entry, which resolves the claims LaGrange wer~/under court order by virtue of Supp. 504 (S.D. Ill. 1980). in both state and federal courts. The docu a consent de,ci:ee on overcrowding and some DWight Correctional Center is under a May ment restricts the criteria for placement, pro conditions, including guard brutality. 1990 consent decree that requires programs vides for improved conditions and increased Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. for women prisoners and the construction of out-of-cell time, and provides for a method to 1981). The court of appeals later vacated a 200-bed minimum-security facility for earn one's way out of the facility. The Agreed some requirements of the order related to the women. Moorhead v. Lane, No. 86-c-2020 Entry has been submitted to the federal judge brutality issue. 740 F.2d 432 (6th Cir. 1984). (C.D. Ill.). for approval. The district court found the defendants in The Stateville facility is under a December 15. Iowa: The Iowa State Penitentiary at substantial compliance with the consent 1990 consent decree, entered by the district Fort Madison is under court order on over decree, with the exception of new construc court, which provides for improved protec crowding and a variety of conditions; howev tion requirements. As a result, the case was tion from assault. Calvin R. v. Peters, No. er, this decree is not being monitored actively placed on the inactive docket of the court, a 82C1955 (N.D. 111.). Acourt monitor has for compliance. Watson v. Ray, 90 F.R.D. decision that was affirmed by the court of been appointed and a classification evalua 143 (S.D. Iowa 1981). appeals. However, that court held that the tion by NCCD has been completed. Com Fort Madison is also under a series of con district court could reinstate the case if the pliance monitoring continues. The district sent decrees involving the delivery of med plaintiffs could prove "a major violation" of court ordered that protective-custody prison ical-care services, McBride v. Ray, No. 73 the decree. 931 F.2d 421 (6th Cir. 1991). On ers at the Stateville facility be provided with 242-2 (S.D. Iowa), segregation, Gavin v. February 24, 1992, the district court, with improved programming, conditions, and legal Ray, No. 78-62-2 (S.D. Iowa), and protec respect to KSP, relinqUished jurisdiction and assistance. Williams v. Lane, 646 F. Supp. tive-custody practices, Parrott v. Ray. These dismissed the case. With respect to KSR, the 1379 (N.D. 111. 1986). The court of appeals cases are being monitored actively. court retained jurisdiction until all construc affirmed this decision. 851 F.2d 867 (7th Cir. Women prisoners confined to the Iowa Cor tion is completed and as long as major viola 1988), cert. denied, 488 U.S. 1047 (1989). rectional Institution for Women (ICIW) at tions of the decree do not occur. 14. Indiana:* The state prison at Pendleton Mitchellville filed a class action concerning dis The women's prison, KCIW at Pee Wee was found unconstitutional on total conditions parate treatment as against male prisoners in Valley, was under court order on a variety of and overcrowding. French v. Owens, 538 F. terms of programs and work opportunities. conditions, including crowding, physical Supp. 910 (S.D. Ind. 1982), affdin perti Pargo v. Elliot, No. 4-92-80781 (S.D. Iowa). plant, sanitation, access to the courts, pro nentpart, 777 F.2d 1250 (7th Cir. 1985), Discovery is ongoing and a trial before the mag gramming, classification, and work. cert. denied, 479 u.s. 817 (1986). The state istrate judge is scheduled for March 22, 1994. Canterino v. Wilson, 546 F. Supp. 174 (W.D. penitentiary at Michigan City is under a court 16. Kansas: Aconsent decree on total Ky. 1982), and 564 F. Supp. 711 (W.D. Ky. order on overcrowding and other conditions. conditions was entered in 1980 at the state 1983). The district court's order concerning Hendrix v. Faulkner, 525 F. Supp. 435 (N.D. penitentiary at Lansing. Arney v. Bennett, No. work and study release was vacated by the Ind. 1981), affdin part, vacated and re 77-3045 (D. Kan.). The case was reopened court of appeals. 869 F.2d 948 (6th Cir. manded in Mrt sub nom. Wellman v. Faulk and expanded in 1988, and a more compre 1989). The district court relinquished juris ner, 715 F.2d 269 (7th Cir. 1983), cert. de hensive order was entered in April 1989. That diction on July 13, 1992. nied,468U.S.1217 (1984). order requires the state's oldest facilities to 18. Louisiana: The Louisiana State Prison The state prison at Westville is under a meet and maintain standards of the American (Angola) is under court order dealing with consent decree on overcrowding, conditions, Correctional Association (ACA) and the overcrowding and a variety of conditions. and delivery of mental-health services. National Commission on Correctional Health Williams v. Edwards, 547 F.2d 1206 (5th Anderson v. Orr, C.A. No. S83-0481 (N.D. Care (NCCHC); the capacities of all other Cir. 1977). In 1981, the court of appeals Ind.) (case filed in 1983). Acomprehensive existing or new facilities must meet ACA stan consolidated all state-prison-overcrowding settlement was reached on March 31, 1989. dards. Apanel of experts is monitoring men and local-jail-overcrowding cases in During 1992 and 1993, the parties had exten tal-health treatment. In 1991, the defendants Louisiana before one district court judge. sive discussions about compliance. moved for modification of the consent decree This decision included Williams. See In June 1990, a case was filed challenging to permit double-ceIling and to increase Hamilton v. Morial, 644 F.2d 351 (5th Cir. conditions and delivery of health-care ser operating capacity due to construction delays. 1981). On December 7, 1983, the district vices to prisoners confined at Indiana's The court denied modification in two prisons judge who was appointed under Hamilton reception and classification facility. Lecclier that were the focus of this case and granted it approved a consent decree dealing with v. Bayh, IP90-1460-C (S.D. Ind.). After con in other institutions, but only where ACA stan crowding and population problems at Angola. ducting discovery, the parties reached a com dards and other limitations are met. Arney v. In 1989, the judge declared a state of emer prehensive settlement. Aconsent order was Finney, 766 F. Supp. 934 (D. Kan. 1991), gency, appointed a court expert, and request- THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 5 ed th.attheU.S.DePartment ofJustice investi lenged, including housing prisoners in day 1989), affd in part and rev'd in part, 934 gll.te'iItlJ~~l,thejlldge appointed a lawyer room areas. Nolan v. Fair, No. 84-1360 F.2d 703 (6th Cir. 1991), Subsequently, a f?~.th~cl~s?fstate··prisoners; .the··lawyer has (Super. Ct., Norfolk County-). special administrator was appointed, and a b~en~~~~ly"involvedin monitoring compli Acase filed in state court challenged un compliance plan was ordered submitted. lffi;f~i~~?utstanding orders in the case. The lawful conditions, use of force, and classifica Four men's prisons (Marquette, Michigan 81$eis.nowentitled Williams v. McKeithen. tion practices in DOC segregation units Reformatory, RiverSide, and a portion of See939F.2d 1100,1102 (5th Cir. 1991). statewide. After months of trial before one Jackson) are under a consent decree on 19. Maine:* The State Prison at Thomaston justice, the Supreme Judicial Court ruled in overcrowding and other conditions. This case was challenged on overcrowding and a variety the prisoners' favor. The state submitted draft was brought by the U.S. Department of Justice of conditions in 1978. The trial court granted regulations to which the plaintiffs commented under the Civil Rights of Institutionalized relief on the issue of restraint cells, and oth and objected. Revised regulations were ap~. Persons Act (CRlPA). United States v. Mich erwise dismissed the complaint. Lovell v. proved by the court. Hoffer v. Fair, No. 8591 igan, 680 F. Supp. 928 (W.D. Mich. 1987). Brennan, 566 F. Supp. 672 (D. Me. 1983), (Sup. Jud. Ct., , Suffolk County-).' In 1992, the DOJ{iled a motion to vacate por affd, 728 F.2d 560 (lst Cir. 1984). Acase filed against MCI at Concord suc tions of the decre~ under a new policy an ill October 1990, a lawsuit was filed against cessfully challenged numerous unlawful con nounced by Attothey General William Barr. On the state prison at Thomaston concerning con ditions, including the use of dayrooms for December 1, 1992, the court dismissed some ditions, treatment, and placement in the pro housing prisoners. The practices have ceased relatively minor portions of the decree. In tective-custody and administrative-segregation and the state has settled for money damages. January 1993, the defendants filed a notice of units. Brown v. McKernan, No. 90-246-p (D. jacobs v. Fair, No. 86-81758 (Super. Ct., appeal from the order refusing to dismiss most Me). In March 1991, the parties reached an Suffolk County-). of the case. In the last half of the year, the DOJ agreement to end double-celling in those units In 1991, a consent decree was entered actively sought discovery from the defendants and to enhance programming opportunities. imprOVing the delivery of prenatal services on a variety- of issues. The court granted a Compliance is being monitored. provided to pregnant prisoners at MCI motion to compel inspection by the DOJ; it 20. Maryland:* The Maryland House of Framingham. McDonald v. Fair, No. 85 appears that the DOJ will now attempt to Corrections at Jessup and the Baltimore 80352 (Super. Ct., Suffolk County-). enforce the consent decree. In a change of Penitentiary were declared unconstitutionally Compliance is being monitored. position, in its brief in the Sixth Circuit the DOJ overcrowded in, respectively,Johnson v. 22. Michigan:* The women's prison is defended the order rejecting the stipulation. Levine, 450 F. Supp. 648 (D. Md. 1978), and under a court order concerning the total con Court orders in another case, Knop v. Nelson v. Collins. 455 F. Supp. 727 (D. Md. ditions of confinement, including program- johnson, cover issues not included in the 1978), affd in part sub nom. johnson v. Levine, 588 F.2d 1378 (4th Cir. 1978), on remand, Nos. H-77-113 and B-77-116, (D. Md. Jan. 5, 1981), rev'd and remanded sub nom. Nelson v. Collins, 659 F.2d 420 (4th Cir. 1981) (en banc). Asettlement agreement and consent decree were subsequently entered in both cases. In a case against the Maryland Correctional Institution at Hagerstown, the district court approved a settlement agreement in 1979 that required that double-celling be eliminated and certain conditions improved. Washington v. Keller, 479 F. Supp. 569 (D. Md. 1979). The Washington and johnson cases were later consolidated and further agreements were entered in October 1987 and February 1988. Compliance is being monitored. Subsequent contempt motions filed in these cases have been resolved by negotiation. In April 1993, the judge granted, in substantial .1: part, plaintiffs' Motion to Compel, reqUiring ,2' ~ the defendants to produce documents regard o U ing the prison's policies and practices on TB @.I..- .,.....__...... detection, control, and treatment. 21. Massachusetts: The maximum-securi mingo Gloverv.johnson, 478 F. Supp. 1075 consent decree in United States v. Michigan. ty- unit at the state prison in Walpole was chal (E.D. Mich. 1979); further orders entered, The Knop court entered orders favorable to lenged on total conditions. Blake v. Hall, C.A. 510 F. Supp. 1019 (E.D. Mich. 1981). Later, prisoners on various issues, including the 78-3051-T (D. Mass.). The district court the Department of Corrections was found in provision of legal assistance. Knop v. john decided in the prison officials' favor. On contempt. 659 F. Supp. 621 (E.D. Mich. son, 667 F. Supp. 467 (W.D. Mich. 1987) appeal, this decision was affirmed in part and 1987), vacated and remanded, 855 F.2d 277 (merits); 685 F. Supp. 636 (W.D. Mich. reversed in part and remanded, 668 F.2d 52 (6th Cir. 1988). On remand, the state was 1988) (remedy). (lstCir.1981). required to appoint a special administrator to The Central Complex and most of the North Numerous conditions, sanitation, and space design and implement a remedy for violations Complex at the Jackson State Prison are oper issues at MCI at Walpole are being chal- of the order. 721 F. Supp. 808 (E.D. Mich. ating under a consent decree. Hadix v. john- 6 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL son, No. 80-73581 (E.D. Mich.) (order en 26. Montana:* During 1993, an investiga 28. Nevada:* The Nevada State Prison at tered May 13, 1981). Among other issues, the tion was conducted in order to commence a Carson City has been under a comprehensive decree requires improved health-care deliv lawsuit concerning conditions at the Montana court order since 1980 concerning popula ery, sanitation, out-of-cell activity, and staff State Penitentiary (MSP) located at Deer tion, conditions, and delivery of health-care supervision. Another order in Hadix requires Lodge. Aprior state lawsuit was withdrawn. services. Anew consent decree consolidating the defendants to subdivide the enormous Health-care services, among other issues, are the previous orders was entered by the dis Jackson Prison into more workable units. the subject of this litigation. Lankford v. trict court on May 19, 1988. Phillips v. Compliance is being monitored. Acourt Racicot, CV 92-13-H-LBE (Fifth Amended Bryan, CVR-77-221-ECR (name later changed order was made requiring improved legal Complaint filed Dec. 29, 1993). The .~.' to England v. Miller, with the same docket assistance to prisoners. Hadix v. Johnson, Department of Justice is also contemplating a number). Two monitors appointed under the 694 F. Supp. 259 (E.D. Mich. 1988), affd, CRIPA lawsuit. terms of the agreement have been reporting 871 F.2d 1087 (6th Cir. 1989). In March The women's prison in Warm Springs.has on compliance. By the end of 1993, all areas 1993, the court held hearings on medical severe problems with respect to environmen of the original\decree were in compliance enforcement and mental-health-enforcement tal health and sanitation, the delivery of and the ordet:,'was vacated, with the exception provisions and issued a number of enforce health care, and parity of programming with of the inma(f;Hobs issue. Adecision is awaited ment orders. The defendants filed notices of the men. The state had planned to build a on the defendants' pending motion to vacate appeal from the enforcement orders, and in new facility, but in 1993 withdrew its support that last issue. August 1993 the plaintiffs filed a motion to for such a facility. Alawsuit was filed on April In 1979, a lawsuit was filed challenging the dismiss the appeals. 21, 1993 on behalf of the women prisoners. delivery of mental-health services to all The state appealed from various specific Kay Many Horses v. Racicot, Civ-93-3F-BU Nevada prisoners. Taylor v. Wolff, CVN 79 orders entered in both the Knop and Hadix PGH. Class certification was ordered and dis 162JMB (D. Nev.). An agreement and consent cases. In 1992, the Sixth Circuit, in a consoli covery is ongoing. decree were entered in 1986. Compliance is dated decision, affirmed on the issues of lia 27. Nebraska: Aclass action was filed being monitored. bility in not providing adequate legal assis concerning four general-population units of Women prisoners confined to Nevada tance, the provision of winter clothing, and the Nebraska State Penitentiary. The action Women's Correctional Center have filed a law other matters. The court of appeals reversed challenges overcrowding and other condi suit alleging gender discrimination with on racial harassment and the denial of access tions of confinement, including protection respect to programming and conditions at the to toilets. Knop v. Johnson, 977 F.2d 996 from harm issues. On June 11, 1992, the facility. Defendants' motion for summary judg (6th Cir. 1992), cert. denied sub nom. Knop magistrate judge entered his Report and ment was denied. McCoy v. Nevada v. McGinnis, 113 S. Ct. 1415 (1993) (deny Recommendation, finding that these facilities Department ofPrisons, 776 F. Supp. 521 ing certiorari on the issue of racial slurs). In were not "unconstitutionally overtaxed." (D. Nev. 1991). The case was settled in 1993 March 1993, the trial court scheduled pro However, in terms of the violence issue, the with the filing of a Stipulated Settlement Agree ceedings on the development of the legal magistrate judge found that the defendants ment. Dillard v. Nevada Department of Prisons, access remedial order. failed to develop adequate policies to protect CV-N-89-94-HDM (filed February 10, 1993). 23. Minnesota: The state has kept over prisoners from assault. The magistrate judge 29. New Hampshire:* The state peniten crowding in abeyance through use of sentenc also warned the defendants about the conse tiary is under court order dealing with total ing guidelines that take into account the num quences of continuing population growth, conditions. Laaman v. Helgemoe, 437 F. ber of available prison beds. Also, individual and invited the plaintiffs to return to court Supp. 269 (D.N.H. 1977). The parties negoti facilities and the Department of Corrections upon a showing of changed circumstances. ated a consent decree in May 1990 that have been responsive to complaints raised by This decision was adopted by the district resolved a pending motion for contempt. The advocates for prisoners. judge.jensen v. Gunter, 807 F. Supp. 1463 plaintiffs filed a further contempt motion in 24. Mississippi: The entire state prison (D. Neb. 1992). The state appealed on the June 1993 covering health care and the pris system is under court order dealing with violence issue, but in 1993 the Eighth Circuit on's operation of the maximum-security unit. overcrowding and total conditions. Gates v. held that the appeal was not timely. On Discovery is ongoing. Collier, 501 F.2d 1291 (5th Cir. 1974). remand, the state has submitted a proposed 30. New Jersey: For years, the state has Compliance is not being monitored. remedial plan; hearings will be scheduled. been able to stave off overcrowding in its 25. MissOJlri:* The State Penitentiary at In a case challenging conditions at the prisons by mandating that county jails take Jefferson City is under court order on over Medium Security Unit of the Nebraska State the overflow of sentenced prisoners from the crowding, medical care, and other condi Penitentiary, the court held that there was no state system. However, most of the state's tions. Burks v. Walsh, 461 F. Supp. 454 violation of the Eighth Amendment. However, twenty-one county jails are under court (W.D. Mo. 1978), affd sub nom. Burks v. the court did note that those conditions "are order. In 1993, the New Jersey Supreme Teasdale, 603 F.2d 59 (8th Cir. 1979). On potentially close to creating intolerable con Court, incident to a jail case, lifted the remand, the state was held liable for failing to ditions ...unless remedial measures are requirement that the local facilities must con provide adequate medical care. Burks v. implemented." Kitt v. Ferguson, 750 F. Supp. fine sentenced prisoners. The state was given Teasdale, 492 F. Supp. 650 (W.D. Mo. 1980). 1014, 1019 (D. Neb. 1990), affd without until April 22, 1994 to prepare a plan. In 1982, a separate order was entered on the opinion, 950 F.2d 725 (8th Cir. 1991). 31. New Mexico:* The entire system is medical-care issues. Women prisoners confined to the Nebraska under court order on overcrowding and total Afurther complaint has been filed con Center for Women (NCW) at York brought a conditions. Duran v. Apodaca, C.A. No. 77 cerning conditions at the state penitentiary. class action seeking parity with male prison 721-C (D.N.M.) (consent decree entered Aug. This complaint includes sanitation, fire safety, ers in terms of programs and services. On 1, 1980). Aspecial master was appointed in and violence issues. Wilson v. Moore, No. 87 June 21, 1993, the district court judge June 1983. The defendants moved to vacate 4516-CV-C-5 (W.D. Mo.). In 1992, a class entered a favorable decision. Klinger v. the consent decree, but the district court was certified; the plaintiffs have begun dis Lofgren, 807 F. Supp 1463 (D. Neb. 1993). denied the motion. Duran v. Carruthers, 678 covery efforts. The state has appealed. F. Supp. 839 (D.N.M. 1988). The court of THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 7 -~------"-_._------ appeals affirmed the decision. 885 F.2d 1485 dants liable for racial segregation in housing 1991 challenging aspects of the medical-care (10th Cir. 1989), cert. denied, 493 U.S. and job assignments at Elmira Correctional system, the excessive use of restraints and cell 1056 (1990). Because the state is in substan Facility. Santiago v. Miles, 774 F. Supp. 775 shields, and other conditions at the Special tial compliance with much of the decree, in (W.D.N.Y. 1991). During 1992, the parties Housing Unit prison at Southport, the state's August 1991 the parties agreed to an eventual and the judge developed an order to correct so-called "supermax" facility. Rivera v. vacating of the decree. In exchange, the state the problems. Aremedial order was entered Coughlin (Sup. Ct., Chemung County). Plai agreed to a permanent, nonmodifiable set of in 1993 and is currently being monitored. ntiffs obtained a partial consent order and population controls, including a prohibition Prisoners at Clinton Correctional Facility were successful on other issues. Counsel con against double-ceiling. The district court brought a class-action suit in 1983 concern- > tinue to monitor compliance with the orders. approved this settlement in an order entered ing the delivery of mental-health services. Astatewide class-action suit was filed in on September 20, 1991. Following the special Tomasullo v. LeFevre, 84 CV 1035 . 1990 challenging the inadequate treatment of master's reports evaluating compliance, filed (N.D.N.Y.). Asettlement was reached in eail,y HIV-positive prisoners and deficiencies in the in January 1993, the judge ordered the DOC 1992, including improved access to recre HIV education pr~ram. Inmates with AIDS to resolve health and safety problems at the ation, improved supervision, and the installa v. Cuomo, No. 9.Q.cV252 (N.D.N.Y.). This Penitentiary of New Mexico complex near tion of surveillance cameras. action was certified as a class action and dis Santa Fe, but released from federal court Anderson v. Coughlin was filed as a class covery is proceeding, subject to elaborate supervision the three state prisons that had action on behalf of all mentally ill inmates in safeguards to protect confidentiality. achieved compliance. Conditions at the peni Green Haven Correctional Facility and Auburn 33. North Carolina:* In September 1985, tentiary continue to be audited. Correctional Facility. See 119 F.R.D. 1 a consent judgment was entered covering 32. New York: While no statewide com (N.D.N.Y. 1988). In 1991, the magistrate overcrowding, staffing, programming, and prehensive lawsuits have been brought, judge consolidated Anderson and Tomasullo medical services in thirteen units of the numerous prison facilities are under court (above). Asummary judgment motion was state's road and farm camp system in the order, and injunctive relief has been obtained later filed by plaintiffs. Since 1992, the parties South Piedmont area. Hubert v. Ward, C-C in the following cases: have been involved in settlement negotiations. 80-414-M (W.D.N.C.). Compliance was In 1979, a case was filed challenging the The Attica Special Housing Unit is under achieved, and the case was placed on the delivery of medical care at Green Haven challenge on conditions of confinement. In court's inactive docket. Correctional Facility. Milburn v. Coughlin, 1990, the court granted a preliminary injunc The Craggy Unit outside Asheville was 79 Civ. 5077 (S.D.N.Y.). In 1982, the parties tion providing substantial relief on the deliv under an August 1987 consent decree cover entered into a comprehensive settlement. ery of medical-care services. Eng v. Cough ing conditions and overcrowding. Epps v. Later, in order to settle a contempt motion, lin, CV-80-3859 (W.D.N.Y.). See also 865 Martin, A-C-86-162 (W.D.N.C.). Anew prison the parties negotiated a modified agreement. F.2d 521 (2nd Cir. 1989). In 1992, a settle was completed and Craggy was closed. Compliance is being monitored. ment was reached on the medical issues; a The Caledonia Farm facility is operating Acase was filed challenging delivery of later agreement was reached on the law under a 1988 consent decree concerning medical care at the Bedford Hills women's library claims. Mental-health discussions overcrowding and general conditions. The prison. The court of appeals upheld a favor have been consolidated with the Anderson consent decree imposed a population cap able opinion and order. Todaro v. Ward, 565 and Tomasullo cases discussed above. and emphasized both the protection from F.2d 48 (2nd Cir. 1977). In 1988, a renegoti In May 1992, prisoners housed in over assault and the reduction of violence. Stacker ated consent decree was entered, including crowded dormitory facilities in ten New York v. Stephenson. improvements in the delivery of health care in prisons filed a lawsuit challenging these con There are also pending cases on over general and the enforcement of services to ditions on the grounds that they increase the crowding and conditions at Odom Farm, HIV-positive prisoners. Compliance is being risk of exposure to tuberculosis. TB screen Barnet v. Allsbrook, No. 89-705 CRT BO monitored. In 1993, a further addition to the ing and access to adequate treatment are also (E.D.N.C.), and Harnett Correctional Center, decree was made concerning gynecological at issue. Cunningham v. Coughlin, No. 92 Bass v. Stephenson, No. 87-499-CRT BO care, increasing medical staffing, and provid CV-0579 (N.D.N.Y.). Aclass has been certi (E.D.N.C.). These cases, filed in 1989, are ing that some other terms of the judgment fied and discovery is proceeding. still in the discovery phase. will be relaxed upon a showing of a satisfac The Bedford Hills Correctional Facility was The remaining forty-nine units of the state tory record of compliance. under challenge concerning the delivery of system are operating under a December 1988 Astatewide cla~s-action suit was filed in mental-health services for women confined in settlement covering overcrowding and condi 1980 on behalf of prisoners confined to seg segregation facilities. The injunctive claims tions. Small v. Martin, 85-987-CRT regation units. Anderson v. Coughlin, 80 Civ. were settled by stipulation in 1989. After two (E.D.N.C.). Compliance is being monitored. 3037 (S.D.N.Y.). Aconsent decree was en years of monitoring compliance, the case was In 1993, the state filed a motion for modifica tered in 1984 on the medical and legal closed. Class damage claims were the subject tion; the plaintiffs responded on November access issues. In 1985, the court of appeals of defendants' motion for summary judgment 12, 1993. upheld an unfavorable decision on the exer on the ground of qualified immunity. This 34. North Dakota: No cases have been cise and recreation issues. Anderson v. defense was denied. Langley v. Coughlin, filed dealing with overcrowding or conditions. Coughlin, 757 F.2d 33 (2nd Cir. 1985). 709 F. Supp. 482 (S.D.N.Y.), appeal dis 35. Ohio:* In a case involving the Compliance is being monitored. missed, 888 F.2d 252 (2nd Cir. 1989). In a Southern Ohio Correctional Facility, the dis The protective-custody unit at Green Haven later opinion, the court accepted the recom trict court banned double-ceiling. The Correctional Facility is operating under a mendations of the magistrate to deny defen Supreme Court later reversed this decision. 1983 consent judgment concerning condi dants' further motion for summary judgment Chapman v. Rhodes, 434 F. Supp. 1007 (S.D. tions and practices. Honeycutt v. Coughlin, and for class decertification. 715 F. Supp. Ohio 1977), aJfd, 624 F.2d 1099 (6th Cir. 80 Civ. 2530 (S.D.N.Y.). Compliance is being 522 (S.D.N.Y. 1989). Subsequently, the dam 1980), rev'd, Rhodes v. Chapman, 452 U.S. monitored. age claims were settled for $350,000. 337 (1981). Afederal district court judge held defen- Astate court action was commenced in Apreliminary injunction was entered at the 8 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL Columbus State Prison on the housing of Several prisoner pro se lawsuits have been reduce double-celling in the old 19th-century prisoners by race and on the use of certain transformed into a class-action suit. An cellblocks and to improve staffing and the physical restraints. Stewart v. Rhodes, 473 Amended Complaint and Motion to Certify the delivery of medical and mental-health ser F. Supp. 1185 (S.D. Ohio 1979). Aconsent Class were filed on October 6, 1993, alleging vices. Tillery v. Owens, 719 F. Supp. 1256 decree was later entered in 1979, incorporat inadequate or nonexistent mental-health cov (W.D Pa. 1989), affd, 907 F.2d 418 (3d Cir. ing the provisions of the preliminary injunc erage in all Ohio prisons. Dunn v. 1990), cert. denied sub nom. Mikesell v. tion. See 656 F.2d 1216 (6th Cir. 1981). Voinovich, No. CI-93-0166 (S.D. Ohio). +' Morgan, 112 S. Ct. 343 (1991). The parties The state prison was closed in 1985. 36. Oklahoma:* The state penitentiary,it negotiated a remedial agreement in 1990, The Ohio State Reformatory at Mansfield McAlester is under court order on total con which the court then entered as an order. In was operating under a consent decree on var ditions, and the entire state prison syst~m is early 1991, the district court entered further ious conditions. Boyd v. Denton, C78-1679 under court order on overcrowding. Bqttle v. orders on segregation legal-access issues. The (N.D. Ohio) (order entered June 1983). The Anderson, 564 F.2d 388 (10th Cir. 1977). state appealed from this order; on April 14, prison was closed at the end of 1990. Medical The district court's decision in 1982 to retain 1993, the dist};ct court order was affirmed. care at Mansfield operated under a 1982 con jurisdiction to assure continued compliance Tillery v. Ow~ns, No. 92-3492 (3d Cir.). On sent decree. Register v. Denton, C-78-1680 was upheld. 708 F.2d 1523 (10th Cir. 1983), remand, the parties are negotiating various (N.D. Ohio). The plaintiffs presently are argu cert. dismissed, 465 U.S. 1014 (1984). other segregation legal-aSSistance issues. ing that the decree is applicable to the suc Later, in 1984, the district court relinquished Compliance monitoring is ongoing with cessor facility, called the Mansfield jurisdiction; that decision was affirmed. 788 respect to the other orders in the case. Correctional Institution. In 1993, the parties F.2d 1429 (10th Cir. 1986). Although the On November 20, 1990, a case was filed engaged in settlement negotiations. court has ended active supervision, all com challenging conditions and overcrowding at The Marion Correctional Facility was oper pliance orders are still in effect, and the pen thirteen state facilities, excluding those ating under various court orders concerning itentiary remains under permanent injunc already under court order. Austin v. conditions and population. Taylor v. Perini, tion. In fact, the state recently asked the Lehman, C.A. No. 90-7497 (E.D. Pa.). A No. C69-275 (N.D. Ohio). See published court to vacate or amend the original order motion to dismiss was denied, and discovery orders and reports of the special master in to allow the state to renovate closed housing is under way. On September 28, 1992, the this case at 413 F. Supp. 189 (N.D. Ohio due to overcrowding. The court determined district court entered a preliminary injunc 1976); 421 F. Supp. 740 (N.D. OhiO 1976); that the order is still in effect, and refused to tion ordering the defendants to implement an 431 F. Supp. 566 (N.D. Ohio 1977); 446 F. amend the order because circumstances have effective tuberculosis-control program Supp. 1184 (N.D. Ohio 1977); 455 F. Supp. not changed. Plaintiffs' counsel remains throughout the state prison system. In 1241 (N.D. Ohio 1978); and 477 F. Supp. actively engaged in compliance monitoring. November 1993, trial commenced on the 1289 (N.D. Ohio 1980). The remedial orders 37. Oregon: The state penitentiary was corrections issues; enVironmental-health and were vacated in 1991, following a report and under a court order on overcrowding. Capps health-care delivery issues will be tried recommendation of the special master. v. Atiyeh, 495 F. Supp. 802 (D. Or. 1980), thereafter. Acase filed by an individual prisoner chal stayed, 449 U.S. 1312 (1981) (Rehnquist, 39. Rhode Island:* The entire state sys lenging conditions and crowding at the J.), vacated and remanded, 652 F.2d 823 tem is under court order on overcrowding Hocking Correctional Facility was dismissed (9th Cir. 1981). On remand, the district and total conditions. Palmigiano v. Garrahy, by the district court. On appeal, thiS decision court determined that only medical care and 443 F. Supp. 956 (D.R.I. 1977). Aspecial was affirmed. Wilson v. Seiter, 893 F.2d 861 fire safety violated the Eighth Amendment. master was appointed in September 1977. (6th Cir. 1990). In June 1991, the Supreme 559 F. Supp. 894 (D. Ore. 1982). New population caps were imposed by court Court reversed and remanded. IllS. Ct. Prisoners brought an action concerning order in June 1986. Various contempt orders 2321 (1991). The district court on remand the delivery of health-care services at the have been entered. See, e.g., Palmigiano v. entered summary judgment against the plain Eastern Oregon Correctional Institution. On DiPrete, 700 F. Supp. 1180 (D.R.I. 1988). tiff. The plaintiff filed a notice of appeal; May 29, 1991 the district court entered an On August 21, 1989, the First Circuit affirmed however, because the prisoner was subse opinion holding that such services were con in all respects the trial court's opinions and quently released, the case was dismissed as stitutionally inadequate up to March 1990. contempt orders of October 21, 1988 and moot. Wilson v. Seiter, No. 92-3332 (6th Cir. Van Patten v. Pearce No. 87-298-PA (D. April 6, 1989, imposing sanctions. The trial Aug. 20, 199.,7) (order). Ore.). The court later appointed an expert court ordered that the fines be utilized to In November 1991, a class-action suit was who filed a report. Based on that report, the establish a bail fund to release low-bail brought by prisoners at the London court entered an order requiring improve detainees. 710 F. Supp. 875 (D.R.I.), affd, Correctional Institute concerning overall ments. Order of February 10, 1992. The state 887 F.2d 258 (lst Cir. 1989). In May 1990, conditions of confinement, including over has appealed. the court made an additional finding of non crowding, inadequate building maintenance, 38. Pennsylvania:* Acase was filed at the compliance with population-cap orders and and racial discrimination. Thompson v. women's state prison at Muncy challenging required the release of certain prisoners. Alexander, No. C2:90-CV-845 (S.D. Ohio). equal protection violations and hazardous 737 F. Supp. 1257 (D.R.I. 1990). In Discovery was ongoing during 1993. physical conditions, including fire-safety vio November 1992, the Governor created an Aclass action challenging racial discrimi lations. Beehler v. Jeffes, 664 F. Supp. 931 overcrowding commission, and legislation nation in assigning inmates to double-cells at (M.D. Pa. 1986), affd without opinion sub has now been passed permanently controlling the Southern Ohio Correctional Facility of nom. Beehler v. Lehman, 989 F.2d 486 (3rd the prisoner population at agreed limits, with Lucasville was commenced in 1988. The dis Cir. 1993). Most of the claims have been set a permanent justice oversight committee to trict court approved a settlement requiring tled or voluntarily dismissed; an asbestos monitor developments. The final details of a random housing without regard to race, claim is pending and plaintiffs are monitor settlement agreement covering all of the unless particular circumstances required ing the removal schedule. issues in Palmigiano are being negotiated. otherwise. White v. Morris, 811 F. Supp 341 The State Correctional Institution at 40. South Carolina:* The entire prison (S.D. Ohio 1992.) Pittsburgh (SCIP) is under court order to system is under a 1985 consent decree on THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 9 overcrowding and conditions. Plyler v. Evatt, housing conditions, sanitation, personal safe county prisoners into state custody. In re C.A. No. 82-876-0 (D.S.C. Jan. 8, 1985). A ty, classification, and the delivery of health Clements, 881 F.2d 145 (5th Cir. 1989), and release order entered by the district court in care services to state prisoners. Grubbs V. Alberti V. SheriffofHarris County, 937 F.2d the summer of 1986 was held moot by the Bradley, 821 F. Supp. 496 (M.D. Tenn. 984 (5th Cir. 1991), cert. denied sub nom. court of appeals. 804 F.2d 1251 (4th Cir. 1993). The court then vacated and dissolved Richards V. Lindsay, 112 S. Ct. 1994 (1992). 1986). In 1988 the district court denied the all of the outstanding remedial orders entered 44. Utah: The state penitentiary is operat state's motion to modify the consent decree in the case, except for a requirement in terms ' ing under a consent decree on overcrowding and ordered the state to reduce the prison of health care that a quality-assurance pro and some conditions. Balderas V. Matheson population in conformance with the decree. gram be instituted and a ban on housing any (formerly Nielson V. Matheson), C-76-253 This order was vacated and remanded by the prisoners at the old State Penitentiary in (D. Utah). The 1979 consent decree was court of appeals. 846 F.2d 208 (4th Cir. Nashville. "If the past, present and future offi ignored because it lacked an effective mecha 1988). In 1990 the district court again cials of the State of Tennessee have not nism for enforcement. Alawsuit challenging denied the state's motion to modify the learned a Three Hundred Million Dollar double-ceiling at $e penitentiary was filed in decree and again the court of appeals vacated ($300,000,000) plus lesson in this litigation, 1986. Baker v.1)e:land, No. C86-0361G. In and remanded the case. 924 F.2d 1321 (4th then further instruction is hopeless, and the June 1989, the c6hrt entered a temporary Cir. 1991). There have been extensive subse solution will have to be left for another day restraining ord~1" regarding double-ceiling. In quent negotiations in this case. In 1990, the and another lawsuit". Id. at 503 n.4. November 1991, the magistrate judge filed a parties agreed to permit an increase in popu 43. Texas: In 1980, the entire state prison report with the court recommending that dou lation, but the state made important conces system was declared unconstitutional on ble-ceiling be barred in some units, while per sions in programming and future construc overcrowding and conditions. Aspecial mas mitting it in others after remodeling. On tion. On June 1, 1992, the plaintiffs filed a ter was appointed. Ruiz V. Estelle, 503 F. March 20, 1992, the district court accepted state court action to enforce the terms of the Supp. 1265 (S.D. Tex. 1980), afj'd in part the report and entered an injunction. Baker V. 1985 agreement to utilize extant state statutes and rev'd in part, 679 F.2d 1115 (5th Cir. Holden, 787 F. Supp. 1008 (D. Utah 1992). to reduce population. Plyler V. Evatt, No. 1982). The parties negotiated an agreement In December 1989, a further complaint was 92CP 402275 (Ct. Comm. Pleas, 5th Jud. and, in 1985, a consent decree was entered filed challenging the delivery of medical and Cir.). Also in 1992, incident to the federal on the issue of overcrowding. On December mental-health services at the state peniten action, the defendants moved to modify the 3, 1986, the district court held state officials tiary. Henry V. DeLand, C.A. 89-C-1124 (D. classification and education terms of the in contempt. Ruiz V. McCotter, 661 F. Supp. Utah). On September 8, 1992, the parties 1985 consent decree. An agreement was 112 (S.D. Tex. 1986). The contempt order signed a consent decree to improve mental reached through negotiation and signed by was vacated on April 27, 1987; no fines were health services. Amedical-care plan was sub the parties on August 23, 1993. On October imposed. The state sought to modify the terms mitted to the court, which approved the plan 12, the defendants moved to withdraw their of the consent decree concerning crowding; on February 11, 1993. The court approved a consent to the Compromise Agreement. this motion was denied and the denial was final order settlement of the medical and den Plaintiffs opposed the defendants' motion. affirmed on appeal. Ruiz V. Lynaugh, 811 tal claims on June 1, 1993, and retained The court's decision is pending on this issue F.2d 856 (5th Cir. 1987). During the summer jurisdiction for the purposes of enforcing the and on plaintiff's motion to compel compli of 1989, private corporations operating state settlement. ance with the population requirements of the prisons on a contract basis were added as 45. Vermont:* The old state prison was consent decree. party defendants. closed in the late 1970s. However, conditions 41. South Dakota:* The state penitentiary In 1992, the Ruiz parties filed a negotiated as a result of overcrowding and the delivery at Sioux Falls is under court order on a vari proposed final judgment in the case. The pro of health-care services in Vermont's prisons ety of conditions. Cody V. Hillard, 599 F. posed order contains system-wide and facility (which also house pretrial detainees) are the Supp. 1025 (D.S.D. 1984). The appeals court population limits and the provision of ade subject of a lawsuit filed recently in the feder reversed an overcrowding order, finding that quate medical care, including accreditation by al district court. Goldsmith V. Dean, No. double-celling was not unconstitutional. 830 the NCCHC. Significant orders concerning S:93-CV-383 (D. Vt. filed Dec. 13, 1993). F.2d 912 (8th Cir. 1987) (en bane), cert. staffing, a ban on the use of "building ten 46. Virginia:* The state prison at Pow denied, 485 U.S. 906 (1988). In 1992, the ders'" administrative segregation, and the use hatan is under a consent decree dealing with district court co!!ducted an evidentiary hear of force remain in effect. The agreement re overcrowding and conditions. Cagle V. Hutto. ing on the plaintiffs' motion for enforcement quires compliance with other provisions of 79-0515-R (E.D. Va.). of the order on environmental conditions. the order, including renovation of facilities by The maximum-security prison at Meck The motion for enforcement was granted on June 1, 1993, to permit the termination of the lenburg, including its death-row unit, is un November 29, 1992. special master and the withdrawal of plain der a 1985 court order dealing with various 42. Tennessee:* The entire system is tiffs' class counsel. The final judgment was practices and conditions. Brown V. Hutto, under court order for overcrowding and con approved by the court on December 11, 1992. 81-0853-R (E.D. Va.). ditions. Grubbs V. Bradley, 552 F. Supp. As oOune 1, 1993, pursuant to the terms of The 190-year-old state penitentiary at 1052 (M.D. Tenn. 1982). The court ordered the judgment, the plaintiffs' counsel was Richmond was challenged in 1982 on the a reduction in population, and appointed a relieved of any obligations to the class and the totality of conditions. Shrader V. White, C.A. special master in December 1982. In an Office of the Special Master was discharged No. 82-0247-R (E.D. Va.). The trial court dis October 25, 1985 order, the court enjoined with respect to all but three discrete issues. missed the complaint in June 1983. The court the intake of new prisoners because the state Because the backlog of state prisoners con of appeals affirmed in part and remanded in had failed to comply with the population fined in county facilities affects the Ruiz con part. 761 F.2d 975 (4th Cir. 1985). The reduction terms of prior orders. sent order, the Fifth Circuit has ordered the remand was settled in 1987, covering certain On May 14, 1993, the district court found Ruiz court and the district court having juris prisoner-safety issues. that the defendants cured the constitutional diction over the jail cases to hear jointly any On September 21, 1990, another lawsuit violations previously found in the areas of requests for relief requiring the transfer of was filed challenging deteriorating conditions 10 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL lit the Richmond penitentiary, which on three The Huttonsville Correction Center is also Columbia, No. 80-2136 (D.D.C.) (Central); occasions the state had announced would be under court order with respect to crowding john Doe v. District ofColumbia, No. 79 closed. Congdon v. Murray, 90-CV-00536 and conditions. The detailed order required 1726 (D.D.C.) (Maximum). Aspecial officer (E.D. Va.). On November 21, 1990, the dis population reduction and the building of a has been appointed in both cases. The trict court ordered that basic fire-safety and vocational training center. Nobles v. Gregory, District has been held in contempt for viola sanitation measures be taken immediately. No. 83-C-244 (Circuit Court, Randolph County) tions of the cap at Central. Twelve john Does The state permanently closed the prison on (memorandum and order dated Feb. 22, <:. v. District ofColumbia, 855 F.2d 874 (D.C. December 14, 1990. 1985). Enforcement proceedings are ongoing~; Cir. 1988). In 1992, the district court entered 47. Washington:* The state penitentiary at In 1981, the Supreme Court of Appeals held a further consent decree on various medical Walla Walla was declared unconstitutional on that women prisoners had a state statutory . and mental-health-care issues in the Central overcrowding and conditions, and a special and constitutional right to rehabilitation, ~nd case. (Order oOune 10, 1992.) Compliance master was appointed. Hoptowit v. Ray, C education. Cooper v. Gwinn, 292 S.E.29.'781 monitoring continues. 79-359 (E.D. Wash. June 23, 1980), affd in (W. Va. 1981). Detailed orders were ente'red On December 22, 1986, Lorton's medium part, rev'd in part, vacated in part, and thereafter. The women were transferred in security Occoq~an facilities came under court remanded, 682 F.2d 1237 (9th Cir. 1982). 1990 to a facility located in Grafton, West order, and a p'bpulation cap was imposed. The court of appeals affirmed the subsequent Virginia. Compliance is being monitored. Inmates o/Occoquan v. Barry, 650 F. Supp. decision of the trial court and remanded the 49. Wisconsin:* The state prison at 619 (D.D.C. 1986), vacated and remanded, case again for entry of an order. Hoptowit v. Waupun is under a court order on over 844 F.2d 828 (D.C. Cir.), rehearing en banc Spellman, 753 F.2d 779 (9th Cir. 1985). An crowding. Delgado v. Cady, 576 F. Supp. denied, 850 F.2d 796 (D.C. Cir. 1988) (con order was filed on April 10, 1986. The defen 1446 (E.D. Wis. 1983). taining dissenting opinions and separate dants' motion to dissolve the injunction was The women's prison at Taycheedah is oper statements). On remand, a second trial was denied on May 22, 1987. Compliance is being ating under a 1988 consent decree that held in January 1989. The facility was again monitored. imposes a population cap and deals with pro held unconstitutional, and the defendants Alawsuit filed in 1978 challenged condi gramming, delivery of medical services, and were ordered to devise a plan to alleviate tions and delivery of medical-care services at environmental-health issues. Bembenek v. constitutional violations. 717 F. Supp. 854 the State Reformatory at Monroe. Collins v. Bablitch, No. 86-c-262 (E.D. Wis.). (D.D.C. 1989). Three plans were approved by Thompson, Nos. C-78-79R, C-78-134 (W.D. Compliance is being monitored. the court. In 1992, the district court inter Wash.). The parties agreed to a settlement in 50. Wyoming:* The old state penitentiary preted the mental-health-plan order to 1981 that includes a population cap. Since was being operated under the terms of a stip reqUire that seriously mentally ill prisoners then, the defendants have sought to have the ulation and consent decree. Bustos v. be transferred to the D.C. Jail and be provid decree vacated on four separate occasions. Herschler, C.A. No. C76-143-B (D. Wyo.). ed an adequate treatment program. In 1993, The last motion to vacate was filed in August The federal court relinquished jurisdiction in the plaintiffs filed a motion for contempt on 1992 and approved in February 1993. The early 1983; that prison is now closed. Anew the delivery of mental-health services to plaintiffs appealed to the Ninth Circuit, which prison was opened thereafter. transferred Occoquan prisoners. This motion affirmed; an en banc review has been 51. District of Columbia:* The District was denied by the court without prejudice to requested. jails are under court order on overcrowding renew. Compliance monitoring included tours 48. West Virginia: The state penitentiary at and conditions. Inmates ofD. C. jail v. by plaintiffs' medical and environmental Moundsville is under court order on over jackson, 416 F. Supp. 119 (D.D.C. 1976); health experts. crowding and conditions. Crain v. Bor Campbell v. McGruder, 416 F. Supp. 100 In March 1990, a lawsuit was filed chal denkircher, No. 81-C-320R (Circuit Court, (D.D.C. 1975), affd in part and remanded, lenging crowding and conditions at Lorton's Marshall County) (memorandum and order 580 F.2d 521 (D.C. Cir. 1978) (concerning Modular Facility, a new prison that was dated June 21,1983). The plaintiffs chal the old D.C. Jail). On remand, the court designed as the District's reception-and-clas lenged as insufficient a remedial plan pre ordered a time limit on double-ceiling and an sification facility. Inmates ofModular pared by the defendants. The West Virginia increase in staff at the new D.C. Jail (CDF). Facility v. District ofColumbia, No. 90 Supreme Court of Appeals agreed with the 554 F. Supp. 562 (D.D.C. 1982). In 1985, 0727 (D.D.C.). In the middle of trial, a settle plaintiffs, and ordered the defendants to devel after trial, the district court ordered that ment was reached and a consent decree op a new pia!}. 342 S.E.2d 422 (W. Va. 1986). intake be enjoined. Inmates ofD. C. jail v. entered; the decree includes a population cap Since that 1986 decision, the Supreme Court of jackson, No. 75-1668 (D.D.C. July 15,1985). and requires improvements in medical care. Appeals has maintained jurisdiction over this Aconsent decree, which supplanted the initial (Order of Dec. 14, 1990.) Compliance is case. In 1988, the court ordered the defen order and required a reduction in popula being monitored. dants' improved plan to be implemented, and tion, was entered on August 22, 1985. After On May 20, 1992, a complaint was filed further ordered the state to close the prison. an evidentiary hearing on the delivery of med challenging the delivery of medical care at 376 S.E.2d 140 (W. Va. 1988). Thereafter, ical and mental-health services in 1993, the three other District prisons at Lorton: the opinions on the status of implementation have district judge entered orders appointing a Medium Security Facility, the Minimum been filed on an annual basis. See 382 S.E.2d special officer, requiring her to prepare a Security Facility, and the Youth Center. In 68 (W. Va. 1989); 392 S.E.2d 227 (W. Va. report on improving health-care services, and mates ofThree Lorton Facilities v. District 1990); and 408 S.E.2d 355 (W. Va. 1991). In ordering immediate interim relief. ofColumbia, No. 92-1208 (D.C.D.C.). 1992, the court gave the state a two-year Several facilities at the Lorton Complex, the Discovery is ongoing. extension to close Moundsville, in order to District's facility for sentenced prisoners, are In October 1993, a lawsuit was commenced coincide with the construction and opening of under court order for overcrowding, condi challenging the delivery of health-care ser a new prison to be located at Mount Olive. July tions, and the delivery of health services. vices, conditions of confinement, and dis 1994 is currently the scheduled date for the Population caps are in place at both the criminatory treatment of women prisoners in closing of Moundsville and the opening of the Central Facility and the Maximum Security D.C. prison facilities. Women Prisoners of new facility. Facility. Twelve john Does v. District of the District ofColumbia Dep't ofCorrec- THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 11 tions v. District ofColumbia, No. 93-2052 evaluations on various environmental-health decree ended the lockdown as of December CD.D.C.). Discovery is ongoing. issues. 771 F. SUpp. 11 CD.P.R. 1991). Later 20, 1993. The Criminal]ustice Complex in St. 52. Puerto Rico: The entire Commonwealth in 1991, the court ordered the defendants to Thomas is still locked down, and several prison system is under a 1979 court order transfer the accumulated fine money, ongoing pro se suits challenge conditions of dealing with overcrowding and conditions. amounting to one million dollars per week, confinement there... Morales Feliciano v. Romero Barcelo, 497 F. to the U.S. Treasury. 775 F. Supp. 487 Supp. 14 CD.P.R. 1979). In 1986, the Com CD.P.R. 1991). .'; Edward Koren is a senior staffattorney with monwealth was again found liable on crowd Apopulation cap was established at Ponce '" the NPP. ing, conditions, and delivery of health-care ser District Jail, where sentenced felons are vices in its entire prison and jail system. Two housed. Morales Feliciano v. Hernandez court monitors were appointed. 672 F. SUpp. Colon, 697 F. Supp. 37 CD.P.R. 1988). The,' 591 CD.P.R. 1986). In 1987, the Common district court ordered contempt fines for viQc wealth was held in contempt for violation of lations of the cap; the fines were upheld on" ffJ!mOW@!MW the population limits set out in a 1986 stipula appeal. Morales Feliciano v. Parole Board, " tion. Morales Feliciano v. Hernandez Colon, 887 F.2d 1 (lst Cir. 1989), cert. denied, 494 ==~@@@t=::::::=== 697 F. Supp. 26 CD.P.R. 1987). U.S. 1046 (1990). In 1990, the defendants filed a motion to 53. Virgin Islands: The territorial prison An International Conference on modify the space requirements of the 1986 is under court order dealing with conditions the Present State and Future of stipulation; the plaintiffs renewed their and overcrowding. Barnes v. Government of motion for contempt. In 1991, the court de the Virgin Islands, 415 F. Supp. 1218 CD.V.I. Imprisonment nied the defendants' motion, granted the 1976). As a result of a CRIPA action brought University ofLeicester, England plaintiffs' motion, and entered a prospective by the Department of Justice's Special Litiga E1h - 1(1h Apri/1994 fine of $1 per prisoner per day above the tion Division, the St. Croix prison, Golden ° For further details contact: Julie Trickey, population cap. Morales Feliciano v. Grove, is covered by a 1986 consent decree. Centre for the Study of Public Order, Hernandez Colon, 754 F. Supp. 942 CD.P.R. Following a prolonged lockdown at Golden UniversityofLeicester,154UpperNewWalk, 1991). The court appointed a special master Grove, the DOJ brought a motion to end the Leicester, England, LEI 7QA for the purpose of contracting on behalf of lockdown and participated in a status confer Tel: (0)533522832/525707 the defendants to prepare plans and to make ence with the judge in St. Croix. Aconsent Fax: (0)533 523944 Summary Thirty-nine states plus the Dist , Puerto Rico, and a,* Oregon,* Pennsylvania,* South the Virgin Islands are under ent decree to Washington,* West Virginia, Wisco limit population and/or im either the entire state system or its majorfa jurisdictions are under court orderfor overc1' ns in at least one oftheir majorprison faciliti sdictions are under court order covering t Only three states have never been involved in allenging over- crowding or conditions i . :g list gives the current status ofea wing the name indicate statesljurisdict has been involved in the litigation.) Note: There is some overlap andfourth cate gories because, in some stat .ities are under court order whiJe otherfa epresently being challenged (e.g., Illinois). ted in both the second and third categori tel'facility is still aska,* Arizona,* Arkansas,* under the court order enten son but is no a, Hawaii,* Idaho,* Illinois,* Kan longer under active court su a,* New Mexico,* New York,* ° d,* Tennessee,* Texas, Washington, Entire Prison System Under to Rico. 9 jurisdictions: Alaska,* Delaw Rhode Island,* South Carolina Facilities Under Court Order an ent and past) Major Institution(s) in the S ichigan,* Mississippi, Rhode lsI Under Court Order or Co olumbia,* Puerto Rico. 33 jurisdictions: Arizona,*C Connecticut,* Florida, Hawaii,* Idaho,* Illi ,* Kansas, Overcrowding or Kentucky, Louisiana, Maine,* usetts,* Michigan,* Missouri,* Nevada New York,* North New Jersey, North Dakota. 12 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL _...------_._------_...- .._------ A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL. 9, NO.1, WINTER 1993/94 • ISSN'0748-2655 "j .,) omitted). Many in Congress and elsewhere their religions which was weakened by the viewed this sweeping statement as a signifi decision in OiLone v. Estate ojShabazz," cant threat to citizens' religious rights. One Senate Rep. 103-111 at 9, and that before federal appeals court remarked that Smith O'Lone, "courts evaluated free exercise chal Highlights ofMost appeared to have "cut back, possibly to lenges by prisoners under the compelling minute dimensions, the doctrine that governmental interest test." House Rep. at 7. Important Cases requires government to accommodate, at Behind these blithe pronouncements lurks some cost, minority religious preferences...." a much messier reality: Before O'Lone, only a EXERCISING RELIGIOUS FREEDOM Hunaja v. Murphy, 907 F.2d 46,48 (7th Cir. few courts had adopted the "compelling IN PRISON 1990). interest test" in prison cases. Kennedy v. Employment Division v. Smith did not Meachum, 540 F.2d 1057, 1061 (10th Cir. The biggest recent news about prison case directly address prisoners' religious rights 1976) ("interests of the highest order"); law is actually about legislation. The Reli (although Hunaja noted that Smith cut back Barnett v. Rodgers, 410 F.2d 995, 1003 gious Freedom Restoration Act (RFRA) of "the doctrine on which all the prison religion (D.C.Cir. 1969); Walker v. Blackwell, 411 1993, P.L. 103-141, signed by President cases are founded." !d.) Nor did Smith have F.2d 23, 24-25 (5th Cir. 1969). Others Clinton in November 1993, overrules two much practical effect on prison litigation. required only a showing of an interest that decisions by the Supreme Court that took a That is because for prisoners, the damage was "important," Shabazz v. O'Lone, 782 restrictive view of religious rights. had already been done in O'Lone v. Estate oj F.2d 416,420 (3rd Cir. 1985) (en bane), The core text of the statute prOVides: Shabazz, 482 U.S. 342 (1987), which had rev'd sub nom. Estate ojO'Lone v. Shabazz, Sec. 3. FREE EXERCISE OF RELIGION held that prison religious restrictions must 482 U.S. 342 (1987); Madyun v. Franzen, PROTECTED be upheld as long as they are "reasonably 704 F.2d 954, 959-60 (7th Cir.), cert. (a) IN GENERAL.-Government shall related to legitimate penological objectives," denied, 464 U.S. 996 (1983), "legitimate," not substantially burden a person's ex the same standard that it had applied to all Walker v. Mintzes, 771 F.2d 920,929 (6th ercise of religion even if the burden re other claims of infringement of prisoners' Cir. 1985), or "substantial," Shabazzv. sults from a rule of general applicabili constitutional rights. Turner v. Safley, 482 Barnauskas, 790 F.2d 1536, 1539 (1Ith ty, except as provided in subsection (b). U.S. 78, 89 (1987). Any notion of the "pre Cir.) , cert. denied, 479 U.S. 1011 (1986); or (b) EXCEPTION.-Government may ferred" status of free exercise rights, or they simply accepted prison security and substantially burden a person's exer indeed any hierarchy of importance of consti order as justifying religious restrictions with cise of religion only if it demonstrates tutional rights, was rejected in Turner and out specifying the constitutional rule or stan that application of the burden to the O'Lone. dard that they applied. Jones v. Bradley, 590 person- The RFRA explicitly states that it is intended F.2d 294,296 (9th Cir. 1979). (1) is in furtherance of a com to overrule Employment Division v. Smith Moreover, "compelling interest" is only pellinggovernmental interest; and and reinstate the compelling interest test of half of the RFRA's standard. The statute also (2) is the least restrictive means of Sherbert v. Verner, 374 U.S. 398 (1963) and requires that restrictions on religious exer furthering that compelling governmen Wisconsin v. Yoder, 405 U.S. 205 (1973). cise be narrowly tailored to constitute the tal interest. [Emphasis supplied] O'Lone is not mentioned in the text of the "least restrictive means" of serving a com There is no question that the law applies to law. However, the legislative history is clear pelling interest. Only one of the prison com I prisons. The legislative history explicitly that Congress intended to overrule O'Lone as pelling interest cases, Barnett v. Rodgers, refers to prisons, and a last-minute attempt well. H.Rep. No. 88, 103d Cong., 1st Sess. at explicitly adopted a least restrictive means in the Senate to exclude prisoners from the 7 (1993) ("House Rep."); S.Rep. No. 111, test. The others did not state the reqUired statute's coverage was defeated. 103d Cong., 1st Sess. at 9 (July 27, 1993) degree of tailoring, Walker v. Blackwell, 411 The statute's main target is the Supreme ("Senate Rep."), reprinted in 1993 F.2d at 24-25, or stated it ambiguously. Court's holding in Employment Division v. U.S.C.C.A.N. 1892, 1898-99. Kennedy v. Meachum, 540 F.2d at 1061 Smith, 494 U.S. 872 (1990), that "the right (holding that inmates' free exercise rights of free exercise does not relieve an individual The Mythical Golden Age can be overcome by "only those interests of of the obligation to comply with a 'valid and Ostensibly, the RFRA enlarges prisoners' the highest order and those not otherwise neutral law of general applicability on the free exercise rights by turning the clock served... ) (emphasis supplied), quoting ground that the law proscribes (or pre back. The legislative history indicates that the Wisconsin v. Yoder, 406 U.S. 205, 215 scribes) conduct that his religion prescribes statute is intended "to restore the traditional (1973) . (or proscribes).'" 494 U.S. at 879 (citations protection afforded to prisoners to observe Courts that did not require a compelling THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 13 interest presented an equally mixed bag with law that can be identified as applying both the any case it is hard to imagine that a court respect to their means/ends requirements. compellinginterest and least restrictive would conclude otherwise. But in cases Some adopted a variation of the least restric means standards. Analytically, the "traditional chiefly involVing issues of money-for exam tive means standard. See Shabazz v. O'Lone, protection" enjoyed by prisoners before ple, most prison diet cases-the new statute 782 F.2d at 420 (state must show that "no O'Lone is mythical. may shift the advantage significantly toward reasonable method exists by which [prison plaintiffs. The same may be true where the ers'] religious rights can be accommodated Applying the RFRA Standard issue is one of administrative convenience. without creating bona fide security prob One approach to this problem is to employ ,c For this reason, it is certain that prison offi lems"); Native American Council ofTribes what might be called analytical brute force, as cials will attempt to manufacture security v. Solem, 691 F.2d 382, 385 (8th Cir. 1982) follows. The RFRA adopts the compelling rationales for practices that are in reality (restriction is unconstitutional if it is "more interestlleast restrictive means test. That te~t based on financial or administrative factors, restrictive than necessary to meet the penal is the constitutional standard most favorable and that disputes over this question will play system's objectives"); Shabazz v. Barnaus to citizens challenging restrictions on their" a major role in Rli'RA litigation. kas, 790 F.2d at 1539 (restrictions "must be rights by government. Therefore, any result Even in cases where a compelling interest no greater than necessary to protect the gov favorable to a prisoner plaintiff that was is at stake, the &RA requires prison officials ernmental interest involved"); Barrett v. reached under any standard would, a to employ the ieast restrictive means in bur Virginia, 789 F.2d 498,502 (4th Cir. 1982) fortiori, have been reached under the com dening religious rights. How this standard (restrictions must be "no broader than is pelling/least restrictive standard. Therefore, will be applied in prison cases is unclear. The necessary to the protection of those inter the body of pre-O'Lone case law to which legislative history expresses an expectation ests"); see also Abdul Wali v. Coughlin, 754 courts should look is the body of cases in that "the courts will continue the tradition of F.2d 1015, 1033 (2nd Cir. 1985). Others did which the prisoner won. giving due deference to the experience and not. Dettmer v. Landon, 799 F.2d 929, 933 Stated so globally, this argument probably expertise of prison and jail administrators in (4th Cir. 1986) (rejecting least restrictive seems unsubtle at best and overreaching at establishing necessary regulations and proce means), cert. denied, 483 U.S. 1007 (1987); worst. In a less sweeping form, it may be use dures to maintain good order, security and Madyun v. Franzen, 704 F.2d at 959-60 ful in persuading a court to resurrect or give discipline, consistent with consideration of (reasonable adaptation reqUired); Walker v. weight to a favorable older decision in a par costs and limited resources." Senate Rep. at Mintzes, 771 F.2d at 930 (restrictions must ticular jurisdiction. The clearest case for such 10, citing Procunier v. Martinez, 406 U.S. be "reasonably related to prison security"); an argument is presented when a court rely 396,404-05 (1974). Capoeman v. Reed, 754 F.2d 1512, 1516 ing on O'Lone has explicitly overruled earlier This language is hard to square with the (9th Cir. 1985) (declining to read least re precedent. See, e.g., Fromer v. Scully, 817 terms of the statute itself. After all, the strictive means into prior circuit authority). F.2d 227 (2nd Cir. 1987), overruled by Turner/O'Lone reasonableness test itself is a To complicate matters further, as the 1980s Fromer v. Scully, 874 F.2d at 73-74 (striking manifestation of this "tradition" of deference. progressed, courts frequently framed prison down prohibition on beards longer than one In particular, Turner admonished courts to ers' free exercise claims in the terms empha inch as applied to an Orthodox Jew); Teterud consider sized by the Supreme Court in its prison v. Burns, 522 F.2d 357 (8th Cir. 1975), over the impact accommodation ofthe jurisprudence, such as the necessity for "def ruled by Iron Eyes v. Henry, 907 F.2d at 813 asserted constitutional right will erence" to prison officials' judgments and the (striking down prohibition on long hair as have on guards and other inmates, presence of an "exaggerated response" to applied to a Native American). and on the allocation ofprison their concerns, and not in the language of On many issues and in many jurisdictions, resources generally.. .. When accom degree of justification and the relation of ends there will be no such favorable precedent to modation ofan asserted right will and means that has characterized "free world" resurrect. It will therefore be necessary to have a significant "ripple effect" on First Amendment jurisprudence. See, e.g., build a new jurisprudence of prisoners' free fellow inmates or on prison staff Fromer v. Scully, 817 F.2d 227, 230 (2nd Cir. exercise claims. From a prison litigator's courts should be particularly defer 1987) (relying on deference holdings to limit standpoint, the starting point in developing an ential to the informed discretion of important interestlleast restrictive means stan approach to the RFRA is to identify the ways prison officials.... dard to religious activities not deemed "pre in which it differs from the O'Lone standard. 482 U.S. at 90. sumptively dang~rous"); Tisdale v. Dobbs, They are substantial. To some degree, the resolution of this 807 F.2d 734, 739 n. 3 (8th Cir. 1986) Under O'Lone, a governmental interest apparent conflict may be found in another (declining to reach least restrictive means need only be "legitimate" to justify restricting clause of the statute, which states that govern question without evidence of an exaggerated religious rights; under the RFRA, the interest ment must "demonstrate" that burdens on response). In addition, as the judicial attitude must be "compelling." In most prison cases, religious exercise meet the compelling inter I toward prisoners' claims became more hos this difference will not count for much. The estlleast restrictive means requirements. This tile, courts sometimes ruled with little refer legislative history clearly contemplates that is a substantial change from former law, ence (or little honest reference) to their own interests in security and order will be treated which generally places the burden of proof prior precedents. See, e.g., Dettmer v. as compelling. "Ensuring the safety and and persuasion on the plaintiff. O'Lone, 482 Landon, 799 F.2d at 933-34 (rejecting least orderliness of penological institutions, as well U.S. at 350. In particular, it relieves the bur restrictive means without reference to earlier as maintaining discipline in our armed den on plaintiffs to "point to an alternative decisions embracing it); Udey v. Kastner, 805 forces, have been recognized as governmental that fully accommodates the prisoner's rights F.2d 1218, 1221 (5th Cir. 1986) (upholding interests of the highest order." House Rep. at at de minimis cost to valid penological inter restriction based on "a problem that the state 8; see also Cong.Rec. H8714 (dailyed., ests" in order to prevail. Turner v. Safley, has a good reason to avoid" and "might create November 3, 1993) (remarks of Rep. Hyde) 482 U.S. at 91. undue cost and administrative burdens"; no ("maintaining security, discipline and order" The importance of this last point cannot be reference to prior compelling interest cases). in prison "should qualify as a compelling overstated. The determination of what alter Thus, there is no substantial body of case interest under this statutory standard"). In natives exist within an administrative struc- 14 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL ture operated by prison officials is a matter court has accepted such an extreme argument defense is available only to persons sued in that is most easily addressed by prison offi (perhaps because no prison system has their individual capacities, and not to govern cials' and the placement of this burden on pressed it), but there is no principled stop mental units, who will be the most common plaintiffs was one of the most strikingly lop ping place once the argument based on alter RFRA defendants. Owens v. City ofIndepen sided aspects of the Turner/O'Lone standard. natives is accepted. dence, 445 U.S. 622, 100 S.Ct. 1398 (1980). But exactly what it is that government must The RFRA disposes of the alternatives Attorneys' fees, too, are available to the pre "demonstrate" remains unclear. Amajor approach by requiring that any "substantial vailing party in an RFRA suit on the same bone of contention in litigation under Turner burden" be justified under the compelling terms as under other civil rights statutes. and O'Lone is the extent to which prison offi interest/least restrictive means test. Nothing:> Putting these factors together, it would cials may restrict rights in the service of secu in the statute authorizes officials to justify a appear, for example, that if a state or city rity or other concerns that are purely hypo restrictive practice on the ground that otqer correctional officer bars a prisoner from reli thetical or anticipatory. Many courts have kinds of religious observance are permitt~d, gious services for a reason that is short of granted prison officials such latitude in this compelling, thl\prisoner can recover an respect that questions of burden of proof Litigating under the RFRA award of damllg'es from the state or city become almost irrelevant. For example, in In addition to the more favorable legal agency that employs the officer, as well as an Smith v. Delo, 995 F.2d 827 (8th Cir. 1993), standard, the new statute provides several award of atto'rneys' fees, regardless of the court upheld the removal of correspon important advantages to litigators. whether the officer acted pursuant to policy. dence to the media and the clergy from the Section 3(c), titled "Judicial Relief," pro This is true even in cases where the prisoner "privileged" category of outgoing mail that is vides, "A person whose religious exercise has would have lost under the O'Lone standard not read by prison staff. It observed that it been burdened in violation of this section and where there was no prior ruling that the was not "terribly important" that there was no may assert that violation as a claim or defense religious restriction at issue was unconstitu evidence of transmission of escape plans, in a judicial proceeding and obtain appropri tional. contraband, threats, or evidence of illegal ate relief against a government." Thus, the In light of some judges' hostility toward activity in mail to the clergy or media. statute explicitly creates a cause of action, prisoners' claims, some lower federal courts "[P]rison officials do not need to wait for and not simply a statutory right enforceable may invent limitations on prisoners' remedies problems to occur before addressing them; through 42 U.S.C. §1983. In any prison reli under the RFRA by interpreting the phrase prison officials are entitled to act preemptive gious freedom case, the RFRA should be "appropriate relief" in restrictive ways, ly in order to prevent problems from occur explicitly pled as a separate ground for relief although there is no warrant in either the ring in the first place." Id. at 831. from §1983-indeed, as the primary ground statutory language or the legislative history , By contrast, the House committee report for relief. for doing so. Such efforts should be resisted states that under the RFRA, "Seemingly rea Relief is available against a "government," in trial courts and challenged in appellate sonable regulations based upon speculation, which is defined as "a branch, department, courts, keeping in mind that Congress has exaggerated fears of [sic: read 'or'] thought agency, instrumentality, and official (or other made no distinction between prisoners and less policies cannot stand." House Rep. at 8; person acting under color of law) of the other citizens with regard to the remedies accord, Senate Rep. at 10 ("inadequately for United States, a State, or a subdivision of a provided by the RFRA. The body of remedial mulated prison regulations and policies State." Thus, the RFRA is an exception to the law that develops in nonprison cases under grounded on mere speculation, exaggerated Eleventh Amendment's restrictions on federal the RFRA should be applicable without excep fears, or post-hoc rationalizations will not court suits against states and their agencies. tion to prisoners' claims as well. suffice to meet the act's requirements"). In There is no suggestion in the statute's lan light of this language, it is hard to avoid the guage or in the legislative history supporting conclusion that prison officials will be held to any distinction between restrictions imposed a higher and more fact-based standard of jUs as a matter of government policy and those Other Cases tification for the security rationales that they imposed at a lower level of officialdom. Thus, invoke when restricting free exercise rights. the showing of municipal policy required by Worth Noting Finally, one particularly troublesome ele Monell v. Department ofSocial Services, ment of the Turner/O'Lone standard appears 436 U.S. 658 (1978), and its progeny, to to have been ~onclusively rejected. That is the obtain relief against municipal governments U.S. COURTS OF APPEALS analysis of whether a restriction leaves open under §1983, appears to be unnecessary "alternative means of exercising the right that under the RFRA. Cruel and Unusual Punishment remain open to prison inmates." Turner, 482 The statute provides for "appropriate relief Proof of Harm U.S. at 90. Applying this analysis, the Supreme against a government" without further expla Strickler v. Waters, 989 F.2d 1375 (4th Court in O'Lone upheld the exclusion of cer nation. Nor is there any elaboration on this Cir. 1993), cert. denied, 114 S. Ct. 393 tain inmates from Muslim Jumu'ah services in point in the legislative history. However, the (1993). This court previously held in Lopez part because they were able to pray together Supreme Court has stated that there is a pre v. Robinson that to establish an Eighth during nonworking hours, to observe Rama sumption that a federal statute creating a pri Amendment violation, '''there must be evi dan, and to follow Muslim dietary restric vate cause of action permits the recovery of dence of a serious medical and emotional tions. 482 U.S. at 351-52. damages. Franklin v. Gwinnett County deterioration' attributable to the challenged This line of argument leads straight to Public Schools, 503 U.S. _, 112 S.Ct. 1028, condition." Now, it "reaffirm[s]" this "essen reductio ad absurdum. Prison officials could 1034-35 (1992). The primary defense to tial holding," rephrasing it to require "evi well argue that as long as all inmates are damage liability under §1983 is qualified dence of a serious or significant physical or allowed to pray silently while locked in their immunity, which bars the award of damages emotional injUry resulting from the chal cells, the existence of this "alternative" ab against state actors unless they violate rights lenged conditions." (1381) At 1381 n.6: solves them of any further obligation to ac that are "clearly established." Harlow v. Atfirst blush, the standard that we commodate prisoners' religious rights. No Fitzgerald, 457 U.S. 800, 818 (1982). That embrace today might be thought to THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 15 exclude instances where pain was dures manual. This evidence established a district court granted the motion. suffered but no enduring injury policy of deliberate indifference. Expert testi At 633: resulted. We are satisfied, however, mony supported a finding that the events A district court must determine that in the unusual circumstance would not have happened if officers had whether and when to terminate where such pain is sufficiently seri known that they must report all confronta supervision orjurisdiction over a ous to rise to the level ofa constitu tions, that citizens could report complaints, consent decree by considering the tional violation, it will either itself and that complaints would be investigated. specific terms ofthe consent constitute a serious physical injury decree.. .. Severalfactors to be con or will result in an emotional injury Denial of Ordered CarelPersonal sidered include: (1) any specific that would be cognizable under our Involvement and Supervisory Liability terms providingfor continued standard.... [Citations omitted] Durmer v. O'Carroll, 991 F.2d 64 (3rd' " supervision andjurisdiction over the Crowding (382): The plaintiff's com Cir. 1993). The plaintiff entered prison witb a consent decree; (2) the consent plaints about double-bunking do not meet the back injury and the sequelae of two strokes', decree's underlying goals; (3) serious injury standard. for which his doctor had prescribed extensive whether ther.'!Jhas been compliance Law Libraries and Law Books 0383 physical therapy. He did not receive the pre with priorr;i/urt orders; (4) whether 87): The plaintiff's claim of inadequate law scribed therapy, but the physician in charge defendants made a goodfaith effort library access is rejected in view of his failure at the prison prOVided some treatment and to comply; (5) the length oftime the to establish actual injury. The court rejects sent him to some specialists. consent decree has been in effect; the view that deprivation of the "core Summary judgment for the defendants was and (6) the continuing efficacy of requirements" of court access violate the inappropriate. The plaintiff received no phys the consent decree's enforcement.... Constitution independent of any showing of ical therapy for seven months before he saw Court supervision is often expected injury. The plaintiff's allegation that he would the defendant physician, although time is of to continuefor severalyears, in have filed his habeas corpus petition earlier the essence if physical therapy is to be effec order to assure compliance with the and would have been released earlier is tive. Then the defendant sent him to a neurol relevant decrees.. .. When the defen termed "vague and conclusory." ogist rather than beginning physical therapy. dants are shown to be in compliance Privacy (1387-88): "... [Wlhen not rea The neurologist recommended physical ther with its terms and the objectives of sonably necessary, exposure of a prisoner's apy, but the defendant ignored the recom the consent decree have been genitals to members of the opposite sex vio mendation for four-and-a-half months. Atrier achieved, the district court'sjuris lates his constitutional rights...." However, of fact could find that the defendant's prof diction over the case may be termi the Constitution was not violated by jail prac fered reasons were a pretext and that he nated. tices, in which female officers only viewed avoided physical therapy because it would The terms of the decree included specific male inmates from the waist up in a strip have placed a considerable burden and requirements for terminating supervision or search area and in which efforts were made expense on the prison system, Delay of treat jurisdiction, including findings of compli to have them patrol cellblocks at regular and ment for nonmedical reasons can constitute ance, and specified a twenty-year period for therefore predictable times. deliberate indifference (68-69). certain issues. The court abused its discre tion in terminating supervision and jurisdic Use of ForcelMunicipalities Medical Care/QUalified Immunity tion inconsistently with these terms. Vineyard v. County ofMurray, Ga., 990 Foulks v. Cole County, Mo., 991 F.2d 454 Modification of consent decrees requires F.2d 1207 (11th Cir. 1993). The plaintiff was (8th Cir. 1993). The plaintiff was taken to an a complete hearing and findings of fact. In arrested and taken to a hospital for previously emergency room after being assaulted, found institutional litigation, the lower court must sustained injuries. The officers thought he to have an outstanding warrant from another identify '''a defect or deficiency in the origi might have overdosed on drugs and along state, and turned over to the police with a nal decree which impedes achieving its goal, with hospital personnel tried to force him to head injury instruction sheet. He received no either because experience has proven it less drink a substance that would make him vomit. medical treatment despite the fact that he was effective, disadvantageous, or because cir The officers told the hospital staff to leave and throwing up blood and that his mother cumstances and conditions have changed that he would cooperate when they returned. noticed that his speech was slurred and which warrant fine-tuning the decree.' They then beat him repeatedly in the head and requested, unsuccessfully, to bring a doctor [Citation omittedl The modification must fur chest. He sustained a broken jaw among other in at her own expense. The defendants are ther the purpose of the consent decree, with injuries. Ajury awarded $115,000 in compen not entitled to qualified immunity. out upsetting the basic agreement between satory damages and $60,000 and $20,000 the parties." (634) respectively in punitive damages against the CrowdingIModification ofJudgments The district court should not have relied on officer who administered most of the blows Heath v. DeCourcy, 992 F.2d 630 (6th Cir. unverified statements in the record, unau and the officer who struck a few blows and 1993). The district court in earlier proceedings thenticated materials and counsel's argument did not stop the other officer. had sua sponte added a "sunset provision" to a to support modification of the judgment. The The record supported a verdict against the consent judgment, which the appeals court held district court did not fully consider the "Rufo county. It showed that the Sheriff's Depart in an unreported opinion should not have been factors." At 635: ment gave whoever answered the telephone done (n.l). Further proceedings resulted in a ., ,First, neither defendants nor discretion about the initial handling of com new consent decree that included population the district court identified a "sig plaints and that no log of complaints was caps, and more enforcement litigation resulted. nificant change in circumstances" maintained. In this case, the officers who Subsequently, the court found the defendants in warranting revision ofthe consent were the object of the complaint were sent to substantial compliance and ended supervision decree .... In fact, overcrowding had take statements from the witnesses. No one over everything but the population caps. The been an ongoingproblem over sever completed an arrest report on the incident. defendants then moved to increase the popula alyears, resulting in the premature The Department had no policies and proce- tion caps by increasing double-ceIling and the release ofinmates. Second, the dis- 16 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL trict court did not inquire into the and bathing water, proper physical therapy, ordinates followed the policies he estab goodfaith ofdefendants' settlement and proper medical treatment, not turned lished, and that he failed to take specific, intentions or anticipation of regularly, harassed in various ways, and low-cost actions that were available to him changes in conditions that would allowed to lie in his feces and vomit for and that his successors successfully under make the consent decree onerous hours. Ajury returned verdicts against "the took. His defaults included improper and and unworkable.... Third, the dis officer in charge of the jail" for $10,000, inadequate staff training; a staff out of control trict courtfailed to determine ifthe against the nurse in charge of medical ser- ~' who did not report rapes, assaults, and illegal proposed changes were "suitably tai vices for $1,000, and against the corporatioft activities; failure to station officers to patrol lored to the changed circumstances. " that provided medical services for $60,00(}: the dormitories; permitting inmates to More importantly, however, the dis The verdict against the officer in charge of obscure vision by hanging sheets; the lack of trict court should have required the jail is supported by evidence that he,', a standard procedure for investigating allega defendants to present evidence in received daily communications about the tions of rape; his failure to control inmate support oftheir position to allow plaintiff and his problems. At 1457: "In the movement, peilnitting aggressive inmates to double-ceiling and to increase the absence of inquiry or at least some show of move casuallY"Within the dormitories; and the inmate population, with an opportu concern about Hicks' condition and the failure to tranSfer inmates who were known nity then for the plaintiffs to contra problems with that condition, the jUry rea or should have been known as assailants. dict the evidence. In making our rul sonably could have found that Frey at least The causation reqUirement of §1983 was ing, we are not unmindful ofthe acqUiesced in the mistreatment of Hicks that met by evidence of five conditions that were burden on the docket that a case of the jury found occurred." In addition, he under the warden's control and created an this magnitude makes.... However, it knew that the plaintiff was completely depen unconstitutional risk of violence: a preva also affects the constitutional rights dent on a wheelchair and that his cell was too lence of weapons, the lack of adequate ofcitizens, so the courts must be small for a wheelchair, and that he had no patrols, the lack of adequate reporting proce ever vigilant to preclude a termina access to shower facilities. dures for rapes and assaults, the presence of tion or modification ofproceedings The verdict against the nurse was support "obvious and rampant indicia of homosexual until everyone affected has an ed by evidence that she directly supervised activities," and a lack of supervision of offi opportunity to be heard. the nurses who gave daily care and that she cers. The rapes of the plaintiffs flowed direct knew of the plaintiff's complaints. The jury ly from these lawless conditions. (1539) Use of Force/Qualified Immunity could have found that she displayed deliber However, the district court should have iden Hill v. Shelander, 992 F.2d 714 (7th Cir. ate indifference "both by failing to address tified the specific potential solutions that the 1993). The plaintiff alleged that an officer [the complaints] herself and by implicitly defendant actually or recklessly disregarded grabbed his hair and shoulder, pulled him authorizing, approving, or knowingly acqui and determined whether they would in fact out of his cell, slammed his head and back escing in unconstitutional conduct of others have eliminated the "infirm" conditions. against the bars, hit him in the face, and over whom she had supervisory authority." kicked him in the groin. (1457) The fact that witnesses could not Procedural Due Process Although qualified immunity doctrine identify by name some of the subordinates in Administrative Segregation/Qualified "eschews an inquiry into subjective intent, in question was irrelevant. ImmunitylPersonal Involvement and some cases, proof of the defendant's mental Supervisory Liability state is an element of the constitutional viola Protection from Inmate Assault Hall v. Lombardi, 996 F.2d 954 (8th Cir. tion." (717) An assertion of improper moti LaMarca v. Turner, 995 F.2d 1526 (1 lth 1993). The plaintiff was placed in the Special vation must be accompanied by some specific Cir. 1993). The district court entered an Management Facility, a "behavior modifica factual support. The facts alleged-an unpro injunction benefiting the class and awarded tion and administrative segregation unit." The voked assault, and continuing abuse even damages to some of the named plaintiffs Classification Committee repeatedly recom though the plaintiff did not fight back--sup based on evidence of a pervasive risk of sexu mended that he be released to general popu port an inference of malicious intent. Since al assault at a Florida prison. lation protective custody, but he was not the qualified immunity question turns on a The record "painted a dark picture of life released. disputed issue of fact, the court lacks juris at GC1; a picture that would be apparent to The defendants were not entitled to quali diction over.the appeal. any knowledgeable observer, and certainly to fied immunity. Although the relevant regula The defendant argued that there was no an official in Turner's position. An inference tions had not preViously been held to estab clearly established right at issue because the can be drawn from this evidence that [the lish a liberty interest, such a holding was pre Eighth Amendment force standard is a bal warden] did know that GC1 failed to provide dictable since there are many Supreme Court ancing test, "meaning that no generalizable inmates with reasonable protection from vio and Eighth Circuit cases supporting the well parameters exist." (718) However, it is well lence." (1536-37) The court distinguishes developed legal principles governing liberty established that beating a prisoner with mali Rizzo v. Goode by noting that the warden's interests. At 959: "Any reasonable official cious intent violates the Eighth Amendment. personal involvement was not based solely on would understand that once Hall obtained statistical patterns. At 1536 n.21: "Moreover, final approval for release, he had a legitimate Disabled/Cruel and Unusual [the warden's] supervisory role and the insu expectation of being released in a reasonable Punishment-Proof of Harm lar character of prison communities provided amount of time, and that failing to meet that Hicks v. Frey, 992 F.2d 1450 (6th Cir. strong support for the court's conclUSion that expectation for such a long time violated 1993). The plaintiff was rendered paraplegic [the warden] must have known of these con Hall's rights." in an escape attempt. Initially he was placed ditions." At 961: in a converted cell designed for his needs; he Despite the warden's efforts to ameliorate ... IPJ roofofactual knowledge is was later moved to an isolation cell as pun the conditions and his budgetary constraints, not an absolute prerequisitefor ishment for the escape attempt. He presented his deliberate indifference was supported by imposing supervisory liability.. .. We evidence that he was deprived of drinking evidence that he failed to ensure that his sub- have "consistently held that reckless THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 17 disregard on the part ofa supervisor court orders that the defendants within ten take them off or how to ensure the detainee's will suffice to impose liability. " days either prOVide the level of care recom welfare while they were in use. Accordingly, [Citations omitted] mended by its own doctors or evacuate the the county is liable for $5,000 in compen Prison regulations required the reporting affected class members to a place (except satory damages (presumably the same award to the warden of the names of all inmates Haiti) where such medical care is available. that the defendants are individually responsi assigned to the Special Management Facility, ble for). the reason for the assignment, and the length Hygiene/Qualified Immunity of time assigned; the warden was reqUired Matthews v. Peters, 818 F.Supp. 224 Privacy personally to review assignments and reten (N.D.Ill. 1993). The plaintiff's allegation that Arry v. Robinson, 819 F.Supp. 478 (D.Md. tions of more than one year and report them he was denied hot water in his cell during 11 1992). In a newly constructed prison, the toi to the commissioner. "Thus, their compli months in segregation despite his repeated, lets, showers, and urinals are located at one ance or noncompliance with these regula complaints stated an Eighth Amendment end of a dormitory and screened from view tions may establish actual knowledge or reck claim. At 227: "What Matthews presents here only by a wall ab~t four feet high containing less disregard." is not a case of the limited and short-term open entryways..~ison officials declined absence of some amenity.... Instead, when requests to prQ~de shower curtains or other DIS1RICT COURTS Matthews' allegations are taken at face value visual barriers. Two-hour periods were with reasonably favorable inferences...what scheduled in morning and evening when Law Libraries and Law Books/Verbal the case involves is a long-protracted depri opposite sex officers would not be present. Abuse. vation that was deliberately imposed on At 487: Martin v. Ezeagu, 816 F.Supp. 20 (D.D.C. someone confined in segregation and that The combined effect ofthe open 1993). An allegation that the law librarian made it impossible for him to bathe during dormitory and the open bathroom engaged in an "ongoing pattern of harass extended periods of time." The defendants area at the new jPRU is to put ment and arbitrary exclusion" of the plaintiff were not entitled to qualified immunity under inmates on display virtually 24 from the law library stated a claim for denial Wilson v. Seiter. hours a day no matter how personal of court access. The right "entails not only an activity they may be involved in. freedom to file pleadings but also freedom to Restraints A shower schedule that allows female employ, without retaliation or harassment, jones v. Thompson, 818 F.Supp. 1263 guards unrestricted access to the those accessories without which legal claims (S.D.Ind. 1993). The plaintiff tried to hang dormitory from 8:30 a.m. to 4:30 cannot be effectively asserted." (24, citing himself in jail. He was placed in "three-way p. m. means there is no opportunity Ruiz v. Estelle, 679 F.2d 1115, 1153 (5th restraints" (the court uses the term "hog for an inmate to change clothes dur Cir. 1982), cert. denied, 460 U.S 1042 tied") and left in a detox cell which had noth ing that time period or use the toilet (1983) (emphasis supplied». The require ing in it but an 18-inch bench which he could without the likelihood ofbeing seen ment of prejudice does not apply because the not mount in his restraints. He was stripped by a correctional officer ofthe oppo plaintiff "alleges not an isolated episode, but to the waist. He could not stand or sit, but site sex. Basic human dignity re an ongoing pattern of denial of access." (24) could only squat. He could not use the toilet; quires some minimalprotection of Allegations of "an extensive period of instead he used the drain in the floor while privacy, at least from the opposite harassment, including racial epithets and he was lying down. He was not permitted to sex andparticularly where no secu profanity," implicating a constitutional right, shower or change clothes. He was subjected rity concerns have been advanced to stated a claim for intentional infliction of to these conditions for about a week. He justify the design chosen. emotional distress. This tort requires" 'ex received no medical evaluation for five days. Under the Turner standard, these condi treme and outrageous conduct' which 'inten This treatment was not reasonably related tions are unconstitutional. The state provided tionally or recklessly causes severe distress' to a legitimate goal or interest and was there no reason for them; the predecessor institu and is 'so outrageous in character, and so fore punishment. At 1268: "This was nothing tion had an enclosed bathroom with doors extreme in degree, as to go beyond all possi short of flagrant governmental abuse which is and shower curtains, and no evidence was ble bounds of decency.'" (26, citingjackson decried by the Due Process Clause." presented that security problems resulted. v. District ofColumbia, 412 A.2d 948, 956 Punitive damages of $2,000 are assessed There is no alternative way for prisoners to 57 (D.C.App. 1980).) against the captain, "whose authority, pres exercise their right to privacy in the bath .. ence and knowledge of the continuing reten room. Since there is no record of security Medical Care/AIDS tion of Jones day after day without a systemat problems, it is unlikely that there will be an Haitian Centers Council, Inc. v. Sale, 817 ic or humane response to his condition effect on guards' performance of their duties. F.Supp. 336 (E.D.N.Y. 1993). The government demonstrates her complete callousness to The impact of change on prison resources conceded that adequate medical care was not that condition." (1268) The court notes in would be minimal, since shower curtains or being and could not be provided for connection with the deterrent purpose of this semi-opaque plastic sliding windows could "screened-in" Haitians held on Guantanamo award that the hog-tying procedure is still in be installed "with a de minimis cost to with diminished T-cell counts and that its own use in the jail. prison security and relatively little cost in doctors had recommended that these persons The plaintiff's treatment was caused by two terms of dollars." (487) be evacuated to receive appropriate care. In county policymakers, the captain and the the exercise of its "inherent power to protect sheriff, and by "the custom and practice to Law Libraries and Law Books/ the parties appearing before it, to preserve apply restraints without medical consultation Non-English Languages the integrity of an action, to maintain its abili and keep them on for extended and undocu Acevedo v. Forcinito, 820 F.Supp. 856 ty to render a final judgment, and to insure mented periods without review. The practice (D.N.]. 1993). At 888: the administration of justice," not to mention may be infrequently invoked, but is nonethe ... This court agrees thatfor prisoners "to prevent any loss of life or the diminution less barbaric." (1269) Deputies were trained who cannot read or understand English, of the plaintiff class" during the litigation, the on how to apply restraints but not on when to the constitutional right ofaccess to the 18 JULY 1993 THE NATIONAL PRISON PROJECT JOURNAL courts cannot be determined solely by cies that have been remedied (499-500), relief in the case except for the quality the number ofvolumes in, or size of, a including the use of health care staff to over assurance monitoring requirement and a law library. " see security, housing inmates in the medical permanent injunction against housing ** * facility who do not meet the admissions cri inmates in the State Penitentiary. At 503: ... It would be wholly contrary to the teria, the lack of 24-hour emergency cover "... [T] he Court's extended experience with spirit andpurpose ofBounds to con age, and the use of inmates to deliver mede this litigation convinces the Court that the clude that the provision ofa law library ical services. There remains one "glaring :t defendants have the commitment, operating afforded [] protection for prisoners deficiency," the absence of a quality assuF:'; structure and skills necessary to continue who cannot understand the language in ance plan, which the court views as "indis~ operating the prison system in accordance which the books are written.... Clearly, pensable and not unduly intrusive in reJ,Iledy with constitutional requirements." At 503 Bounds requires some form ofassis ing the systemic deficiency." (500) The;: n.4: The court vacates all population limit tance to those for whom even the most court retains jurisdiction on this issue,:, orders and declines to impose any perma comprehensive law library is ofno accepts the defendants' plan, and requires a nent populati~n caps. "If the past, present avail." one-year period of self-monitoring and and future officials of the State of Tennessee The fact that the plaintiff filed a complaint reporting with reports furnished to plaintiffs' have not learned a Three Hundred Million and the magistrate denied the appointment counsel. Dollar ($300,000,000) plus lesson in this of counsel do not show that the plaintiff had With respect to violence, which was litigation, then further instruction is hope adequate access to court. If this argument caused in large part by overcrowding, the less, and the solution will have to be left to were accepted, courts could never reach the defendants have taken sufficient action in another day and another lawsuit." • merits of a court access claim. terms of providing new space, new parole policies, and new sentencing legislation, and John Boston is the director ofthe Prisoners' Judicial Disengagement contracting with local governments and Rights Project, LegalAid Society ofNew Grubbs v. Bradley, 821 F.Supp. 496 development of community corrections. York. He regularly contributes this column (M.D.Tenn. 1993). The court finds that the They have also remedied the deficiencies in to the NPPJOURNAL. defendants have cured the constitutional academic and vocational programs and violations previously found in the state added inmate job programs in order to prison system in the areas of housing condi reduce idleness. (50l) tions, sanitation, food service, personal The defendants have complied with the safety, exercise for segregation inmates, and requirement to close the Tennessee State classification. Penitentiary and to implement a computer With respect to health care, the constitu system, apparently for tracking inmates. tional violation is found to have been mostly The court vacates and dissolves all out remedied. The court cites specific deficien- standing remedial orders and injunctive THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993/94 19 BLACK PRISONERS • con'tfrom pg. 2 institutional structure of urban communi ry, economics, politics, and belief systems ties. Like schools, welfare departments, designed to build self-esteem, enhance other former Panthers at Attica were and employment services that supposedly self-confidence, and encourage construc transferred to Green Haven Correctional serve "ghetto" communities, they are often tive social attitudes. Facility north of New York City. There they accomplices in the destruction of families PAC members and their supporters are met Larry White, a self-empowerment and individuals within these communities. lobbying the state legislature for reforms visionary. His ideas reflected those devel The failure of these institutions, along with that would change the roles and responsi oping among Black Americans: that they racism, produce "crime-generative" atti- ,".; bilities of prisoners. For example, they must now seriously attend to the unfin tudes among urban youth and lead to neg-;. have proposed legislation that would ished struggle for Black liberation, free ative values, feelings of alienation, crime'. . require prisoners to train for community dom, and the self-determination of all poverty, violence, drugs, and death. ' service in prison and perform specific Black people. The Non-traditional Approach forms ," housing, education, or crime-prevention the basis of a movement that is not only" duties as a con4ition of parole. These and Self-determination-the non becoming influential among prisoners but other ideas wE;.J.;e presented at a state leg traditional approach to is also beginning to catch the serious islative hearin.~by Eddie Ellis, one of the empowerment attention of state legislators, government early "think-tank" members now on work Many of the activist Black and Latino officials, prisoner advocacy groups, mem release in Harlem. Anumber of his pro prisoners placed in Green Haven "to keep bers of Black and Latino communities, posals are now under serious considera them busy and out of trouble" were intel and even European penologists. tion by legislators. ligent and committed to the new struggle. Although this socioeconomic perspec Eddie Ellis and other "think-tank" They qUickly took advantage of new tive is not entirely new, it represents a sig members are now back in their home prison programs that offered college nificant change in our approach towards communities. In Harlem they have orga degree courses. Anumber graduated prisoners and community crime-preven nized a community-based agency, the from the masters degree program offered tion efforts. It redefines the role of pris Community Justice Center, to carry out the by New York Theological Seminary. They ons and proposes solutions, including program of community involvement that led in forming a prisoner "think tank" to effective prison programs, that occur they began in prison. They work actively explore the nature and causes of minority within a community context. to shepherd young Black and Latino youth oppression and imprisonment in this Prisons are dysfunctional. They do not into constructive work that improves their country, focusing on New York State; they protect the community, and they still own lives and their communities. They are . were aided by community activists and operate in much the way they did during also working to empower poor neighbor intellectuals. Out of this mix of political the early part of the 20th century when hoods through community-specific eco activists, prisoners, and scholars came most prisoners were first- or second-gen nomic development projects and cultural new analyses and innovative proposals to eration European immigrants. Thus pris ly enriching programs. address painful social problems that ons, still dominated by white administra Larry White, one of the chief architects many of them knew first-hand. tors and staff, ignore the change in prison of the Non-traditional Approach, is still As soon as prison administrators caught demographics that has taken place over incarcerated in Green Haven Correctional on to the new prisoner movement, they the past 25 years. Furthermore, the crimi Facility. He is proud to see the products qUickly dispersed the participants to other nal justice system as a whole has failed to of his work taking root in the community. prisons. But it was too late. Wherever they address the criminogenic factors identi From Green Haven, he writes: went, similar "think tanks" were devel fied by Blacks and Latinos. "Rather than The Non-traditional approach to oped, with Auburn Prison, in upstate New change the socioeconomic conditions of criminal and socialjustice is really York, becoming the second most influen communities that generate crime, the sys about the relationship between social tial intellectual center. tem prefers to deal with individuals and justice and criminaljustice....Social During a 12-year period of research, ignores the very structural circumstances justice is a measure ofhowfair and Green Haven prisoners looked at New that produced their imprisonment in the eqUitably the system operatesfor all York's disproportionate incarceration of first instance."15 the people within itsjurisdiction. The minorities, a prison system in which 85% Determined to make prison policies Non-traditional approach employs a of the prisoners "are African American or and programs more effective and relevant holisticperspective in the analysis of Latino. They found that 75% of minority to communities of color, Green Haven crime and delinquency. It holds that prisoners come from only seven neigh prisoners under the umbrella prison at bottom criminaljustice is an borhoods in New York City to which 95% organization, the Political Action aspect ofsocialjustice. While it may of them return. Most of the remaining Committee (PAC), have developed model be an extreme to hold that all crime is 25% of prisoners come from the other programs that teach prisoners individual a result ofthe experience ofsocial five major urban communities in the state. and civic responsibilities. One of these, injustice, there should be no doubt Those findings led to the development of "The Resurrection Study Group," uses a that social injustice is a crime gener what prisoners call "the Non-traditional prisoner-developed curriculum in study ativefactor. Therefore the task of Approach" to crimillal and social justice. groups throughout the prison system to criminaljustice requires not only The Approach is an "analysis of the psy prepare Mrican Americans and Latinos effort directed toward changing the cho-cultural, socioeconomic, and histori for their return to their old neighbor individual offender, which has been cal patterns that affect imprisonment hoods. Once released, they are expected itsprimaryfOCUS, but mobilization rates." 14 It describes the "direct relation to educate and organize young people and change ofthe community and its ship" between prisons and communities of before they too get into trouble with the institutions. 16 color: although located in rural areas, criminal justice system. To prepare, pris The non-traditional approach works to prisons are still part of the dysfunctional oners are taught Mrocentric values, histo- empower prisoners, the prison, and com- 20 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL .munities to work towards such change together. At the outset there must be a reassessment of the criminal justice sys "Dear Prison Project..." tem to determine the needs of a prison "Dear Prison Project..." certain facts and their admissions population that is demographically differ What is discovery, and what discovery become binding on the party. ent from that of an earlier period. There can a prisoner do? Of course, each of these tools of dis must also be a reassessment of how cur Dubious About Discoyery covery are governed by the Rules of Civil ricula and programs can be structured to Procedure and those rules should be meet those needs. At a minimum, pro Dear Dubious: ·0' read carefully to determine the specific grams need to be directly related to com Discovery is a method to "discov~r;' or requirements of each. Additionally, these munities from which prisoners come and find documents and relevant information requests may be objected to by the be appropriately Afrocentric or in order to present the court withtbe evi opposing party and therefore you should Latinocentric. dence you need to prove your case. An know exactlY'~why each request or inter Led by Black and Latino prisoners, this other purpose of discovery is to find out rogatory is itPportant to your case in new response to minority oppression is your opponent's arguments and evidence. order to cPllhter defendant's objections not only based on a strong commitment to Rules 26 through 37 of the Federal Rules and/or to compel their production if self-empowerment, but is enriched and of Civil Procedure address discovery. defendants refuse to give you the infor strengthened by an appreciation of the Before you begin the discovery process, mation. If the opposing party refuses to long history of Black protest. The "Non make a list of each issue or claim in your give you a requested item, you may have traditional Approach" promises to case, the individual elements of each to file a motion to compel, (Fed. R. Civ. become a powerful influence in prisons issue, and what information or docu Pro. 37 (a» and go to court to force and urban communities across the coun- ments you will need to prove each ele them to give you the item. .try suffering from racism, poverty, and the ment. Additionally, .consider what de Following are general tips for conduct surrender of too many of their young to fenses the opposing party may raise, and ing discovery to insure that the process the nation's ineffective prison system. • what information you will need to defeat runs smoothly: them .• Also consider using tlIe resources (I)Be as clear as possible in describ Alice Green is the Executive Director of already available to you. Interview prison ing what you are looking for. Give as the Centerfor Law &Justice, Inc., in ers and helpful prison employee witness details as you can, and spell out exactly Albany, New York. es, have them signtheirstatements, and what you want. Ifpossible, describe the have the statements notarized or swornto documents in terms used by the party according to 28 U.S.C.§1746. Determine fr0lllwhom you are requesting the docu 1 Marc Mauer, Young Black Men and the Criminal ifyour state has afreedom of infonnation ments(Le., Grievance Reportregarding Justice System. Washington, D.C.: The Sentencing act or public records act. Ifso, you.can ]une23, 1993 assault on inmate Tom Project (February 1990). request policy directives,regulation man Smith). The more specific your request, 2 W.E.B. DuBois, The Souls ofB/ack Folk. New York: Bantam Books (1989). uals, and other relevantinformation the more difficult it will be for the oppos 3 Charshee C.L. McIntyre, Criminalizing ARace tllrough the act. Use thegrievanceproce ingpartytodaim they do not know what Free Blacks During Slavery. Queens: Kayode dure to request information(Le.,whyyou you arelookingJor. Ifyou think there may Publications, Ltd. (1992). have not yet received recomlUendedmed beotherrelevantmaterials, but do not 4 Christopher Adamson, "Punishment After SlavelY: ical surgery?). Also, ask friendsandfami know how to focus your request, make a Southern State Penal Systems, 1865-1890." Social ly to write prison officials witlrsimilar general requestandadd specific requests Problems, Vol. 30, No.5 (June 1983) (pp.555 569). questions (I.e., why was Danieljones to define the general request. 5 Manning Marable, How Capitalism transferred?). This information \vill help (2) Establish pliorities. Determine Underdeveloped Black America. Boston: South End focus your case, and perhaps give you an what information is most importantto Press (1983). indication of where you might find other our case and what information will be 6 James B. Jacobs, New Perspective's on Prisons helpful information. the easiest to obtain. You may want to and Imprisonment. Cornell University Press The primary devices used in the dis conduct discovery in stages, always (1983). covery process are interrogatories, re remaining within the court-determined 7 August Meie'1" and Elliot Rudwick, From Plantation to Ghetto. New York: Hill and Wang quests for production of documents, and deadlines. By requesting information in (1976). requests for admissions. stages you may get the easily accessible 8 Eldridge Cleaver, Soul on Ice. New York: Delta Interrogatories are written questions information without having the opposing Books (1968). submittedtotheopposing party for an party delay the request as a result of the 9 See note 5 above. answer. They are most useful for obtain.. more difficult items. 10 John Pallas and Bob Barber, "From Riot to ingthe names and locations of people (3) Be reasonable. Do not request Revolution." Issues in Criminology, Vo1.7, NO.2 (Fall 1972). with information about the case and for items just to aggravate or burden the 11 Robert Chrisman, "Black Prisoners, White Law." determining the existence and location opposing party. Rule 26(g) of the Federal The Black Scholar. April-May (1971) (pp.44-46). of documents. Requests for production Rules of Civil Procedure prohibits such a 12 Angela V. Davis, IfThey Come in the Morning. of documents allow for the inspection practice, and allows a judge to impose New York: The New American Library (1971). and copying of documents which are in sanctions for such action. Ifthe opposing 13 See note 11 above the custody or control of the defendant party asks for an extension, consider 14 Attica: The Official Report ofthe New York State Special Commission onAttica. New York: and which may be relevant to your case. grantingitas long as you are not in an Bantam Books (1972). Requests for admissions ask the oppos emergency situation and the extension 15 Community Justice Center. Harlem (1993). ing party to admit or deny the truth of reasonable length of time (I.e., 30 16 Larry White, (unpublished letter to Alice Green, July 13, 1993.) THE NATIONAL PRISON PROJEG JOURNAL WINTER 1993/94 21 thousands of AIDS orphans in another panel. Many women worked on pieces of the group panels iill their living units, and the Women Unite to whole pr-ison became conscious that the/AIDS Quilt was going to be Provide Education displayed at the prison. More women became involved and and Support decided to make individual panels for family members or friends who had died. Finally, our display dedi eer education programs led by cated two new large (12' X12') women prisoners have revolution panels, and nine small (3' X6') Pized HIV/AIDS education for prison panels to be added to the ers. Women from two of these programs Members of the Shawnee AIDS Awareness International Quilt. speak here about the impact their pro Group at FCI-Marianna. From left to right: On August 28 and 29, 1993, the Silvia Baraldini, Linda Oliver, Valeria Vistoli, jects have had on prisoners, staff and the Susan Rosenberg, Laura Whitehorn, Andrietta Quilt was displayed at FCI-Dublin outside community: Britton, Linda Pea. the first major display organized entirely by women-with thanks and Shawnee AIDS Unit women and the development of an orien credit to the facilitation and support of staff FCI-Marianna, Florida tation packet. sponsor Mark Lewellyn and Dr. Maisonet. In For the last two-and-half-years, women addition to the total of three large panels, imprisoned at the High Security Unit in PLACE-FCI-Dublin, California the NAMES Project brought in 40 more pan Marianna, Florida have been working to At FCI-Dublin, a federal prison housing els which were hung on the walls and dis combat the AIDS epidemic. An informal 1,000 women, an inmates' club is trying played on the floor of the Recreation Barn. group began after the arrival of a woman to change attitudes about AIDS in prison. Over 80 women worked as volunteers dur who had been a peer counselor at the PLACE (Pleasanton AIDS Counseling and ing the weekend, participating in the Washington, D.C. Jail, and has since tried to Education) was founded in 1991 to pro Unfolding Ceremonies, providing comfort educate to defeat widespread ignorance vide AIDS education to the population for people viewing the quilts, answering and fear, and to create a supportive envi and to give support to the women who questions about AIDS, translating, and pro ronment for women who are HIV positive. are HIV positive, or who have HIV-posi viding music. During the weekend at least In April 1993, the informal group coa tive loved ones. We have produced a 700 women prisoners and numerous staff lesced into the Shawnee AIDS Awareness poster in Spanish and English for display viewed the Quilt, definitely increasing AIDS Group, sponsored by the Psychology throughout the prison, and prepared a awareness. Department. We held an "AIDS Fair," made questionnaire about AIDS and risky Women in prison are very concerned a panel for the AIDS Memorial Quilt, behavior to give to every prisoner. Group with continuing to have meaningful rela became certified Red Cross AIDS instruc members include many women who have tionships with our children, including tors and raised Q.ver $3,500 for the local lost family members and beloved friends educating them about AIDS. PLACE has a area AIDS organization by holding a to AIDS, and some women who are HIV booth at the annual Children's DaylFamily walkathon. The AIDS Awareness Class, an positive themselves. Membership is all Day, where we distribute teen-oriented lit eight-week course offered three times a inclusive, and crosses the racial, age, erature, show safer-sex rap videos, and year, is our most important ongoing pro national, and sexual-preference differ answer questions. PLACE plans to contin ject. Besides educating women about the ences that are so especially divisive in ue the program by adopting the HIV ward virus, routes of transmission, and their prison. Meetings and presentations are at the Oakland Children's Hospital. rights as prisoners, the class focuses on conducted in both English and Spanish Women will make holiday and birthday prevention and changing high risk behavior. because Spanish is the primary language cards, and with donated materials, will For Hispanic Heritage Month the group did for 40% of the women. make blankets, clothes, and stuffed toys a presentation in Spanish, hoping to attract This last year, a major project has been for the children. This "adoption" process more interest from the Latina community. constructing panels for the International has already opened our hearts to the chil Real strides have been made since the Memorial AIDS Quilt. Because many of us dren and their families, and increased the beginning of the project, but the group know women who have died of AIDS in urgency we feel about educating ourselves has been unable to change the level of prison, or who suffer being HIV-positive and our communities about AIDS. • medical care provided to HIV-positive inside, we wanted to make a panel women. This is now the overriding con remembering women prisoners who have Jackie Walker is the Project's AIDS cern, along with the children of the died of AIDS. We wanted to remember the information coordinator. 22 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL blications Bibliography of Material on AIDS in Prisons: The Facts ---'--- Women in Prison , _---'---_ for Inmates and Officers is lists information on this subject a simply written educational tool available from the National·Erison for prisoners, corrections staff, Project and other sources art!! AIDS service providers. The concerning health care, drug bqbklet answers in an easy-to- treatment, incarcerated mothers, read format commonly asked juveniles, legislation, parole, the questions concerning the death penalty, sex discrimination, meaning of AIDS, the medical race and more. 35 pages. $5 treatment available, legal rights prepaid from NPP. and responsibilities. Also available in Spanish. Sample _.--1-_ TB: The Facts for Inmates copies free. Bulk orders: 100 and Officers answers copies/$25. 500 copies/$100. commonly-asked questions about 1,000 copies/$150 prepaid. tuberculosis (TB) in a simple The National Prison question-and-answer format. (order ACLU Handbook, The ProjectJOURNAL, $30/yr. Discusses what tuberculosis is, from Rights of Prisoners. Guide to $21yr. to prisoners. how it is contracted, its symp ACLU) the legal rights of prisoners, toms, treatment and how HIV parolees, pre-trial detainees, etc., The Prisoners' Assistance infection affects TB. Single copies in question-and-answer form. • Directory, the result of a free. Bulk orders: 100 copies/ Contains citations. $7.95; $5 for national survey, identifies and $25.500 copies/$100. prisoners. ACLU Dept. L, P.O. Box describes various organizations and 1,000 copies/$150 prepaid. QTY. COST 794, Medford, NY 11763. agencies that provide assistance to prisoners. Lists national, state, and local organizations and 1990 AIDS in Prison sources of assistance including Bibliography lists resources legal, AIDS, family support, and on AIDS in prison that are ex-offender aid. 10th Edition, pub available from the National Prison lishedJanuary 1993. Paperback, Project and other sources, $30 prepaid from NPP. including corrections policies on AIDS, educational materials, The National Prison Project medical and legal articles, and ----'---- Statns Report lists by state recent AIDS studies. $5 prepaid those presently under court order, from NPP. or those which have pending litigation either involving the entire state prison system or major institutions within the state. Lists cases which deal with overcrowding and/or the total conditions of confinement. (No jails except District of Columbia.) Updated January 1994. $5 prepaid QTY. COST from NPP. Fill out and send with check payable to: Name _ The National Prison Project Address _ 1875 Connecticut Ave., NW #410 Washington, D.C. 20009 City, State, ZIP _ THE NATIONAL PRISON PROJECT JOURNAL oaOBER 1993 23 he following are major develop the parties are scheduled to try sanitation 4, 1993, the Sixth Circuit issued an order ments in the National Prison Proj and physical plant issues, and then medical . dismissing some of the defendants' Tect's litigation program since Sep and mental health issues. The judge has " appeals. The defendants then filed their tember 15, 1993. Further details of any of postponed the resumption of the trial until: brief on the merits. The plaintiffs' brief the listed cases may be obtained by writing March 1 to allow the parties to conduct ' will be filed onJ~uary 30,1994. In addi the Project. negotiations towards a possible settlement. tion, the defendl!:.Q\ts have filed an appeal Farmer v. Brennan-The Supreme Goldsmith v. Dean-In December from the order ilwarding plaintiffs their Court of the United States appointed the 1993, after negotiations with the State of attorneys' fees. " National Prison Project to represent the Vermont broke down, the National Prison John A. v. Castle-The suit filed in plaintiff. Farmer, a pre-operative trans Project filed a class action suit in the fed 1990 challenged conditions of confine sexual, was raped within days of her eral court on behalf of all Vermont pris ment at the Ferris School and Bridge transfer to U.S.P.-Terre Haute. Following oners. In addition to challenging the House for Delaware juveniles who have Seventh Circuit precedent, the trial court denial of adequate medical and mental been charged with offenses or committed granted defendants summary judgment health care, intolerable environmental to state custody following adjudication. In after they alleged a lack of actual knowl health hazards, and other conditions of January 1994, following extensive negotia edge of the danger to petitioner. The confinement under the Eighth Amendment tions, the parties arrived at a detailed set judge refused to allow the plaintiff to con and the Americans with Disabilities Act, tlement agreement addressing all major duct discovery to determine if defendants the Complaint challenges extraordinarily allegations of the complaint. The court has should have known of the risk, and the invasive behavior modification programs scheduled a hearing for March 14, 1994, Seventh Circuit summarily affirmed. The on various constitutional grounds. In one to determine whether the agreement Supreme Court granted certiorari on the of these, the Vermont Treatment Program should be approved. plaintiff's pro se petition on October 4, for Sexual Aggressors, prisoners are sub Lankford v. Racicot-Following an 1993. ject to mandatory masturbation sessions, investigation of conditions at the Montana The question before the Court is what to manipulation of their genitals by a State Penitentiary located at Deer Lodge, constitutes "deliberate indifference" to a device called the penile plethysmograph, and the withdrawal of a prior state laWSUit, prisoner's safety by correctional staff. We and to other degrading and humiliating the National Prison Project together with argue that it is sufficient proof of "deliber practices. local counsel filed a comprehensive law ate indifference" to show that staff knew, Hadix v. Johnson-In June 1992, the suit in December 1993. The suit alleges or should have known, of an unreason National Prison Project entered this case, inadequate medical, dental, and mental able risk if the risk was "obvious." The in which there is a long-standing consent health care; dangerous overcrowding, case was argued on January 12, 1994. decree that comprehensively addresses environmental and fire safety conditions; Austin v. Lehman-The first phase of conditions of confinement at the State arbitrary classification, treatment and the trial, involving issues of overcrowding, Prison of Southern Michigan. During good-time policies; and a degrading and lack of programs, and staff- and prisoner 1993, the court issued a number of humiliating sex offender program. The on-prisoner assaults began on December enforcement orders which the defendants Department of Justice has also announced 6, 1993. Following the corrections phase, appealed to the Sixth Circuit. On October its intention to file a CRIPA lawsuit. • National Prisbn Project Nonprofit Org. American Civil Liberties Union Foundation U.S. Postage 1875 Connecticut Ave., NW, #410 Washington, D.C. 20009 PAID Washington D.C. (202) 234-4830 Permit No. 5248 Printed on Recycled Paper 24 WINTER 1993/94 THE NATIONAL PRISON PROJECT JOURNAL