A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. VOL. 9, NO.3, SUMMER 1994 • ISSN 1"Q76-769X No EqualJustice Under the Law in India---or the u.s.

The following remarks were presented at the International Conference on Prisons and Punishment in New Delhi, India, March 3-5, 1994.

No Equal Justice am an advocate and, as such, my role is to challenge the complacency, I actions and inactions of my colleagues wherever I am. My purpose here is to make you feel and think deeply, not to offend you. I want to focus on what I believe is the most fundamental and seri­ ous problem in all of the criminal justice systems I know anything about, and that is ~ ..c unfairness and inequality. I will do that by 0- tt: talking primarily about the United States, ~ c... the system I know best. c... In both the United States and India, z much homage is paid to the idea of the Left to right: Professor Ravindeer Kumar, director of the Nehru Museum; Justice balance of the scales of justice-equality Krishna Iyer, former Chief Justice, Supreme Court of India; Alvin J. Bronstein, under the law. In the U.S., justice is sup­ executive director of the National Prison Project. posed to be "blind," meaning, of course, that all will receive equal treatment re­ means of controlling poor people (the dead-end jobs," who are filling the gardless of color, economic status, or underclass), people of color, and our prisons of Scotland; background. indigenous populations. We are not alone, • Duncan Chappell, an Australian crimi­ as the following examples suggest: nologist, has told us that aboriginals make up 1% of the general population • In Canada you will find the govern­ in Australia but over 14% of the prison ment uses the criminal justice system disproportionately against the native and aboriginal populations; • Tony Peters, the Belgian criminologist, Equal justice under the law is a myth has pointed out that while only 9% of and a lie. Unequal justice is the reality. I Belgium's total population is non­ know of no criminal justice system that Belgian, non-Belgians make up 37% of comes close to providing equal justice its prison population. He describes the under the law. Certainly not the criminal non-Belgians as primarily Moroccans, justice system in the United States and cer­ other and North Africans and Thrks; tainly not the system in India. all of them, not coincidentally, people Ifyou look closely, you will find the with dark skin; gross inequality that exists in the American • Peter McKinlay, the former head of the criminal justice system. Our criminal jus­ Scottish Prison Service, tells us that it tice and imprisonment systems are used is the poor underclass, "the lads from primarily and almost exclusively as a the public housing projects who face population. Indeed, looking at a one­ that ofthe [former] Soviet Union's. The serve ultimately the interest ofno month picture (August 1992), 28.6% USSR had been severely criticized by one at all, save perhaps the industry of all persons taken into police custody Western democratic nationsfor its policy that has grown up around it. were aboriginals; ofkeeping dissident citizens in Siberian The inescapable conclusion: pun­ • In India, there are three classes of and other labor camps but the United ~hmentcannotbeproportionaland prisons and offenders are sentenced to States was incarcerating in its prisons an therefore cannot be justified. a particular prison based upon their equivalent underclass ofblack and other/ Nils Christie has written extensively wealth, status and influence, not on dispossessed minority groups. ~ : about what he refers to as "the phenomena their criminal behavior. The point is, then, how can we talk of the economy of penal measures."3 He about models and values for the future of has argued that, for some people, prisons Today in the United States, we have about corrections without first addressing th\:l '. pay. "With private prisons we build into the one and one-half million people in our problems in our society? Or is it possible system a strong growth factor.,,4 This is no jails and prisons. Over 99% of them are that our society needs the poor, the people minor factor in the United States and our poor and 50% are people of color. One of color, the permanent underclass, in corrections "professionals" are part of the out of three black males between the ages order to sustain our criminal justice sys­ problem. of 20-29 in the State of California are in tems and our corrections systems? If we For example, at the American Correc­ prison or on parole or probation. In the acknowledge, as we must, that there is no tional Association's annual Congress last city of Baltimore, 50% of black males fairness and equality under and before the year, the conference program contained between the ages of 16-35 are in prison, law in the criminal justice systems of most 276 pages, 153 of which were devoted jail or on some form of restriction (bail, North American and Western European entirely to advertisements (new kinds of parole, community custody, etc.). In our countries, how can we participate in the razor wire, restraints, various services, the nation's capital the figure for that same age travesty known as criminal justice and cor­ group is 42%. rections? How can we sit around and dis­ (cont'd on page 17) Duncan Chappell, in a paper delivered to cuss the use of the private sector, what the 27th Australian Legal Convention, re­ works in conventional programs, correc­ 3 His latest book, which examines the economic called the discussion on these issues at an tional personnel and professionalism, the incentives behind prison growth, should be reqUired earlier symposium:! role of the media, standards and account­ reading for everyone in the criminal justice field. Crime Control as Industry: Towards Gulags, ability, and all the rest? Western Style?, University of Oslo Press, (1993). 4 Nils Christie, The Eye ofGod, Ottawa, (1991). The Correctional-Industrial Complex The Canadian sociologist and former criminal justice and corrections official, Lorraine Berzins, recently challenged the entire concept of punishment under con­ temporary criminal justice systems: 2 An overwhelming body offindings from the fields ofsocial and modern Editor: Jan Elvin physical sciences has shown that the Editorial Asst.: Jenni Gainsborough The United States prison crisis promp­ imbalance ofpower and wealth in Regular Contributors: John Boston, ted some sharp exchanges between our society has led to inequities. Russ Immarigeon North American and European partici­ These inequities have been rational­ Alvin J. Bronstein, Executive Director The National Prison Project of the pants at the Ottawa symposium. Like ized by those who have the power to American Civil Liberties Union Foundation their North American counterparts the produce our ideological theories­ 1875 Connecticut Ave., NW, #410 Europeans have experienced significant theories that define what is "right. " Washington, DC 20009 increases in the number ofoffenders Within eXisting social contexts, (202) 234-4830 FAX (202) 234-4890

being dealt with by their criminaljus­ many people are left at the mercy of The Natianal Prison Project is a tax-exempt foundatian­ tice systems...,.. the social ethic ofthe dominant funded proiect of the AClU Foundation which seeks to The true sentencing dichotomy revealed group-those with the power to de­ strengthen and protect the rights of adult and iuvenile offenders; to improve overall conditions in correctional at the Ottawa symposium among North fine for everyone which interests are facilities by using existing administrative, legislative and American and European participants was valuable, whose interests are valu­ iudicial channels; and to develop alternatives to incarceration. in reality an ideological split between the able, and what rights are valuable. The reprinting ofJOURNAL material is encouraged with two continents regarding the severity of Degrees of"blameworthiness" be­ the stipulation that the National Prison Project JOURNAL punishment to be imposed upon off­ come very difficult to judge given the be credited with the reprint, and that a copy of the reprint be sent to the editor. enders. Speaking about this issue at the imbalance ofpower and wealth. The JOURNAL is scheduled for publication quarterly by Symposium, the distinguished Norwegian Assigningproportional ratings is not the National Prison Project. Materials and suggestions criminologist, Nils Christie, sparked the possible and the end result is the jus­ are welcome. wrath ofmany ofthe United States par­ tification ofthe oppression ofone ticipants by suggesting that their ideolog­ group by another.... ical views hadproduced apunishment The high collateral costs ofthis out­ The NPP JOURNAL is available on 16mm system which was not so dissimilarfrom come, both financial and human, microfilm, 35mm microfilm and 105mm microfiche from University Microfilms

1 Professor Duncan Chappell, Sentencing of 2 Lorraine Berzins, Is Legal Punishment Right? The International, 300 North Zeeb Rd., Ann Offenders: A Consideration ofthe Issues of Answer is No., NPP JOURNAL, Vol. 8, No.2, (Spring Arbor, MI 48106-1346. Severity, Consistency and Cost, Adelaide, (1991). 1993), pp. 17, 18.

2 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL Agreement Reached in Rhode Island Prison Case After 17 Years

The follow n 1974 a Rhode Island prisoner length an named Nicholas Palmigiano filed suit I in federal court claiming that condi­ • Out of the original. tions in the Adult Correctional Institutions and one (Palmigian (AC!) violated the Constitution's ban gram after testifying against cruel and unusual punishment. The case finally started to wind down in March • The entire pre-trial . ~ of trial was under 70 of this year-20 years after it began-with II the signing of an agreement which fol­ • In 1977, fourfacilifi .~ lowed nearly three years of negotiations. en's." Now Rhode IS1 "medium," "sped en's," "women's are more people the entire prison sy • Bronstein recalls tha now there are three; • This case has seen fou directors, and a tot .. Attorney General's 0 Palmigiano v. Sundlun! has a lengthy Department of Co and complex history. After an extended trial • Plaintiffs have b in 1977, evidence presented by plaintiffs' lawyers from lawyers from the National Prison Project of Bronstein. St the American Civil Liberties Union Founda­ tion convinced U.S. District Court Judge RaymondJ. Pettine to declare the entire Rhode Island prison system unconstitution- al. Over the course of the next 15 years, the years, the court found that most of the court found it necessary to resort to various problems were attributable to overcrowd­ coercive measures, including modifying I Bruce Sundlun is !he curren! governor of Rhode ing: in every instance, the court found that Island and has inheri!ed !he role of lead defendant. orders, sanctions, and contempt citations in overcrowding had a serious deleterious The case has a! various limes been called Palmi­ attempts to force the state to meet its oblig­ impact on medical care and environmental giano v. Noel, Garrahy, and DiPrete. ations under the Constitution. During those health and safety. On January 10, 1991, Judge Pettine, who had presided over the case from its incep­ tion and is now on senior status, held a conference in chambers with all the parties on the occasion of transferring the case to U.S. District Judge Ronald R. Lagueux. In his final order, Judge Pettine urged the par­ ties, "Now is the time to institute safe­ guards that will forestall and hopefully pre­ vent a recurrence of the past frustrating, costly and devastating ills." The parties have had a series of meetings over the past three years. Negotiations to reach the new agreement proceeded from the parties' shared belief that existing com­ pliance problems could best be resolved by revising the compliance and monitoring process to make it more efficient, and by setting permanent population limits. The agreement includes strong measures to control future overcrowding and to guarantee proper prisoner care and it applies to existing as well as newly ac­ A 1985 photo of prisoners housed in storage space-a practice prohibited qUired facilities. It states that" [a] reas not under the new agreement. . designed and built for housing prisoners

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 3 shall not be utilized for the housing of prisoners. For example, prisoners shall not be housed in corridors, dayrooms, program space, office space, recreation space or general purpose space." It also prohibits double-ceiling in certain facili­ ties and limits its use in others. Governor Sundlun signed an Executive Order in 1992 creating a Governor's Com­ mission to Avoid Future Prison Overcrowd­ ing and Terminate Federal Court Super­ vision Over the ACI. The Commission was charged with developing an action plan, including legislation and policy initiatives, for dealing with the state's prison popula­ tion. On February 15, 1993 the Commis­ sion issued a detailed report setting forth new approaches for the Rhode Island criminal justice system and recommending certain legislation. The Rhode Island Gene­ ral Assembly thereafter enacted legislation "Old Max," the building where maximum security prisoners are housed, providing for intermediate sanctions, and a has been extensively renovated. .Roberta Richman - changing women's lives mong the many changes that have taken place at the ACI There they could receive help in a co since the lawsuit began, some of the most marked have as long as they needed it and then m been at the Women's facilities where Roberta Richman own on the outside-knowing that became warden in June of 1991. Ms. Richman took an unusual when life became too threatening or career path to this job, beginning with a Master's degree in Fine temporarily to the more sheltered co Arts, becoming an art teacher in prisons, running educational rent political climate makes such a r and vocational services and then prison industries for all of ACI next best thing, according to Ms. Ric before being appointed as warden by Director George Vose. caring groups in the community who As warden, Ms. Richman has a very clear vision of what she prison so that when they leave they wants for the women in her care, tempered by a realistic view system in place. At the same time co of the limited resources available and the constraints of the sys­ pares the women to deal with the pre tem within which she operates. At the outset, she set herself face - groups meet to deal with issu three goals: domestic violence, and parenting. Co 1) to create a humane and safe institution environment con­ and children are encouraged with ext ducive to treatment and rehabilitation; informal setting of the recently create 2) to prepare women for transition back into the community Center. An intensive drug treatment by providing sufficient educational, counseling and treat­ ed- 90 days in duration, holistic i ment opportunities; tured and restrictive-to be follow 3) to build partnerships with existing community agencies by work release or home confinement allowing them access to the incarcerated women and responsible living after release. HIV sharing J;.esponsibility for their continued treatment and training takes place in weekly grou support after release. . mature women are trained to act as She stresses that there are differences between the situations wing; a mentoring program matches a c of incarcerated women and men. Most of the women have com­ with a women six months before herrel mitted nonviolent crimes, have been victims of abuse all their ship continues as long as possible lives, have very limited life skills, and are mothers and primary grams are aimed at making long-ter care givers to young children. Their sentences are usually short, women face the world, giving them which means the time available to help them is limited. resources to deal with the potentially Resources must be concentrated on preparing them for transi­ they will face when they leave prison. I tion back into the community from the very first day they arrive. Richman is far too much of a realist to Six months, an average sentence length, is not enough time to She knows that much more is needed do more than begin the process. The easy part is restoring phys­ training for available, well-paying jobs ical well being, providing adequate nutrition, physical safety, economic independence and enable and detoxing from drugs and alcohol. The harder part is plan­ lies in the community. She knows she ning for continued care after they leave prison. but she is doing an impressive job in The ideal situation for most of these women, Ms. Richman is can, day-by-day, step-by-step, providin convinced, would be placement instead in a community home. that many of the women in her charge

4 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL Criminal Justice Oversight Committee that ulation controls, which will remain in oner must be out-of-cell at least 10 hours would permanently control the state's jail effect indefinitely. a day and have the opportunity for a wide and prison population. 2 Ifthe new population caps are exceeded, range of programs. The process for ending court supervi­ the Oversight Committee is empowered to The state now appears to realize that it sion of the ACI has three phases: first, release prisoners early or to speed up the cannot build its way out of its overcrowd­ conditions at the ACI will be monitored by parole process. Should the Committee fail ing problem. They recently closed their a team of independent experts (monitors) to act, attorneys from the Prison Project~' old Medium Security Facility (known as in medical services, environmental health may seek court intervention. Special Needs) and are converting it into a and safety, and inmate management and community reintegration facility. programs. Second, after a finding of sub­ Alvin J. Bronstein, lead counsel for the stantial compliance by the monitors, the prisoners and the executive director of the Department of Corrections (DOC) will ACLU National Prison Project, said of the report to the court and plaintiffs' counsel agreement, "The ACLU seeks to guarantee on its progress with compliance. (Reports that the state will achieve full compliance by monitors and by the DOC may be chal­ with its mandates for constitutional prison lenged by attorneys for the prisoners or conditions and procedures in the near for the Department.) Third, once the future and do so in a manner that avoids court finds continued substantial compli­ Only under certain specific conditions the protracted litigation of the last 17 ance with the new agreement, all of its and in certain facilities may prisoners be years. We believe that the population limits provisions will be vacated, except the pop- double-celled: double-celled prisoners and self-monitoring and reporting process must not be classified as maximum securi­ applied to the Department of Corrections

2 Rhode Island has a unified corrections system; ty; cells must adhere to the American Cor­ under the new agreement, will assure that the ACI has custody of pre-trial and sentenced rectional Association standards on space the progress that has been made in the prisoners. requirements; and any double-celled pris- Palmigiano case will continue." •

to offer a good tool for enforcing the rights NPP Hosts Litigation Conference of disabled prisoners but there is still ­ some uncertainty about how its provisions (Spear), and Rhode Island (Palmigiano) will be interpreted by the courts. cases, and the implications for consent The expense of using experts for prison n May 19 and 20, the National decree modification of the Supreme Court's litigation, now that their costs are no Prison Project hosted a conference Rufo decision. Modification of agreements longer recoverable, prompted a debate on Oon prison litigation. The 20 attorneys was addressed further in a session on the ways to minimize that expense. While who attended, some of them special masters implications of the current crime bill. The there may be some ways to control costs, in prison cases, heard presentations and proposed Helms/Canady Amendments on it was generally felt that timely expert took part in discussions on a number of "Appropriate remedies with respect to tours are of such importance to the suc­ areas of current concern. John Boston of the prison crowding" includes a provision that cess of litigation that too much restriction Prisoners Rights Project of the New York court orders and consent decrees should be on their use would be counterproductive. Legal Aid Society talked about consent reopened for modification at a minimum of The best long-term hope is for legislation decree modification and termination issues, two-year intervals. The proposed amend­ to reverse the West Virginia Univ. v. drawing on his experiences in the long-run­ ments also attempt to limit the use of class Casey decision. ning New York City jails cases. There was action suits in Eighth Amendment cases AlvinJ. Bronstein, NPP director, who also discussion of the "exit scenarios" devel­ though there was a general sense that this chaired the conference, introduced the final oped in the New Mexico (Duran), Hawaii change would meet so much resistance from topiC-Public Advocacy on Criminal Justice judges, as well as litigators, that it was Policy Issues-with a question as to whether unlikely to stand. the attorneys felt it warranted much discus­ The conference also looked at alterna­ sion time. The answer to that question was tives to using the Eighth Amendment in liti­ made clear by the longest and liveliest debate gating prisoners' rights. Elizabeth Alex­ of the conference. The participants saw influ­ ander of the NPP introduced the session on encing public opinion as key to the long­ Statutory Causes of Action and talked about term changes they want in the current policy the Individuals with Disabilities Education of over-reliance on incarceration. Ifpublic Act as a means of bringing special educa­ advocacy is to be effective, we have to give tion to incarcerated juveniles. Randy Berg policy makers at the state and national level and Peter Siegel of the Florida Justice In­ viable alternatives to imprisonment that they stitute discussed litigation under the re­ can take to their electorate. Agreement on cently passed Restoration of Religious that principle was easily reached -discus­ Freedom Act, which has already been used sion on what those viable alternatives might successfully to challenge restrictions on be and how they could be "sold" to the pub­ NPP staH attorney Mohamedu Jones (left) talks with Jonathan Smith of the religious practices ofJews and follow­ lic, politicians, and policy makers was still D.C. Prisoners' Legal Services Project ers of the Santeria religion in prisons. The continuing without resolution when the con­ (right) between sessions. Americans with Disabilities Act also seems ference reached its scheduled close. •

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 5 ~. A PROJECT OF THE AMERICAN CIVIL L1BERTIe'S.UNION FOUNDATION, INC. VOL. 9, NO.3, SUMMER 1994· ISSN 1074,769X

not free to let the state ofnature take effect (and very likely the purpose) of curb­ Highlights ofMost its course.... [G] ratuitously allowing ing some extreme interpretations of the crim­ the beating or rape ofone prisoner by inal standard that have appeared in lower Important Cases another serves no "legitimate penologi­ court cases. cal objectiv[e], " ... any more than it The Court's approach to the question was squares with "evolving standards of not one of making law but one of scrupulous­ decency." ... ly applying its recent decisions, in particular 62 U.S.L.W. at 4448 (citations omitted). Wilson v. Seiter, 501 U.S. 294 (1991), and CRUEL AND UNUSUAL PUNISHMENT To establish an Eighth Amendment violation, Hellingv. McKinney, 113 S.Ct. 2475 (1993). For the fourth time in four years, the "the inmate must show that he is incarcerat­ The Court thought that it was compelled to Supreme Court has rendered a significant ed under conditions posing a substantial risk reject the objective civil law recklessness interpretation of the Eighth Amendment's of serious harm." Id. (The Court declined to standard by Wilson, which declined to base cruel and unusual punishments clause in a say when a risk becomes substantial, since Eighth Amendment liability purely on the prison conditions case. In Farmer v. the issue was not presented to it.) existence of objectively inhumane prison Brennan, 62 U.S. Law Week 4446 aune 6, conditions. Rather, Wilson held that the 1994), the Court vacated and remanded the Deliberate Indifference Redux Eighth Amendment embodies a "subjective" Seventh Circuit's summary dismissal of a fed­ From these familiar generalities, the Court requirement, also referred to as a "culpable eral prisoner's claim that prison officials proceeded to the technical issue at hand: the state of mind." The Farmer Court, in effect, failed to provide her with adequate protec­ definition of deliberate indifference, about declined the invitation to define the terms tion from violence by other inmates. For the which the federal appellate cases were in "subjective" and "state of mind" in a broad plaintiff, the decision provides another conflict. The appeals courts generally agreed and nonliteral fashion. chance at winning her case. For prison litiga­ that deliberate indifference is the equivalent In heWing to the line of Wilson v. Seiter, tors, Justice Souter's majority opinion is a of reckless disregard for risk-a view the the Court declined to follow its only previous decidedly mixed bag. . Farmer Court explicitly endorsed. However, attempt to give substance to the deliberate The plaintiff is a pre-operative transsexual some courts had held that prison officials indifference standard. In Canton v. Harris, who has been housed in male institutions may be found liable if they disregard risks 489 U.S. 378, 390 (1989), the Court held even though she "projects feminine charac­ that they "knew or should have known" that municipal liability for inadequate police teristics" and prefers to be referred to as about; this standard has been termed the training could be established "if the need for "she" or "her." (The Court carefully avoided "objective" or "civil law" standard of reck­ more or different training is so obvious, and applying any personal pronoun to her in its lessness. Other courts had held that prison the inadequacy so likely to result in the viola­ opinion.) She alleged that she was placed in officials may only be found liable if they dis­ tion of constitutional rights, that the policy­ the general population of the United States regard risks that they actually knew about; makers of the city can reasonably be said to Penitentiary at Tel're Haute, Indiana, where this definition of recklessness is generally have been deliberately indifferent to the she was beaten and raped. She further al­ applied in criminal law and has been termed need." The Farmer Court declined to apply leged that the defendants acted despite their a "subjective" standard. Canton's holding that liability can be based knowledge that the penitentiary had a violent For prisoner advocates, the bad news is on a risk's "obviousness" (or on constructive environment and a history of assaults and that the Court rejected the civil law standard notice, as Justice O'Connor had phrased it in that she would be particularly vulnerable to and adopted the criminal law standard. It her Canton concurrence), since such a stan­ sexual attack. stated, "We hold ...that a prison official can­ dard would be "hard to describe ...as any­ The Court did not dwell on these unusual not be found liable under the Eighth Amend­ thing but objective." 62 U.S.L.W. at 4450. facts but treated the case as invoking the ment for denying an inmate humane condi­ The Court observed that Canton's defini­ more general duty of prison officials to pro­ tions of confinement unless the official knows tion of deliberate indifference was an inter­ tect prisoners from assault by one another. of and disregards an excessive risk to inmate pretation of 42 U.S.C. §1983, a statute con­ The Court noted that it had assumed, and the health or safety; the official must both be taining no independent state of mind require­ lower courts have "uniformly held," that such aware of facts from which the inference ment. 62 U.S.L.W. at 4450. Canton itself had a duty exists. It stated: could be drawn that a substantial risk of seri­ noted that the standard it announced for ... [H]aving stripped [prisoners] of ous harm exists, and he must also draw the municipal liability did not turn on the stan­ virtually every means ofself-protection inference." 62 U.S.L.W. at 4449. The (rela­ dard governing the underlying constitutional andforeclosed their access to outside tively) good news is that the Court was care­ claim. 489 U.S. at 388 n.8. Canton therefore aid, the government and its officials are ful to limit the impact of its holding, with the does not govern the Court's interpretation of

6 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL the substantive requirements of the cruel and stantial risk of serious harm to prisoner prison officials must have had knowledge. unusual punishments clause. Smith?" The Court stated: However one views the Court's reasoning, The question under the Eighth its holding that there are now two deliberate Qualms and Qualifications Amendment is whether prison officials, indifference standards is likely to breed con­ Despite the Court's unfavorable holding, acting with deliberate indifference, fusion in the lower courts, especially since much of the majority opinion amounts to an exposed a prisoner to a sufficiently sub­ many cases will contain both kinds of delib­ exercise in damage limitation. { stantial "risk ofserious damage to his erate indifference claims-e.g., a claim by a The Court rejected the view that its holding future health, "...and it does not matter sentenced county jail prisoner that he or she would allow officials to disregard obvious:,!' whether the risk comes from a single was assaulted by other inmates as a result of dangers by cultivating ignorance of then.l. source or multiple sources, any more the deliberate indifference of line staff, and It stated: "Whether a prison official had-the than it matters whether aprisonerfaces as a result of a policy of deliberate indiffer­ requisite knowledge of a substalltial risk is a an excessive risk ofattack for reasons ence with respect to training or supervision question of fact subject to demonstration in personal t'eJ. him or because all prisoners on the part of the municipality. The prospect the usual ways, including inference from cir­ in his situation face such a risk. of instructing juries that deliberate indif­ cumstantial evidence ..., and a factfinder may 62 U.S.L.W.at 4451 (citation omitted). ference means one thing for one set of de­ conclude that a prison official knew of a sub­ This holding amounts to a broad ratifica­ fendants and something else for other defen­ stantial risk from the very fact that the risk tion of the body of case law finding prison dants will not be pleasing either to the trial was obvious." Id. at 4451. officials liable for violence resulting from judges who have to do it or to the appellate This is an odd sort of reasoning; in effect, generalized failures of prison administra­ panels who will have to sort out their mis­ it suggests that officials will not be tempted to tion-or, as the case law puts it, "systematic takes. take refuge in willful ignorance because of deficiencies in staffing, facilities or proce­ This problem is not limited to cases with the likelihood that factfinders will erroneous­ dures [that] make suffering inevitable...." municipal liability claims. Courts have often ly fail to give them the benefit of their igno­ Fisher v. Koehler, 692 F.Supp. 1519, 1561 used deliberate indifference as a standard for rance. However, the Court's statement should (S.D.N.Y. 1988), affd, 902 F.2d 2 (2nd Cir. individual supervisory liability in §1983 prove invaluable to prisoner plaintiffs for an 1990). Such deficiencies include the failure cases, regardless of the legal standard gov­ entirely different reason than the Court to classify and separate aggressive and vul­ erning the underlying constitutional claim. intended: it relieves them of the burden of nerable inmates, inadequate staff supervision, See, e.g., Gutierrez-Rodriguez v. Cartagena, going forward with direct evidence of prison overcrowding, the lack of reporting and 882 F.2d 553, 562 (1st Cir. 1989) (Fourth officials' state of mind. In other words, an investigating systems for threats and assaults, Amendment police shooting case); Stoneking obvious risk, without more, creates a triable and so forth. See, e.g., LaMarca v. Turner, v. BradfordArea School Dist., 882 F.2d 720, issue of fact. This point will be crucial at the 995 F.2d 1526 (1Ith Cir. 1993), cert. 725 (3rd Cir. 1989), cert. denied, 110 S.Ct. summary judgment stage in many cases­ denied, 114 S.Ct. 1189 (1994); Butler v. 840 (1990) (student sexual harassment com­ especially those involving pro se litigants, Dowd, 979 F.2d 661 (8th Cir. 1992); plaint under due process clause);]ones v. who may have evidence that a risk was obvi­ Redman v. County ofSan Diego, 942 F.2d City ofChicago , 856 F.2d 985,992-93 (7th ous, but lack the ability to conduct effective 1435, 1445, 1448 (9th Cir. 1991) (en Cir. 1988) (baseless arrest and criminal discovery of what prison officials knew. Since bane), cert. denied, 112 S.Ct. 972 (1992). prosecution); McCann v. Coughlin, 698 F.2d courts often withhold serious consideration The Court's acknowledgement that consti­ 112, 125 (2d Cir. 1983) (prisoner's proce­ of the appointment of counsel until after a tutionally significant risks to prisoners' safety dural due process claim). Questions of pro se case has survived a summary judgment may be found at different levels of generality supervisory liability, like those of municipal motion, the effect of this evidentiary pro­ may provide a fruitful approach to the "igno­ liability, are matters of statutory interpreta­ nouncement by the Court will be pivotal for rance is bliss" defense. Instead of asking tion arising from Congress's supposed rejec­ many litigants. "Did the warden know that prisoners were at tion of respondeat superior under §1983. Nonetheless, the Court's argument remains substantial risk of assault?" one might ask, See Monell v. New York City Dept. ofSocial unsatisfactory for its intended purpose of "Did the warden know that the failure of a Services, 436 u.s. 658, 691-93 (1978). Thus, refuting the "ignorance is bliss" argument. prison administration to monitor violence, or all Eighth Amendment cases in which prison­ Suppose a prison administration purposefully the failure to classify inmates, can itself cre­ ers sue bothJine staff who are directly in­ avoids knowledge of risks of violence in an ate or aggravate the risk of assault?" It may volved and supervisors who are alleged to be institution, e.g., by failing to maintain a sys­ be that prison officials' general knowledge of indirectly responsible will require juries to tem for reporting violent incidents and by the dynamics of prison life, and not just their apply two different deliberate indifference discouraging inmates from complaining and knowledge of conditions inside their own standards. staff from reporting incidents or threats to institutions' walls, may create a triable ques­ The best practical solution to this problem their supervisors. Can they still be held tion of deliberate indifference. may simply be to banish the conclusory terms liable? One appellate court has stated that "recklessness" and "deliberate indifference" "[g] oing out of your way to avoid acquiring Curbing the Seventh Circuit altogether, and frame jury instructions, as unwelcome knowledge is a species of intent" Prisoner advocates were concerned not well as the special verdict forms that seem sufficient to establish recklessness under the only with the disadvantages of the criminal increasingly necessary in civil rights litiga­ criminal law standard. McGill v. Duckworth, law standard but with the radically anti-pris­ tion, by using only the definitions of those 944 F.2d 344,351 (7th Cir. 1991), cert. oner gloss placed on it by the Seventh Circuit. terms. For example: "Do you find that de­ denied, 112 S.Ct. 365 (1992). The Farmer That court stated that prison officials may not fendantJones knew of and disregarded an opinion gives no evidence that the Court con­ be held liable unless they possess "actual excessive risk that prisoner Smith would be sidered this point. knowledge of impending harm easily pre­ assaulted?" Or: "Do you find that defendant The Court did, however, deal definitively ventable,"]ackson v. Duckworth, 955 F.2d Jones failed to act to protect prisoner Smith with one recurrent issue in prison violence 21, 22 (7th Cir. 1992) (emphasis in original, from assault despite his knowledge of a sub- litigation: the specificity of the threat of which citations omitted), and that they must be

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 7 shown to have exposed the plaintiff to a risk unreasonably disregarding an objectively opportunity to show that he or she is at risk "because of, rather than in spite of, the risk intolerable risk of harm, and that they will of "irreparable harm" supporting such pre­ to him." McGill v. Duckworth, 944 F.2d at continue to do so ... ". 62 U.S.L.W. at 4451­ liminary relief. See, e.g., Mitchell v. Cuomo, 350 (Easterbrook, J.) (emphasis in original), 52. However, it added in a footnote that if the 748 F.2d 804, 806 (2nd Cir. 1984) (Eighth citing PersonnelAdministrator v. Feeney, evidence supported the existence of an Amendment violations would constitute irre­ 442 U.S. 256, 279 (1979). The lack of appar­ "objectively intolerable risk of serious injury, parable harm); Cohen v. Coahoma County, ent doctrinal support for these propositions the defendants could not plausibly persist in Miss., 805 F.Supp. 398,406 (N.D. Miss. did not impair the vigor with which the claiming lack of awareness ...." Id. at n.9. 1992) (physical abuse by jail staff would Seventh Circuit asserted them or the willing­ Thus, it appears that in reality, whatever the constitute irreparable harm). Such a holding ness of other courts to accept them uncriti­ state of the defendants' knowledge at the time would also be consistent with the law of ex­ cally. See DesRosiers v. Moran, 949 F.2d 15, the complaint was filed, the suit itself may '. haustion in federal prisoner litigation, which 19 (1stCir. 1991);Morellov.james, 797 provide defendants with sufficient knowledge excuses exhaustion where the administrative F.Supp. 223, 234 (W.D.N.Y. 1992). to make out the subjective element of the procedure is "inad~quate to prevent irrepara­ The Seventh Circuit gloss does not survive claim. Presumably this is true at the summary ble injury." Terrellv. Brewer, 935 F.2d 1015, Farmer. The assertion that officials must be judgment stage as well as later-especially 1019 (9th Cir. 1991). shown to act, or fail to act, "because of, since a claim dismissed because of the defen­ Like the Court's other recent Eighth rather than in spite of," the risk to the prison­ dants' lack of knowledge at the time of the Amendment cases, Farmer involved the claim er is plainly contradicted by the Farmer opin­ complaint could simply be refiled alleging the of a single inmate. The Supreme Court has ion, which states: "Under the test we adopt subsequent enhancement of their knowledge. not reviewed the merits of an Eighth Amend­ today, an Eighth Amendment claimant need The Court then added that its holding "does ment class action since Rhodes v. Chapman not show that a prison official acted or failed not mean ... that inmates are free to bypass in 1981, and in particular has not considered to act believing that harm actually would adequate internal prison procedures and the implications of its state-of-mind require­ befall an inmate; it is enough that the official bring their health and safety concerns directly ment for such cases. acted or failed to act despite his knowledge to court." For this proposition, it cited a 1943 Justice White, concurring in Wilson v. of a substantial risk of serious harm." 62 case about equity jurisprudence, and added Seiter, observed that "intent simply is not U.S.L.W. at 4450 (emphasis supplied). that "an inmate who needlessly bypasses such very meaningful when considering a challenge Similarly, the Seventh Circuit's requirement procedures may properly be compelled to to an institution, such as a prison system." of "impending harm" is incompatible with the pursue them." Id. at 4452. The Court also 502 U.S. at 310. Justice Blackmun, concur­ Farmer Court's invocation of Helling v. observed that" [w] hen these procedures pro­ ring only in the result in Farmer, elaborated: McKinney, which held the risk of "serious duce results, they will typically do so faster Wilsonfailed to recognize that "state­ damage to [a prisoner's] future health" than judicial processes can." 42 U.S.L.W. at sanctionedpunishment consists not so actionable. Id. at 4451, citing Helling. Since 4452. Unfortunately, the Court does not de­ much ofspecific acts attributable to Helling refers to harm that may occur "the fine under what circumstances this suggestion individual state officials, but more ofa next week or month or year," and specifically of a new exhaustion requirement should cumulative agglomeration ofaction addresses a risk (second-hand tobacco apply. (and inaction) on an institutional smoke) of harm that may remain latent for This portion of the Court's opinion reflects level".... The responsibility for submin­ many years, it can hardly be maintained that a some naivete about the practicalities of imal conditions in any prison inevitably known risk of assault must be "impending" prison life. Complaints of threats to prison­ is diffuse, and often borne, at least in before officials are required to act to avert it. ers' physical safety are generally not handled part, by the legislature. The Seventh Circuit's requirement that through formal grievance or complaint proce­ 62 U.S.L.W. at 4454 (citation omitted). For harm be "easily preventable" falls for the dures, but through direct communication this reason, Justice Blackmun argued that same reason. The Court relied on Helling for with security staff. There are two reasons for Wilson should be overruled. the proposition that" [a] prison official's duty this. First, the complaints are often too urgent One solution to this problem lies in the dif­ under the Eighth Amendment is to ensure to await the processes of even an efficient ference between damage claims, brought in 'reasonable safety.''' It is hard to argue that grievance system. Second, grievance systems an official's individual capacity, and injunc­ prison officials act reasonably if they do only are not necessarily confidential. An inmate's tive claims, which name defendants in their what is easy in theJace of a risk of death, grievance may pass through the hands of a official capacities. Such claims are "in all rape, or other serious injury. number of staff members and, in many cases, respects other than name, to be treated as a inmates, since grievance systems typically use suit against the entity." Kentucky v. Graham, The Problem of Injunctive Cases inmates at least in clerical and administrative 473 U.S. 159, 165-66 (1985). This approach The Farmer opinion is most ambiguous in capacities. Given the stigma attached to lends itself to a focus on "the combined acts addressing the plaintiff's claim for injunctive "snitching" in many prison populations, the or omissions" of the state's agents, Leer v. relief, which the Court directed the district combination of delay and the risk of disclo­ Murphy, 844 F.2d 628,633 (9th Cir. 1988), court to address on remand. Quoting Helling sure makes grievance systems an unattractive rather than the search for a particular "bad v. McKinney, it stated that deliberate indiffer­ option for inmates in fear. If the Court's state­ guy" whose individual culpability could sup­ ence '''should be determined in light of the ment implies that an inmate who has com­ port liability. (This point is argued more fully prison authorities' current attitudes and con­ plained fruitlessly to security staff must addi­ in the journal, Vol. 8, No.4 [October 1993] duct,' ... at the time suit is brought and tionally go through the formalities of a griev­ at 8-9.) persisting thereafter." It added that "to sur­ ance process, it is seriously misguided. Farmer seems to assume that the subjective vive summary judgment, [the plaintiff] must Presumably-and consistently with other element of the plaintiff's injunctive claim is to come forward with evidence from which it aspects of equity jurisprudence-a prisoner be assessed in the same way as that element can be inferred that the defendant-officials who seeks a temporary restraining order or of her damage claim, although the issue of were at the time suit was filed, and are at the preliminary injunction and alleges an actual, capacity was not raised. Additionally, the time of summary judgment, knowingly and present danger to safety will still be given the Court observes, in connection with its discus-

8 SUMMER 1994 THE NATIONAL PRISON PROJEG JOURNAL sion of Canton v. Harris, that "considerable ministrative appeal. After those comments Donnell has been the tendency of prison conceptual difficulty would attend any search were written, the Second Circuit revisited the administrators to label disciplinary actions for the subjective state of mind of a govern­ subject and definitively rejected that view. In administrative rather than punitive to avoid mental entity, as distinct from that of a gov­ Walker v. Bates, _ F.3d _, 1994 WL having to comply with the due process re­ ernmental official." 62 U.S.L.W. at 4450. 161050 (2nd Cir., April 29, 1994), the court quirements of Wolff"). It would be pleasant (It is not clear why that is so. Astandard that reasoned: "The constitutional violation ... to be wrong. imposes liability where an official "knows of obViously occurred when the penalty was . ~i The state Attorney General's office an­ and disregards" an unacceptable risk seems imposed in violation of state law and due ,. nounced that it would seek certiorari in readily adaptable to entity liability as long as process requirements. Administrative appeid, Walker. the knowledge exists at a reasonably high whether successful or not, cannot cut off the level within the entity. See Alberti v. Sheriff cause of action any more than can a [&tate o/Harris County, Texas, 978 F.2d 893, 894­ court] proceeding...." 1994 WL 161050 at 5. 95 (5th Cir. 1992) (finding of deliberate It concluded: "The rule is that once prison Other Cases indifference was supported by evidence "that officials deprive an inmate of his constitu­ the state knew that by refusing to accept tional procedural rights at a disciplinary Worth/Noting felons it was causing serious overcrowding in hearing and the prisoner commences to serve Harris County jails") (emphasis supplied), a punitive sentence imposed at the conclu­ cert. denied, 113 S.Ct. 2996 (1993).) sion of the hearing, the prison official re­ U.S. COURTS OF APPEALS However, the Farmer Court did not have a sponsible for the due process deprivation systemic claim before it and did not purport must respond in damages, absent the suc­ Correspondence-Legal and Official to address such cases. Farmer's injunctive cessful interposition of a qualified immunity Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. claim involves the actions or inactions of defense." Id. at 7. The court rejected the 1993). After Turner and Thornburgh, the particular identified officials with respect to analogy, made in one of the earlier decisions, Fifth Circuit cases of Taylor v. Sterrett and a particular inmate, and not with the con­ to criminal proceedings, in which defendants Guajardo v. Estelle, which applied least straints that other state actors (including the who prevail on appeal frequently are incar­ restrictive alternative standards to mail legislature) may have placed on them, or with cerated pending the appellate decision. The claims, are no longer good law. Accordingly, systemic deficiencies resulting from policies criminal defendant's usual lack of recourse prisoners' incoming legal mail need not be or absence of policy for which responsibility under 42 U.S.C. §1983 is attributable to the opened and inspected only in their presence. is diffuse. This kind of distinction has been fact that judges are entitled to absolute im­ An allegation that outgoing legal mail was· acknowledged in other cases. See LaMarca v. munity, while prison disciplinary officials opened and material removed stated claims Turner, 995 F.2d 1526, 1542 (1Ith Cir. are entitled only to qualified immunity. Id. for denial of First Amendment rights and the 1993), cert. denied, 114 S.Ct. 1189 (1994) at 6-7. right of access to courts. The allegation that (citing "the institution's historical indiffer­ Interestingly, the court still did not refer to officials' actions prevented plaintiff's docu­ ence" as a basis for injunctive relieO; Zinermon v. Burch, 494 U.S. 113 (1990), ment from arriving at court sufficiently Hoptowit v. Spellman, 753 F.2d 779, 782 which sets out a framework for determining alleged prejudice to state a court access (9th Cir. 1985) (declining to reevaluate lia­ when post-deprivation remedies meet due claim. bility based on turnover in prison administra­ process requirements and when they do not. tion because the "personal conduct of the The notion of "cutting off the cause of action" Attorney Consultation!AIDS/Work principal named defendants" was not the begs the question when the presence or ab­ AssigD]Rents/Standin~eference focus of the case); see also Mayor v. Edu­ sence of a post-deprivation remedy may well Casey v. Lewis, 4 F.3d 1516 (9th Cir. cational Equality League, 415 U.S. 605 be an element of the cause of action. How­ 1993). Under the Turner standard, prison (1974) (barring an injunction based on con­ ever, the result in Walker is consistent with officials need only put forward a legitimate duct that was limited to the tenure of a single Zinermon, as argued in this column in the government interest and provide some evi­ departed official). lastJournal. dence that the interest put forward is the Thus, the relevant distinction for purposes The court distingUished one of its earlier actual reason for the regulations. In a chal­ of the method of assessing deliberate indiffer­ decisions by observing that the inmate in that lenge to the prison's denial of contact attor­ ence may not-,be the formal and technical one case would have been confined in segregation ney visits to high-seCUrity prisoners, the dis­ between individual and official capacity, but a regardless of the disciplinary conviction, and trict court placed an "unduly onerous bur­ practical one based on the degree to which therefore no constitutional harm resulted den" on the defendants by relying on their the complaint's claims are systemic in nature from his additional, defective conviction. Id. failure to cite any incident of assault, and the relief sought goes to the functioning at 6, citing Russell v. Scully, 15 F.3d 219, hostage-taking, or escape under the former of the institution and not the treatment of an 222 (2nd Cir. 1994). In light of prison offi­ contact visit policy. At 1521: "A prison offi­ individual prisoner. But these comments are cials' history of trying to "avoid their due cial's concern for prison security is entitled speculative at best, and will remain so until process responsibilities simply by relabelling to significant deference." The policy did not the Supreme Court finally elects to examine the punishments imposed on prisoners," eliminate all alternative means of court the implications of its recent decisions for Taylor v. Clement, 433 F.Supp. 585, 586-87 access. At 1523: "Contact visitation with an institutional litigation. (S.D.N.Y. 1977), a cynic might predict that attorney is merely one aspect of the broad New York prisoners will soon find themselves and fundamental right of meaningful access PROCEDURAL DUE PROCESS­ receiving disciplinary sentences and commit­ to the courts." The court does not weigh the DISCIPLINARY PROCEEDINGS ments to administrative segregation contem­ Turner factor of impact on others. The plain­ In the lastJournal, I commented on two poraneously. See also Sanders v. Woodruff, tiffs' proposal of searches before and after Second Circuit opinions suggesting that de­ 908 F.2d 310, 316 (8th Cir. 1990) (dissent­ contact visits was not an acceptable alterna­ fective prison disciplinary proceedings do not ing opinion) ("One of the unanticipated and tive because it only addressed the defendants' deny due process if they are reversed by ad- unfortunate consequences of Wolff v. Mc- concern about contraband but not hostage-

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 9

• taking and injury to staff and attorneys. duration to be fully litigated during their exis­ attorney demanded it. The defendants did not The district court should not have enjoined tence and that the same complainant is rea­ use the transfer to argue that the plaintiff's the defendants' policy prohibiting HIV-posi­ sonably likely to be subjected to again. The claims were moot, and the plaintiff failed to tive prisoners from working in food service court rejects the district court's conjecture bear the burden of proof on the causation because there was no evidence that any that the plaintiff "could again" be placed in issue. named plaintiff was HIV positive or that any segregation. In any case, since the defendants named plaintiff had ever stated he or she was had implemented the legal access plan '; Evidentiary Questionslfrial interested in a food service job or had approved by the district court and said they Davidson v. Smith, 9 F.3d 4 (2nd Cir. applied for one. intended to stick to it, there was no likeli­ -' 1993). The district judge ruled that the hood that he would be subjected to the same ',' defense could not refer to the plaintiff's psy­ Qualified ImmunitylLaw Libraries deprivations. chiatric history (institutionalization during and Law Books/Class Actions­ 1972-76) during his civil trial, in which he Effect ofJudgments and Pending Procedural Due Process­ alleged that a correctional officer had de­ LitigationIMootness Property/StandingiAttorneys'Fees stroyed some of hisclegal papers. This testi­ Abdul-Akbar v. Watson, 4 F.3rd 195 (3d Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. mony was not harmless error, despite a cura­ Cir. 1993). The defendants are entitled to 1993). The plaintiff's allegation that his prop­ tive instruction. qualified immunity from the plaintiff's dam­ erty was taken in shakedowns without comply­ age claims based on denial of law library ing with the regulation requiring a "shake­ Consent Decrees/Correspondence­ access in segregation. At 203: "... [E] ach down slip" listing the property taken and other Legal and Official legal resource package must be evaluated as relevant information did not state a due pro­ Kindred v. Duckworth, 9 F.3d 638 (7th a whole on a case-by-case basis." "... [T]he cess claim because post-deprivation remedies Cir. 1993). Aclass action consent decree standard to be applied is whether the legal were available in the state Court of Claims. The limited the opening of "confidential corre­ resources available to a prisoner will enable deprivation was "random and unauthorized" spondence," even in the inmate's presence, him to identify the legal issues he desires to and not pursuant to established procedures to cases of reasonable cause to believe it con­ present to the relevant authorities, including because those procedures reqUired shake­ tained contraband. The district court rej ected the courts, and to make his communications down slips. This holding is contrary to Ziner­ the plaintiff's motion to enforce the decree with and presentations to those authorities mon v. Burch, which held that conduct was on the ground that a consent decree could understood." (203) At 203: authorized when "[ t] he State delegated to [the not require more of the defendants than the With the availability ofbasic federal defendants] the power and authority to effect Constitution. and state indices, citators, digests, self­ the very deprivation complained of here ...and At 641: "This view quite simply is incor­ help manuals and rules ofcourt, along also delegated to them the concomitant duty to rect. Consent decrees often embody outcomes with some degree ofparalegal assis­ initiate the procedural safeguards set up by that reach beyond basic constitutional pro­ tance and a "paging system" through state law to guard against unlawful confine­ tections ...Indeed, it is a rare case when a which photocopies ofmaterials from an ment." 494 U.S. at 138. (Another way to say consent decree established only the bare institution's primary facility may be this is that it is the deprivation of property, not minimum required by the Constitution." The obtained, we are persuaded that even a the denial of due process, that must have been court also rejects the view that the decree set prisoner in a segregated unit... would unauthorized.) forth only procedural obligations or that it not be denied access to the courts. Nor At 1037: "Due process requires that Stewart was intended to track minimum constitution­ could the absence from the satellite have a meaningful opportunity to be heard on al standards, based on the language of the library ofany particular volume or the issue of whether the fan was contraband." decree itself. ' research aid be construed as a barrier As to property for which he received a receipt, The court rejects the defendants' argument to constitutionally required legal the disciplinary hearing at which he was con­ that given the ease of smuggling contraband access. [Footnote omitted] victed of possessing contraband provided this in confidential correspondence, reasonable The exact materials required may vary by opportunity. In addition, regulations prOVided grounds exist to believe that there is contra­ institution. At 204: "The hallmark of an ade­ that the prisoner had 30 days to file a griev­ band in every piece of incoming mail, since quate satellite system, which achieves the ance contesting whether the property was the wording "obViously" contemplates partic­ broad goals of Bougds, is, in our opinion, contraband; he wrote to the warden and ularized suspicion. whether the mix of paralegal services, copy­ asked that his letter be treated as an emer­ ing services and available research materials gency grievance, but it wasn't, and he never Use of Force/Summary Judgment can provide sufficient information so that a communicated with grievance personnel. Norman v. Taylor, 9 F.3d 1078 (4th Cir. prisoner's claims or defenses can be reason­ The plaintiff lacked standing to seek 1993). The plaintiff alleged that he took a ably and adequately presented." injunctive relief because he had been trans­ drag of an inmate worker's cigarette and an Aprior consent decree governing law ferred to a different prison. Even if his com­ officer ran up and hit him with his keys. The library services is to be presumed valid and plaint was construed to address the entire officer said that the plaintiff was not only in conformity with the law; the district court's prison system, he would lack standing. smoking but yelling, and denied he ever view that it did not provide adequate court Shakedowns were conducted every 60 days threatened or hit him. The district court held access at most demonstrated that the parame­ but the plaintiff said he had had property that the plaintiff had insufficiently refuted the ters of the law were uncertain. confiscated only twice in one year. At 1038: statement that he was causing a disturbance, Once the plaintiff was released from the "We do not believe that this rate of incidence justifying the use of force, and granted sum­ segregation unit, he had no further interest in supports a conclusion that Stewart is under mary judgment. the library resources available on that unit, an immediate threat of harm." The district court should not have granted and his claim was moot. The "capable of rep­ The plaintiff was not entitled to attorneys' summary judgment against this pro se litigant etition, yet evading review" doctrine applies fees on a "catalyst" theory based on the fact without directly posing the "pivotal question" only to deprivations that are too short in that he was transferred 15 months after his whether he was creating a disturbance and

10 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL permitting him to clarify it. At n. 1081: Under courts." The plaintiff should be permitted to tion or programs under court supervi­ the plaintiff's version of the facts, the defen­ prove that no reasonable alternatives existed sion to the governance ofstate or local dant needed only enough force to stop him for other inmates. He should have been per­ authorities. First, the district court muse from smoking. "Accepting this version of mitted to take discovery concerning the merits determine that the underlying constitu­ events ...the act of swinging heavy, brass keys of the defendants' claim that they kept him in tional wrong has been remedied, either at Norman's face clearly exceeded the amount segregation because of lack of bed space. fully or to the full extent now deemed of force required. It is hard to imagine a practicable... Second, there must be a sound penological justification for using any Law Libraries and Law determination that the authorities have physical force, without any prior warning, for Bookslfransfers complied with the decree in goodfaith such a minor violation of the jail's rules." Petrick v. Maynard, 11 F.3d 991 (lOth Cir. for a reasonable period oftime since it The facts alleged could certainly support a 1993). The plaintiff's Oklahoma conviction" was entered... finding of malicious and sadistic intent. was enhanced based on his prior convictions Implicit in these requirements is the The plaintiff's alleged initial and lingering in two other states. He attempted to obtain needfor the district court, before termi­ pain to his hand, swelling and decreased mobil­ legal materials to attack the earlier convic­ nating the de'cree entirely, to be satis­ ity, and psychological injury resulting from the tions but the prison law library did not have fied that there is relatively little or no defendant's alleged threats, is "beyond the de them, declined to get them, and would not likelihood that the original constitu­ minimis level" (1082). At n. 5: The threats are authorize obtaining them through inter­ tional violation willpromptly be repeat­ "relevant to this inquiry as well." library loans. ed when the decree is lifted... Whether The plaintiff's inability to challenge the authorities are likely to return to for­ Appointment of Counsell convictions that resulted in his enhanced sen­ mer ways once the decree is dissolved Pro Se Litigation tence meets the actual injury reqUirement of may be assessed by considering U[t]he Williams v. Carter, 10 F.3d 563 (8th Cir. court access claims. The state did not meet defendants' past record ofcompliance 1993). The plaintiff complained of unconsti­ its obligations under Bounds. At 995: and their present attitudes toward the tutional jail conditions. The district court "Having exercised its prerogative under reforms mandated by the decree." .. , requested appointment of counsel. Before a Bounds to afford Petrick law library facilities Ofpossible further relevance is the way hearing, the plaintiff had submitted a witness rather than legal representation, Oklahoma that demographic, economic, andpolit­ list, requesting that the court subpoena the owed Petrick a duty to prOVide adequate legal icalforces may be expected to influence witnesses. Later, in response to a form order resources to him." In a case like thiS, the local authorities and the institution from the court, he submitted a different list. prisoner need not identify the materials once the shelter ofthe decree has been The district court acted only on the second, reqUired with specificity, but "the materials lost. [Citations omitted] despite the plaintiff's protests at the hearing, sought should be described sufficiently so The court assumes arguendo ("we neither apparently treating the second list as the only that the prison can obtain them for the pris­ adopt nor reject") the standard "most favor­ one requiring attention. oner without being required to perform legal able to the Commissioner that we can imagine The district court abused its discretion. research for the prisoner...." The prisoner being adopted by the Supreme Court," Le., At 567: must also "articulate" (not prove) a need entitlement to termination on a showing "that We believe this action held an un­ for the materials. the federal violations of the type that pro­ counselled litigant to too strict a stan­ voked the original action have been entirely dard. When a court has denied a motion Modification ofJudgments/ remedied or remedied to the full extent feasi­ for appointment ofcounsel, it should Judicial DisengagementIPre-Trial ble; that a reasonable period of time has continue to be alert to the possibility Detainees/Crowding passed during which such compliance has that, because ofprocedural complexi­ Inmates ofSuffolk CountyJail v. Rufo, 12 been achieved; and that it is unlikely that the ties or other reasons, later develop­ F.3d 286 (lst Cir. 1993). On remand from original violations will soon be resumed if the ments in the case may show either that the Supreme Court, the district court denied decree were discontinued." (293) counsel should be appointed, or that the sheriff's renewed motions to modify a jail Applying this hypothetical standard, the strictprocedural requirements should, conditions consent decree to permit double­ court agrees that double-celling of detainees in fairness, be relaxed to some degree. celling and denied the state Commissioner of is not automatically unconstitutional. At 293: The district murt is directed to reconsider Correction's motion to vacate the decree en­ "... [B] ut we think it obViously apparent that calling the witnesses in the original list, espe­ tirely. The commissioner, but not the sheriff, double-celling in very small quarters, with cially state officials who had recently inspect­ appealed. lack of security against assaults, and possibly ed the jail and inmates who were in it at the The court rejects the commissioner's posi­ other threats (disease) could violate due time of the events complained of. tion that motions to vacate are determined process." It is not clear that the sheriff's only by "whether the defendants are in pre­ immediate plans, much less the complete Access to Courts­ sent compliance with constitutional require­ vacation of the decree, would ensure consti­ Punishment and Retaliation ments and whether the effects of the original tutional conditions, given that the facility was Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. violation have abated." (291) The Supreme designed with single-ceiling in mind. Even if 1993). The plaintiff's allegation that he was Court's decisions in Dowell and in Freeman the immediate plans were accepted, unconsti­ subject to retaliation for helping other prison­ v. Pitts, which the court "tentative [ly]" be­ tutional conditions might later be recreated. ers with lawsuits should not have been dis­ lieves apply generally to institutional reform The sheriff submitted a new motion to missed. There is no constitutional right to litigation and not just to school desegregation modify and gained some relief in a later dis­ assist other inmates in lawsuits, "but prison­ cases (293), trict court opinion not yet reported. ers are entitled to receive assistance from jail­ ... indicated that there are two condi­ house lawyers where no reasonable alterna­ tions that must be met before a district tives are present, and to deny this assistance court is essentially obliged to terminate denies the constitutional right of access to a litigated decree and return the institu-

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 11 Cruel and Unusual Punishment! Restraints (1459-60): The placement of Religion-Services Within Negligence, Deliberate Indifference inmates in full mechanical restraints while Institution/Access to Courts­ and IntentlPunitive Segregation/ locked in their cells does not violate the Eighth Law Libraries Remedial Principles Amendment as long as it is conducted in con­ Alston v. DeBruyn, 13 F.3d 1036 (lth Cir. LeMaire v. Maass, 12 F.3d 1444 (9th Cir. formity with the prison's regulations, which 1994). The district court erred in dismissing 1993). Rules imposed for security reasons in require express approval of the superintendent as frivolous the plaintiff's complaint of com­ a punitive segregation unit are to be reviewed or designee; limits the practice to inmate plete denial of religious services to segrega­ under the "malicious and sadistic" standard behavior risking major destruction of proper­ tion inmates without evidence concerning the of Whitley and Hudson rather than the delib­ ty, creating serious health or injury hazard, or prison's policy and the need for it. At 1040: erate indifference standard applied in Wilson threatening to escalate into a serious distur­ "The court's assumption that the defendants v. Seiter to conditions of confinement. At bance; and requires that they be discontinu~d were justified in restricting Alston's religious 1452-53: as soon as it is reasonable to believe the . freedom simply because he was in adminis­ What LeMaire complains ofare not so behavior will not recur. The state did not con­ trative segregation was improper." much conditions ofconfinement or test the unconstitutionality of practices beyond The district cour,t erred in dismissing as indifference to his medical needs which those regulations. The district court's injunc­ frivolous the plaintiff's claim of denial of do not clash with important governmen­ tion should do no more than order the defen­ court access without a factual record. It tal responsibilities; instead, his com­ dants to follow their regulations. "implied that the constitutional requirement plaint is levelled at measuredpractices is met whenever an inmate is given any time and sanctions either used in exigent Use of Force in a law library. Not so. The touchstone is circumstances or imposed with consid­ Hickey v. Reeder, 12 F.3d 754 (8th Cir. 'meaningful' access, not just access." (1041) erable due process and designed to alter 1993). It was unconstitutional for prison staff The lack of an allegation of prejudice did not LeMaire's manifestly murderous, dan­ to shoot the plaintiff with a stun gun because make the claim frivolous; as apro se litigant, gerous, uncivilized, and unsanitary he refused to sweep his cell. The court rejects the plaintiff should have had an opportunity conduct. the defendants' efforts to equate the stun gun to amend his complaint. This holding is directly contrary to jordan with the pain of a shock from static electrici­ v. Gardner, 986 F.2d 1521, 1529 (9th Cir. ty. At 757: "This is exactly the sort of torment Protection from Inmate Assault 1993) (en bane), which reversed a similar without marks with which the Supreme Court Williams v. Mueller,13F.3d 1214 (8th panel holding by the same judge and held that was concerned in McMillian, and which, if Cir. 1994). The plaintiff testified that he was deliberate indifference is applicable to secu­ inflicted without legitimate reason, supports assaulted by another inmate and an officer rity practices. the Eighth Amendment's objective compo­ watched but did not intervene and delayed Restraints (1457): Requiring dangerous nent." (Footnote omitted) At 758: "The rela­ before calling for assistance. The district inmates to take showers in shackles does not tionship between the need for force (zero) court granted judgment as a matter of law violate the Constitution. "That LeMaire finds and the force used (a painful and incapacitat­ after the plaintiff's case. It shouldn't have. showering in restraints difficult is merely the ing shock) was excessive." At 759: Such a motion is properly characterized as a price he must pay for his violent in-prison There is no question that prison offi­ motion for judgment on partial findings, and behavior." cials may compel compliance with legit­ must be supported by findings of fact. Circuit Exercise (1457-58): The denial of exer­ imate prison regulations. A requirement precedent upholding a failure to intervene in cise privileges for most of a five-year period that inmates sweep their cells is clearly an assault when it would have created a more was sufficiently serious to violate the objec­ a legitimate regulation. Nor do we dis­ dangerous situation may be distinguishable tive prong of the Eighth Amendment, but was pute that circumstances may arise on the facts from this case. not imposed either with deliberate indiffer­ where prison officials are justified in ence or maliciously and sadistically, since it using summary physicalforce. These Mental Health Care/Class Actions­ was a direct response to his own dangerous three facts, however, simply do not Effect of)udgments and Pending conduct. "All LeMaire had to do was to follow translate into a mandate to use sum­ Litigation the rules." The court notes that he could mary physicalforce to compel compli­ Martel v. Fridovich, 14 F.3d 1 (1st Cir. exercise in his cell, and the district court's ance with all legitimate rules. 1993). The plaintiff was criminally sentenced injunction requiring provision of tennis shoes to 18 to 25 years. He was concurrently com­ for this purpose was not disputed. Use ofForce mitted to the Massachusetts Treatment Center Punitive Segregation, Access to johnson v. Bi-Statejustice Center, 12 for Sexually Dangerous Persons for one day to Medical Personnel, Lighting (1458-59): F.3d 133 (8th Cir. 1993). Although the plain­ life pursuant to a state statute that provides for Placement in "quiet cells" with two solid tiff admittedly created a disturbance and then discharge when he is no longer "sexually dan­ outer doors was not disputed to violate the acted to prevent the closing of a security gerous," at which time he would be required Eighth Amendment. The court rejects the door, his testimony that he was hit in the to serve any unexpired criminal sentence. argument that the prohibition on their use head, rendered semi-unconscious, and then The defendants were required by consent should be limited to inmates with serious kicked, stomped and beaten after he had decree to provide for "the day or other short­ medical problems, since previously healthy been pushed to the ground and subdued term release of Treatment Center patients for inmates may have a medical emergency or be might support an inference of an unnecessary approved programs outside the Treatment injured in a fall or accident. However, the and wanton infliction of pain. The appeals Center where such relief is deemed appropri­ requirements that the outer door be left open court says this is "not an easy question" and ate by the Department of Mental Health." In and an intercom be provided were redun­ remands, since the trial court failed to con­ 1991, after escapes from the program, the dant. The defendants also agreed to "modify sider the Hudson standard. defendants suspended the program and then its use of lighting in the cells"; the district changed the rules to exclude persons under court had found that they kept the lights on criminal sentence and not eligible for parole, 24 hours a day. including the plaintiff.

12 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL ...,,------

The change was not so "outrageous" as to deny substantive due process. Since the plain­ tiff did not meet the new eligibility rules, he Dear Prison Project... had no state-created liberty interest that would require procedural due process. The Dear Prison Project: changes did not violate the ex post facto I am a woman incarcerated in a state prison out West. The programs a clause because they "are not punitive but library here are very poor and I've heard the men's prison has many mo rather related to the state's concern for com­ grams. Can we sue for sex discrimination? How can we find out what progr munity safety." Insofar as the plaintiff alleges available at the men's prison? . that the changes result in a denial of the ade­ quate treatment required by the Constitution and a federal court consent decree, that con­ Dear Not-Forgotten Female: _ cern "is best addressed through an action to Yes, you can file a complaint against your state department of correctio enforce the consent decree." (3) At 3 n. 4: have grounds for an equal protection (sex discrimination)'claim under t Allowing the decree to be challenged Amendment. Substantial barriers-such as prohibitions against correspo through an individual action for dec­ between female and male inmates-make investigations of the programs a. laratory and injunctive relief"would mens' plisons difficult, but not impossible. However, once you file a c tend to discourage governmental au­ can obtain information through a process called discovery. thoritiesfrom entering into decrees in Gail Perry, a plaintiffs' attorney in the Klinger case (824 F.Supp at 1391) public law litigation, encourage the the following suggestions to women plisoners: (1) send letters to friends! splintering ofcivil rights claims on an have them mail questions to male prisoners; (2) stay in contact with w individual basis, andpromote disre­ ers who are released and who can write to male prisoners and collect spectfor judicial decrees duly entered (3) ask for the annual department of corrections report-it is public following carefulproactive review of you may find them "glowing" about how wonderful their programs (£ the often complex mix ofindividual oners) are; and (4) ask friends and family to write and ask for other i and institutional considerations in­ such as newspaper articles on prisoner programs, and ask them to send volved in such litigation." [Citation Take advantage of the word-of-mouth system and keep records of everyt omitted] sure not to violate any plison correspondence rules. Ms. Perry reports that the women inmates involved in Klinger read G EmergencieslProcedural Due Wilson, 546 ESupp. 174 (W.D.Ky. 1982), and Glover v.johnson, 478 ES ProcesslLaw Libraries and (E.D.Mich. 1979), recognized factual similarities with their own situatio Law Books/FoodlReligion­ used the cases as models for their complaint. Women plisoners shou Practices-Diet Canterino, Glover, and Klinger for guidance. Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994). The legal standard for a 14th Amendment equal protection claim b The plaintiff's allegation that he was placed in is "parity of treatment." Pality of treatment means that the State must lockdown for 25 days even though he was not grams for women that are substantially eqUivalent, but not identical . involved in the disturbances that precipitated grams for men. Glover, 478 ESupp. at 1079. COUlis will analyzeyourc the lockdown should not have been dismissed the follOWing questions: (a) are there programs prOVided to male in as frivolous. At 9: "Even though a lockdown female inmates, resulting in a "substantial burden" to female inmat rarely will require more than informal re­ an important governmental objective for providing different progr View, some process arguably was due Eason are the program differences designed in such a way that they are su and, given the limited information before us, ed to the governmental objective? Klinger, 824 ESupp. at 1391. If a we cannot determine whether it was provid­ "yes" to (a), and "no" to (b) and (c), you should win your case. ed." (Footnote omitted) The plaintiff's claim of deprivation of law Kim Dvorchak is a student at the City University ofNew York Law library access should not have been dis­ working as a law clerk at the National Prison Project this summer. . missed as frivQlous. At 9-10: "Though such rights may be narrowed without constitution­ al difficulty, especially in the wake of a riot, if an inmate because of his religion is at least Though the statute is ambiguous, the court Eason was purSUing a legal action which arguably inadequate." (Footnotes omitted) gives "controlling weight" to the Department made the use of a law library necessary and of Justice's interpretative regulations. all access was nonetheless denied, this depri­ DISTRICT COURTS Qualified immunity is not available against vation constitutionally might be cognizable." the ADA claims, since the very existence of (Footnote omitted) Disabled/Qualified Immunity the ADA and its regulations put them on The plaintiff's allegation that he is a Muslim Noland v. Wheatley, 835 F.Supp. 476 (N.D. notice that their failure even to attempt to and was deprived of all but three pork-free Ind. 1993). The plaintiff is a "semi-quadri­ accommodate the plaintiff was unlawful. meals, subsisting on peanut butter biscuits plegic" with a colostomy and a urostomy. He during the 25-day lockdown, should not have was subjected to disgusting conditions in jail Procedural Due Process­ been dismissed as frivolous. At 10: "Prison and denied access to various jail programs Disciplinary Proceedings/Grievances officials have a constitutional obligation to and activities. and Complaints About Prison provide reasonably adequate food and, absent The plaintiff stated a claim under the Amer­ Nicholson v. Moran, 835 F.Supp. 692 some legitimate penological interest prevent­ icans with Disabilities Act. Claims under Title (D.R.I. 1993). Prison officials' policy of auto­ ing the accommodation of a prisoner's reli­ II of the Act (public services) do not reqUire matically filing a charge of providing false gious restrictions, food which is anathema to exhaustion of administrative remedies. information against prisoners who complain

THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 13

.7•••••••••••••• =111£..._· ••-----.'.,.-""=------about assault by officers without obtaining the plaintiff's protestations that his good time had ence on the part of a jail officer was support­ initiation of criminal charges or providing been miscalculated. At 705: "When an indi­ ed by evidence that she "failed to comply with "sufficient conclusive evidence" to substanti­ vidual's freedom hangs in the balance and an the established jail regulations and standards ate the allegation does not violate the First official has been put on notice of a possible which provided guidance on the reqUired Amendment. error affecting that freedom, it is incumbent precautionary measures to prevent possible Disciplinary proceedings in Rhode Island upon the official to ensure that our democrat­ suicides" (553). Even though she knew of the are governed by the "Morris Rules," estab­ ic processes are not apathetically forfeited." decedent's suicidal tendencies and intoxicat­ lished by federal consent judgment and now The fact that the defendants did not them­ ed and unstable physical and mental condi­ embodied into state law. They require sub­ selves have authority to change the plaintiff's ­ tions, and heard her yell repeatedly that she stantial evidence to support a disciplinary sentence did not matter. was going to kill herself, she did not person­ conviction, though" [t]here is some ques­ ally monitor the decedent's cell. tion" whether this standard should be applic­ Denial of Ordered Care able under §1983 in light of the Supreme Brewer v. Blackwell, 836 F.Supp. 631 Protection front:Inmate Assault Court's endorsement of a "some evidence" (S.D.Iowa 1993). The plaintiff's coronary Johnson v. Meachum, 839 F.Supp. 953 standard. Here, the some evidence standard artery disease is a serious medical need. The (D.Conn. 1993).' Allegations that a warden was not met, since there was no evidence that court includes a useful essay on the definition failed to place the plaintiff in protective cus­ the plaintiff prOVided false information. They of this term (639-41). At 642: "Recklessness tody and the commissioner "failed to enact only evidence against the plaintiff was a letter in the face of a serious medical need occurs and enforce policies and procedures to pro­ from the FBI stating there was insufficient evi­ if the prison officials disregard a substantial tect the physical and mental health of inmates dence to support criminal prosecution and a risk of danger that is known or would be ap­ facing overt and explicit threats of physical similar letter from the Department ofJustice. parent to a reasonable person in the prison and sexual abuse by other inmates" (955) official's position." stated a claim under the deliberate indiffer­ Pre-Trial DetaineeslPest Control ence standard. So did allegations that the Walton v. Fairman, 836 F.Supp. 511 (N.D.Ill. Suicide Prevention plaintiff complained to another defendant 1993). The plaintiffs' allegations that they Herman v. Clearfield County, Pa., 836 repeatedly about incidents of sexual harass­ informed the Cook County sheriff and the execu­ F.Supp. 1178 (W.D.Pa. 1993). Apsychologist ment, without response, and that a fourth tive director and superintendent of the jail of an employed by a private mental health program defendant placed the plaintiff in a cell with infestation of rodents was sufficient to support who worked full-time in the jail and func­ another inmate that he knew presented a dan­ their liability for failure to correct it. However, tioned as the jail psychologist, who made ger of sexual assault. the plaintiffs did not allege a city policy or cus­ final decisions concerning prisoner supervi­ The defendants are not entitled to qualified tom "to allow rats or any other four-legged ver­ sion, and who was the only qualified person immunity at this point because the right to min to roam the jail freely" (514). (This holding who could provide psychological screening protection of personal security was clearly illustrates the necessity to plead the supposed services to detainees, acted under color of established and their alleged behavior could policy with specificity-e.g., a policy "to fail to law, as did the program that employed him. not have been believed to constitute an provide adequate extermination services" or "of exception to it. Whether the defendants can deliberate indifference to preventing vermin Procedural Due Process­ establish that their conduct was "objectively infestation.") Classification, Administrative reasonable" depends on the facts, which are At 515: "... [I]mprisoning plaintiffs in dun­ Segregation not before the court. geon-like conditions in which rodents crawl Casey v. Lewis, 837 F.Supp. 1009 (D.Ariz. allover and attack them is barbarous to the 1993). Arizona regulations do not create a Restraints standards of our contemporary society." The liberty interest in staying in general popula­ Littlewind v. Rayl, 839 F.Supp. 1369 defendants' alleged failure to take action tion and out of administrative segregation or (D.N.D. 1993). The plaintiff and several other when informed of the infestation supported a in avoiding reclassification to higher security inmates assaulted an officer. Afterward, he claim of deliberate indifference. levels. In any case, their regulations provide fully cooperated with prison offiCials, who the process due (hearings every six months, transported him to an "observation unit." Protection from Inmate Assault notice, and the opportunity to provide a state­ There (at 1370-71): Rutledge v. Springborn, 836 F.Supp. 531 ment or witnesses' statements, plus safeguards ... [P}laintiffwas placedface down (N.D.Ill. 1993). The plaintiff exposed an on the reliability of confidential informants). and without any clothes, in a 'North escape plot and was later threatened and The plaintiffs had alleged that administrative Dakota-style' four-point restraint [in assaulted several times despite prison offi­ segregation was used to lock up prisoners which he} was handcuffed behind his cials' promises to protect his confidentiality. against whom prison officials could not prove back, his legs were shackled together by The warden and assistant warden are not disciplinary charges. The court ignores this leg irons, and a length ofchain con­ entitled to summary judgment on the plain­ allegation, analyzes the case in conventional nected the two behind his back... tiff's allegation that at one point they removed due process terms, and commends the defen­ Plaintiffremainedface down on his him from segregation and put him in protec­ dants for providing due process protections. bed, with his feet bowed toward his tive custody for the purpose of revealing his head. The evidence was inconsistent informant's role, and that they failed to trans­ Suicide PreventionlPendent and whether plaintiffcould rest his head on fer him promptly when he first reported Supplemental Claims; State Law in the bed, or whether it too was bowed threats against him. Federal CourtIDamages-Assault and toward his feet. Injury/State, Local and Professional He remained there for almost eight hours, False Imprisonment Standards with a 40-minute meal break but no bath­ Alexander v. Perrill, 836 F.Supp. 701 Bragado v. City ofZion/Police Dept., 839 room break; he urinated on the bed and the (D.Ariz. 1993). Prison officials were deliber­ F.Supp. 551 (N.D.Ill. 1993). In a jail suicide floor. He was then placed in "three point ately indifferent in doing nothing about the case, the jury's finding of deliberate indiffer- restraint" for 23 hours, where he "spent the

14 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL majority of his time in a stooped position mined by state and county, and state officials Act's distinction between new and existing with his wrists handcuffed together under­ retained the right to review the budget and facilities is now codified in Department of neath one leg, and both legs shackled togeth­ make modifications as necessary. State offi­ Justice regulations. At 1071: er. In this position, plaintiff was able to use cials "either knew, or should have known, With limited exceptions, the regulations bathroom facilities, but unable to use toilet the level of legal services that were being pro­ do not require public entities to retrofit paper" (1371). He was then kept handcuffed vided at the OCIC, and had ample opportunity existingfacilities immediately and com­ and in leg irons for seven-and-a-half days. and authority to adjust those levels." (1389, '; pletely. Rather, aflexible concept ofacces­ For all but the last three days of this period, footnote omitted) , • sibility is employed, and entities are gener­ he was kept naked, and he was without a At 1389: "The paging system, also known :" ally excusedfrom makingfundamental blanket for the first two days. (This was in as an 'exact-cite system' because an inmate alterations to existingprograms and bear­ April in North Dakota.) He was not given a must request materials by exact cite, has been ing undue financial burdens. 28 C.P.R. toothbrush or toothpaste until two days condemned by courts throughout the coun­ 35.l50(a) & (b) (1992). In contrast, the before his release, and his cell was illuminat­ try." By 1993, no reasonable official would regulations regarding new construction and ed 24 hours a day during the entire period. have believed a paging system by itself was alterations ardubstantially more strin­ The defendants testified that these mea­ sufficient to protect the right of court access, gent. When apublic entity decides to alter a sures were emergency safety measures, even The right of court access applies to inmates facility, it "shall, to the maximum extent though he did nothing disruptive during the temporarily housed at transient institutions feasible, be altered in such a manner that entire period of restraint. AjUry found for the such as jails and the reception center in this the alteredportion ofthe facility is readily defendants. case. The deprivation was not de minimis accessible to and usable by individuals with The court grants judgment as a matter of because it was not limited to a few days and disabilities." 28 C.P.R. 35. -151 (b) (1992). law for the plaintiff on liability and sets a trial the court knew that the plaintiff had to This obligation ofaccessibility for alter­ on damages. Though the defendants cited case respond to pending motions. The court also ations does not allow for non-compliance law upholding some of these deprivations, notes that the same defendants filed a sum­ based upon undue burden. none of them involved all of these conditions mary judgment motion and asked for expedit­ imposed simultaneously. At 1373: "The chain­ ed consideration at the same time the plaintiff Discovery ing of an inmate in this manner and depriva­ was deprived of legal access. Montalvo v. Hutchinson, 837 F.Supp. 576 tion of every human necessity without provo­ The fact that the plaintiff has continued to (S.D.N.Y. 1993). Grand jUry minutes and per­ cation was so barbaric and inhumane that it be a prolific litigator does not establish lack sonnel records of police officers should be could only have been done maliciously and of harm. Actual injury is not required when produced in discovery only after in camera ­ sadistically for the very purpose of causing deprivation of core court access require­ review. At 580: "Because of these important harm, and must be considered cruel and ments is alleged. At 1391: "In any event, 'in­ interest on both sides of such matters, revela­ unusual punishment as a matter of law." The jury' includes petitions not filed, allegations tion of such files to adversaries should be court notes that no justification was presented left out of the complaint, legal theories not granted where but only where found by an for the deprivation of clothing, the ability to pursued, and cases not cited in the briefs that impartial reviewer to be likely to affect the use the toilet and toilet paper, and tooth­ plaintiff did manage to file." The complaint outcome of the litigation." brush, that the plaintiff was never examined sufficiently alleged that the plaintiff missed a by medical personnel although he was motion deadline and that a case was dis­ Modification ofJudgments restrained next door to the infirmary, and also missed as frivolous because of his inability Patterson v. Newspaper & Mail Deliverers' that the other three inmates were treated to conduct legal research. Union, 13 F.3d 33 (2nd Cir. 1993). The exactly the same as the plaintiff. An allegation of the denial of copying ser­ "flexible standard" of modification stated by vices stated a claim. At 1392: "Duplicating Dowell and Rufo is applicable in this dis­ Law Libraries and Law Books/Access services were not expressly mentioned in crimination case which does not involve a to Courts-Services and Materials Bounds, but the lower courts have recognized governmental entity. At 38: Medical Care-Standards of Liability that photocopying can be an indispensable ... The "institution" sought to be -Serious Medical NeedslDental service when the plaintiff is obliged to provide reformed need not be an instrumentali­ CarelEqual Protection copies of exhibits and other original docu­ ty ofgovernment. Ifa decree seeks per­ Canell v. Bradshaw, 840 F.Supp. 1382 ments to the court and opposing counsel." ld. vasive change in long-established prac­ (D.Ore. 1993). The plaintiff complained of An allegation that the defendants refused tices affecting a large number ofpeople, inadequate law library access in a state treatment for a missing filling stated an and the changes are sought to vindicate prison intake center operated by county jail Eighth Amendment claim. At 1393: significant rights ofapublic nature, it authorities. At 1388: "Defendants continue to labor under the fatal is appropriate to apply aflexible stan­ The state defendants contend the con­ misconception that the Eighth Amendment dard in determining when modification tract between the ODC and Clackamas duty to provide medical care is limited to or termination should be ordered in County makes the County solely liable conditions that are life-threatening or will light ofeither changed circumstances or for day-to-day operations ofthe OClC. cause permanent disability. In fact, the duty substantial attainment ofthe decree's Defendants cite no law to support the also applies to medical conditions that may objective. Decrees in this context typi­ novelproposition that a state may avoid result in pain and suffering which serve no cally have effects beyond the parties to its constitutional obligations to legitimate penological purpose." the lawsuit, as is true ofthe provisions inmates by contracting with a third for affirmative action remedies in this party to house those inmates. The only NON-PRISON CASES case. Though it is important to make reported cases discussing this question sure that agreements in such litigation are squarely to the contrary.... Disabled/Construction of Facilities are not lightly modified, it is also Moreover, staffing requirements, operating Kinney v. Verusalim, 9 F.3d 1067 (3rd important to provide all concerned with policies and procedures are jointly deter- Cir. 1993). The Americans with Disabilities an incentive to enter into constructive i I L THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 15 settlements.. ..For plaintiffs, the cer­ son was an appropriate class representative Judicial Disengagement! tainty that an agreement will be for a class of mentally ill prisoners. (The Modification ofJudgments enforced without modification is an magistrate judge says the father is the class Consumers Advisory Bd. v. Glover, 151 incentive to negotiate a settlement that representative, but the district judge frames F.R.D. 496 (D.Me. 1993). The fact that defen­ achieves some, though not all, ofwhat the question differently.) dants were in substantial compliance in 1983 might have been obtained in litigation. The case meets the requirements of com­ did not entitle them under Dowell to vacation For defendants, however, it is the monality and typicality. At 426: of a consent decree in 1993, since the decree prospect ofmodification as circum­ ... The plaintiff, through his com­ was intended to create a continuing obliga­ stances change or objectives are sub­ plaint, has launched a systemic attack tion, and since defendants made no shOWing stantially reached that provides the on the way that mental health care is of current compliance. incentive to settle on reasonable terms, provided to acutely and seriously men~" The defendants are not entitled to vacation rather than adamantly resist in pro­ tally ill inmates in the Alabama prison under Rufo in the absence of any showing of tracted litigation .... system .. .. Though there certainly may changes in factual conditions. Alleged changes in The court describes its 1983 New York be some factual differences between the the law (Youngberg v. Romeo) are character­ State Association for Retarded Children individual class members and the ized by the court as a clarification. The fact that ("Willowbrook") decision as "the seminal nature and severity oftheir illness, such some provisions are now embodied in state law case actually applying a more flexible stan­ individual differences do not defeat cer­ does not bring the case within the bar of Penn­ dard." tification because there is no require­ hurst. At 501 n. 9: since the defendants did not ment that every class member be affect­ establish changes in fact or law, they were not Class Actions-Certification of ed by the institutionalpractice or con­ entitled to consideration of whether the pro­ Classes/Mental Health Care dition in the same way. posed modification (vacation) was appropriately Bradley v. Harrelson, 151 F.R.D. 422 Rule 23(b)(2), Fed.R.Civ.P., is "particular­ tailored... (M.D.Ala. 1993). The father of a mentally ill ly applicable to suits such as the one sub prisoner could sue on his son's behalf as next judice which involve conditions of confine­ John Boston is the director ofthe Prisoners' friend without being declared his legal ment in a correctional institution." Rights Project, LegalAid Society ofNew York. guardian, and under these circumstances his NO EQUAL JUSTICE • con't.jrompg. 2 agreement, however, about the fact that our between security staff and treatment staff. current systems of criminal justice-of All the officers are reqUired to do both latest in stun guns, etc.). In another which corrections is an integral part-vio­ kinds of work. Since the main industry example, I recently received an announce­ late the most basic human right of all, the was furniture making, officers have to ment of the 13th Annual American Jail right to equality of treatment under the law. be able to teach woodworking in the Association Conference. On the first page, prison factory. I am urged to "tap into the 65 billion dol­ Conclusion Officers wear no uniforms. One of the lar local jails market" and the following I have been painting a grim and som~~" main goals of the prison is to make it as appears on the second page: "There are what hopeless picture. Let me close by ~., much like the real world as possible ex­ over 100,000 people who work in the offering some hope and some light. We cept that, recognizing it is a maximum nearly 3,400 local jails in the United are, after all, going to have prisons .during security prison, prisoners are unable to States. Last year alone over $65 BILLION my lifetime and that of my children and go beyond the perimeter security without was spent in the industry. The local jail my grandchildren. On the opening day of escort. From'the beginning, prisoners market is very lucrative! Jails are BIG this conference, Supreme Court Justice have been inv61ved in meetings with staff BUSINESS!!" (Emphasis in the original.) Krishna Iyer led us into a discussion of to develop rules and regulations for the the importance of humanization. So long functioning of the prison. All are required The Business ofPunishment as we have jails and prisons let us at least to work and are paid wages. The local Christie has said that we are all in the try to prevent too much damage to the bank opened a branch inside the prison business of inflicting pain. Every sanction inmates. Let us have them function as where prisoners take care of their own in the criminal justice system involves the funds and banking needs. The local gro­ infliction ·of pain-a little, a moderate cery maintains a market in the prison amount, or a great deal of pain, but where prisoners shop for and buy their always pain. I have visited hundreds and food. Each of the housing units has a hundreds of jails and prisons in more kitchen and dining room area where pris­ than a dozen countries, most recently in oners prepare their own food. The prison Eastern Europe. They all hurt people. administration itself does not involve itself All of the above leads me to a series of in this at all. The whole object, of course, questions. How can we be in the business is to require prisoners to do what they of inflicting pain at the tail end of a crimi­ would have to do for themselves when ' nal justice system that we know is unfair, they reenter the free world, rather than that treats people differently because of much like the outside free world as possi­ have the prison do everything for them race or economic status? Can we do bet­ ble. Recognizing that there are vast social, and have them become institutionalized. ter, can we cure the problem of bad jails political, and economic differences About six or seven years ago I invited and prisons? I think not. Not unless and between different countries, let me Governor Andersen to the United States to until we do something about the larger describe one effort: participate in a conference that we were problems of society, the ineqUities, the In the early 1970s in Denmark, it was sponsoring. In connection with that visit he racism, the classism. No small task! decided to develop an experimental accompanied me to a meeting of the In most societies a small group of peo­ prison in the town of Ringe on the island American Bar Association's Sentencing and ple have most of the power. This small of Fyn. The first governor of this prison, Corrections Committee. He made a presen­ group, in order to maintain that power, Eric Andersen, was given a very free hand tation to that group describing the prison at appears to need an underclass -largely in its design. As a result of those early Ringe, and was subsequently asked about made up of the poor and people of color. decisions and plans, Ringe today holds the cost and the recidivism rates. Andersen One of the ways the people who have the prisoners who are between the ages of 18 acknowledged that it cost a little more than power keep it is through their system of and 25, who are recidivists, have sen­ the normal maximum security prison in punishment, or the threat of it. tences of two years or more (which is Denmark because of its still experimental If we all agree, as I think we must, that long in the Danish system) and must have nature (although today it is no longer an our current system of criminal justice is had behavioral problems or disciplinary experiment and many of the innovations at grossly unfair, inequitable and treats peo­ problems in the prior incarcerations-in Ringe are utilized throughout the Danish ple differently based upon impermissible other words, difficult prisoners. Not only prison system). Andersen said that recidi­ criteria-race, wealth, class, access­ is Ringe co-ed, but women prisoners who vism was not really the point for them; their then we must also agree that we have no have babies are allowed to keep them with first desire was to stop making prisoners system of justice at all. Justice implies them in the prison, subject to the war­ worse, and that rehabilitation, so-called, equality of treatment, indeed, justice den's approval, up to age three. would have to take place in the community requires equality of treatment. If that is The prison at Ringe is small-six sepa­ itself. At that point a member of the true, then we have to ask whether a soci­ rate units of 16 prisoners each for a total Committee, a judge from Denver asked, "If ety is justified in imposing any punish­ of 96. Each housing unit is a self-con­ it doesn't work better or cost less, why do ment or pain as part of a system or tained unit. In the hiring of staff, Ander­ you do it"? Anderson paused, looked over process that is so fundamentally flawed. sen had only two requirements. First, his glasses and said, "Decency, human We can debate and disagree about they must never have worked in a prison decency. Isn't that enough?" whether a particular prison practice or a before; that way they were more free of What I hope we will all take away from particular action or inaction in a correc­ preconceived notions or biases. Second, this conference is the importance, at all tional setting is a violation of human rights they must be experienced carpenters or times, in our work of remembering those or international law or the Constitution of a cabinet makers. One of Andersen's words and letting those words gUide our particular country. There can be no dis- desires was to eliminate the distinction every action.•

THE NATIONAL PRISON PROJEG JOURNAL SUMMER 1994 17 hysteria and panic. Now administrators .. mic schools. It's a good idea because it An Interview with see HIV/AIDS as a continuing issue. Ot~ef. brings in outside expertise. With this higher Theodore Hammett changes include a decline in systems level of expertise prisoners almost inevi­ practicing segregation and mandatory tably receive better care. In terms of educa­ testing. There was a sharp jump in man­ tion and support,'! think the ACE program datory testing between 1986 and 1988, at Bedford Hills is good. There are now a but it has been level since number of peer-based pro­ 1989. In fact, the number grams that bear replication. ince 1986, the National Institute of of states practicing manda­ JW: What are the biggest Justice (NIJ) publication, HIV/AIDS tory testing didn't change challenges in the correc­ Sin Correctional Facilities, has been between 1991 and 1992. tions and HIV/AIDS field? the only national review of policies on the The real change has been TH: I think that achieving correctional management of prisoners with in the nature of the debate better quality of care in HIV/AIDS. I recently spoke with Theodore surrounding mandatory prison and providing conti­ Hammett, senior researcher at Abt Asso­ testing. The old argument nuity of care after release ciates and principal author of the annual was that mandatory testing are the key challenges. Update to the NIJ publication. We spoke was part of preventing There needs to be much about the Update and changes in the field. transmission. Now the more use of condoms and JW: How did the Update begin, and how argument is framed in bleach. I understand it is a do you actually go about gathering the in­ terms of identifying people difficult position for admin­ formation? for early treatment. Theodore Hammett, istrators to take because it TH: The study was initiated after NIJ There has also been an author of HIV/ AIDS in condones behavior which is began receiving calls from prison sys­ increase in linkages with Correctional Facilities. against institutional rules. tems concerning the management of academic institutions for medical care, But the countervailing argument that it prisoners with HIV/AIDS. Most systems participation in clinical trials, and med­ occurs is very important. Bleach is anoth­ had no idea what to do. Based on this ical parole or compassionate release pro­ er, more difficult issue. We've already lack of knowledge, NIJ initiated a nation­ grams. We continue to see a higher rate seen some facilities with de facto policies al survey to learn what policies were of HIV infection in women prisoners than regarding access to bleach. But the day emerging. Abt Associates was selected to in men. I think services for women in we see needle exchanges in correctional contract the survey and the American prison have lagged behind somewhat. A facilities is very far off, if ever. Correctional Association (ACA) was lot more needs to be done in that area. JW: What, in your own research, has enlisted as a co-sponsor. Since 1986 the JW: Does the Update function beyond shown you the most effective ways of reports have been published yearly. The being a statistical analysis? handling the care and management of Centers for Disease Control have TH: I hope it does. The response to the prisoners with HIV/AIDS in correctional reviewed drafts since the survey began Update has continued to be very positive. facilities? and, with the 1992 Update, have joined Not just as a statistical series, but to show TH: I think that as the World Health NI] as a sponsor. examples of innovative programs and of Organization guidelines point out, we Historically, tb.e survey has been sent to the pros and cons of certain policies. The should strive to achieve a standard of care state departments of corrections. This Update has also been helpful in formulat­ comparable to the community, as much as year we are also sending an abbreviated ing policies in certain systems. possible. This means no mandatory test­ survey to 50 state correctional facilities, JW: Are there any particularly innova­ ing, no segregated housing, aggressive the idea being to compare what they say is tive programs for prisoners with HIV/ encouragement for people to test, and happening with what is actually happen­ AIDS? educational programs. There also needs ing. We also include information from site TH: The 1992 Update includes a seg­ to be intensive psycho-social care and visits to a variety of correctional facilities. ment on a two-year-old program in Rhode peer support programs. And finally, we Sites are chosen that have interesting poli­ Island that provides a continuity of care need much better discharge planning for cies or severe problems. model. Doctors from Brown University prisoners to be able to access care on JW: What have been the most significant provide medical care, counseling, and dis­ the outside. • changes in the care and management of charge planning for prisoners with prisoners with HIV/AIDS since the first HIV/AIDS, and follow-up care upon "1992 Update: AIDS/HIV in Correctional report in 1986? release. With this type of program more Facilities" is available free. Call1-800­ TH: There have been a number of than medical records are passed on­ 732-3277. changes. First, there has been a change in prisoners retain the same provider. There the mentality of the correctional adminis­ seem to be an increasing number of facili­ Jackie Walker is the Project's AIDS trators. In the beginning there was more ties arranging for medical care with acade- information coordinator.

18 SUMMER 1994 THE NATIONAL PRISON PROJECT JOURNAL ublications

Bibliography of Material. on 1990 AIDS in Prison _--L__ Women in Prison .. _---'----_ Bibliography lists resources lists information on this supiect on AIDS in prison that are available from the National Prison available from the National Prison Project and other sources Pr()ject and other sources, concerning health care, drug including corrections policies on treatment, incarcerated mothers, ,AIDS, educational materials, juveniles, legislation, parole, the medical and legal articles, and death penalty, sex discrimination, recent AIDS studies. $5 prepaid race and more. 35 pages. $5 from NPP.' prepaid from NPP. _---'----_ AIDS in Prisons: The Facts _~_ APrimer for Jail Litigators for Inmates and Officers is is a detailed manual with practical a simply written educational tool suggestions for jail litigation. It for prisoners, corrections staff, includes chapters on legal analy­ and AIDS service providers. The The National Prison sis, the use of expert witnesses, booklet answers in an easy-to­ Project JOURNAL, $30/yr. class actions, attorneys' fees, en­ read format commonly asked $2/yr. to prisoners. forcement, discovery, defenses' questions concerning the proof, remedies, and many prac­ meaning of AIDS, the medical The Prisoners' Assistance tical suggestions. Relevant case treatment available, legal rights, Directory, the result of a citations and correctional stan­ and responsibilities. Also national survey, identifies and dards. 1st Edition, February 1984. available in Spanish. Sample describes various organizations and 180 pages, paperback. (Note: This copies free. Bulk orders: 100 agencies that provide assistance is not a "jailhouse lawyers" manu­ copies/$25. 500 copies/$100. to prisoners. Lists national, state, al.) $20 prepaid from NPP. 1,000 copies/$150 prepaid. and local organizations and sources of assistance including _~_ TB: The Facts for Inmates (order ACLU Handbook, The legal, AIDS, family support, and and Officers answers from Rights of Prisoners. Guide to ex-offender aid. 10th Edition, pub­ commonly-asked questions about ACLU) the legal rights of prisoners, lished]anuary 1993. Paperback, tuberculosis (TB) in a simple parolees, pre-trial detainees, etc., $30 prepaid from NPP. question-and-answer format. in question-and-answer form. Discusses what tuberculosis is, Contains citations. $7.95; $5 for The National Prison Project how it is contracted, its symp­ prisoners. ACLU Dept. L, P.O. Box -~- Status Report lists by state toms, treatment and how HIV QTY. COST 794, Medford, NY 11763. those presently under court order, infection affects TB. Single copies or those which have pending free. Bulk orders: 100 copies/ litigation either involving the $25.500 copies/$100. entire state prison system or 1,000 copies/$150 prepaid. major institutions within the state. Lists cases which deal with overcrowding and/or the total conditions of confinement. (No jails except District of Columbia.) Updated]anuary 1994. $5 prepaid QTY, COST from NPP.

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THE NATIONAL PRISON PROJECT JOURNAL SUMMER 1994 19 ------_.----- he following are major develop­ Medical care at the prison is inadequate. ,." describes the serious fire danger to the ments in the National Prison Prisoners are required to pay a fee to . prisoners who are held on the third floor TProject's litigation program since obtain medical care, and to purchase their of a three-story building where the only March 31, 1994. Further details of any of own over-the-counter medications. They exit is a locked stairway. Medical and the listed cases may be obtained by writing must also pay for personal hygiene items, mental health care\is grossly inadequate. the Project. reading and writing materials, and postage Mentally ill prisoners do not receive prop­ and phone calls, although most receive no er treatment and are housed with the gen­ Farmer v. Brennan-The Supreme state pay. The lawsuit also alleges that the eral population. Court of the United States issued a unani­ special housing units (condemned men's mous opinion on June 6 reversing and unit, and disciplinary and administrative Anderson v. Orr-The NPP has asked remanding a lower court decision dismiss­ segregation) subject prisoners to a system the District Court in Indiana to find the ing a prisoner's case. The Supreme Court's of "terror, deprivation and isolation." Department of Corrections in contempt of decision allows Dee Farmer, a pre-opera­ Other issues include inadequate access to the court-approved agreement reached in tive transsexual who was beaten and raped the law library, lack of proper winter 1989 concerning conditions at Westville at USP-Terre Haute, to take her case back clothing, and visitation hardships caused Correctional Center (WCC). That agree­ to the lower courts. For a detailed analysis by prison lockdown policies. ment provided for a comprehensive health of this case, see Case Law Report, page 6. care service program and sweeping Carty v. Farrelly-In a complaint filed reforms in the psychiatric unit. Defen­ llick v. Miller-A class action lawsuit in June, the NPP seeks relief from uncon­ dants have never fully complied with all filed in May on behalf of inmates at Ely stitutional conditions for men and women, the conditions of the settlement, and in State Prison (ESP), Nevada, alleges that both sentenced and pre-trial, held at the the last year the level of medical and psy­ "an atmosphere of terror and violence" Criminal Justice Complex (CJC) on St. chiatric services has deteriorated signli­ pervades ESp, resulting directly from Thomas in the U.S. Virgin Islands. For cantly. Instead of providing close supervi­ improper training, supervision and disci­ almost two years, the prisoners have been sion and intense treatment, extended use pline of correctional staff at this remote locked up for 23 hours a day in over­ of physical restraints and seclusion con­ facility. The lawsuit alleges excessive use crowded, filthy cells infested with rats and tinue as the treatment of choice for the of force including "frequent and systemat­ roaches. They are allowed out for only a mentally ill, with poor monitoring of med­ ic beatings, the intimidating use of dogs, short period each day to shower and for ication. For the general prison population use of taser guns, chemical gas, electrified an hour of recreation twice a week. Cells at WCC, the number of psychiatric and batons (cattle prods), nova (electrified) designed for one person are being used to general medical staff has not been in­ shields, and shotguns." It also challenges house four or five, with mattresses on the creased to the levels promised in the ESP:s "shoot to wound" policy. Prisoners floor which are frequently soaked by mal­ agreement. Prisoners, including the indi­ report being shot at for failure to obey functioning, overflowing toilets. The gent, are instructed to buy over-the­ orders to disperse, and even for "stepping drinking water, recycled from the show­ counter medications without any clinical out of line" on the way to the dining room. ers, is contaminated. The complaint assessment of their condition.•

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