A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 8, NO.1, WINTER 1993 • ISSN9748-2655

\ Odyssey: APrison Magazines DifficultJourlney shape their content by viewing everything lasting impact on the interpretation of in the context of security. In short, they prisoners' First Amendment rights was exercise censorship. brought in July of 1988 by Dannie Martin merica has a long tradition of prison To make matters worse, the Supreme and the San Francisco Chronicle. Martin, journalism. For more than a century, Court and the lower federal courts have a prisoner at the U.S. penitentiary in Aprisoners have established journals consistently weakened prisoners' First Lompoc, California at the time, had written to communicate their interests within the Amendment rights during the past 10 more than 40 articles under his byline prisons and to carry their voices into the years. In Turner v. Safley! for example, during a two-year period for the San community. Despite the hundreds of jour- the Court established that "...censored Francisco Chronicle, openly and without material must objection by Federal Bureau of Prisons offi­ bear a reason­ cials. When he wrote an article describing able relationship rising tensions in Lompoc and criticizing to security." the policies of the new warden, he was • Although the placed in solitary confinement and hastily court did affirm transferred to a federal prison in Phoenix. that prisoners Martin was charged with violating prison have First regulations because he had "acted as a Amendment reporter and published under a byline" and rights, the practi­ because he had "conducted a business." cal effect of the In an opinion delivered by federal dis­ ruling was to trict court judge Charles A. Legge in June grant correction- 1990, Martin's writings were praised for '" al officials broad their "educational and entertaining" quali­ ~ ;.=: latitude to cen- ties. Legge went on to note that prisoner "E sor or ban read- writing is a "healthy use of -g ing material or time, ...appears to be worth­ a writings by pris­ while for educational ~ oners based on reasons, [and] ...could ~ prison officials' provide a good role ~ definition of model for other -D security. Free prisoners." ..g speech would be Luke Janusz, editor and publisher of Odyssey. subject only to passive review nals that have been created, these goals by the courts. have often been frustrated because the real In Thornburgh v. Abbott,2 the "reason­ concerns prisoners wish to communicate able relationship" standard was reaffirmed are all too often censored by prison for censorship of publications sent to pris­ administrations. Itwould be more accu­ oners. The Court ruled that a regulation rate, therefore, to speak of prison journal­ prohibiting publications that are "...deter­ ism as an unfulfilled aspiration. mined [to be] detrimental to the security, Prison journalists confront formidable good order, or discipline of the institution obstacles in their work. Ownership is the or...might facilitate criminal activity" is not fundamental area of contention. Prisoners unconstitutional. The obvious and trou­ naturally view their creative expressions bling question raised by this ruling is­ as belonging to them; conversely, prison who will determine what is detrimental? administrators view the journals as The lawsuit that has generated the great­ belonging to the prison, and attempt to est interest and perhaps will have the most The judge then reasoned that"...as long representative body, had elected me to cre­ basic premise the magazine began to take as prison security is a valid interest, the ate a meaningful voice for prisoners. The on a will and purpose of its own. We strove order of priority of the penological inter­ prison authorities, however, were content for solutions that would benefit victims of ests is for the Bureau of Prisons and not with the prevailing pretense. My nomina­ crime, taxpayers, prisoners, and correc­ for this court to decide." tion as editor was rejected by prison offi- tional officials simultaneously. We per­ Referring to the critical issue of balanc­ ceived that Odyssey's significance tran­ ing the public's right to know with prison scended prison or criminal justice issues security, Legge said, "These are questions in that we were attempting to develop a which are not within the power of this model for collective problem-solving that court to decide. They are for the Bureau of would apply to all social problems. Prisons to decide." Prison security forces moved swiftly in In effect, the judge forfeited the authority cials because in their estimation, I lacked response to our plans. Within three and power of the judiciary to interpret and a "significant amount of responSibility," all months of my apI\ointment as editor, I was enforce the First Amendment rights of pris­ administrative phrase that meant that I was placed in "the h()le" (solitary confine­ oners and granted it to prison officials. not a cooperative inmate. After a protract­ ment) for allegedly organiZing a hunger The decision is under appeal to the Ninth ed battle that included legal action, the strike. The disciplinary report referred to Circuit Court of Appeals. superintendent intervened and approved me as a "silent leader." During my ten Legge's strained and contradictory legal me for the position. weeks in isolation, the organizational plan "reasoning" is symptomatic of the attitude The newspaper staff convened a closed for Odyssey!s future was conceived. The of a federal judiciary that is consistently door meeting. The Question Mark did not intervention of the security forces con­ reactionary with respect to prisoners' survive that meeting. Our task was to trans­ firmed that the only way a prison magazine rights. Seventy percent of all federal judges form a 12-page collection of random notes can survive is for prisoners to establish an currently sitting were appointed either by into a 120-page quarterly magazine. Our independent financial and production base Reagan or Bush, and many of them were goal was to reclaim the press from the pri­ outside prison walls. I drafted a proposal distingUished by their sterling record of son administration; any association with the that incorporated these ideas and mailed it contempt for prisoners' rights. former journal, either in name or in sub­ to a group of journalists, educators, and State prison officials, however, are also stance, would compromise our efforts and prisoners' rights activists. subject to the jurisdiction of the state undermine our credibility as journalists. After a core group was formed, we filed courts and must contend with judges who The identity of the magazine took shape (cont'd on page 21) may have a greater respect and apprecia­ during the next few weeks. We chose the tion for prisoners' First Amendment rights. name Odyssey for the magazine because it In addition, state judges are in a position reflected the essence of the prison experi­ to apply their state constitutions and are ence-the journey home. not completely bound by the Turner stan­ Defining goals and developing a strategy dard. Prison administrators at the state for Odyssey was more of a process of evo­ level, therefore, are reluctant to justify lution than a predetermined plan. We their actions in court because much of began with a few fundamental ideas and what they wish to censor has less to do strong convictions based on many years of Editor: Jan Elvin . with security than ideology. incarceration. We wanted Odyssey to Editorial Asst.: Betsy Bernat

Prison administrators invariably assert establish a forum where prisoners could Alvin J. Bronstein, Executive Director their "right" to control the financial man­ express their views about criminal justice The National Prison Project of the agement of the journal. Under the pretext issues in open exchange with members of American Civil Liberties Union Foundation of fiscal management, they ultimately the broader community. By publishing 1875 Connecticut Ave., NW, #410 determine everything from the size of the innovative research and creative articles by Washington, DC 20009 (202) 234-4830 FAX (202) 234-4890 publication to the production schedule. prisoners, correctional offiCials, legisla­ Without financial autonomy, prison pub­ tors, victims of crime, and others who may The Nafianal Prison Project is a tax-exempt foundation­ lications must rely on the institution's pro­ influence criminal justice policy, we funded proiect of the AClU Foundation which seeks to strengthen ond protect the rights of adult and juvenile duction facilitieS', and access to the pro­ believed that Odyssey would promote a offenders; to improve overall conditions in correctional duction facilities is regulated according to dialogue that would lead to greater under­ facilities by using existing administrative, legislative and the dictates of "security." As a result, most standing about the problems of crime and judicial channels; and to develop alternatives to incarceration. prison journals become either extensions of punishment in our society. The reprinfing of JOURNAL material is encouraged with the warden's public relations department or Becoming a meeting place for ideas and the stipulation that the Nafional Prison Proiect JOURNAL be credited with the reprint, and that a copy of the reprint token efforts without funding or support. debate seemed to be an obvious starting be sent to the editor. They may feature articles about sports, point. We soon discovered that it was any­ The JOURNAL is scheduled for publicafion quarterly by entertainment, social events, and perhaps thing but obvious. Searching in vain for a the National Prison Project. Materials and suggestions some innocuous political commentary for magazine that could serve as a model, we are welcome. appearance's sake. Continued favor with the learned instead that virtually all criminal prison administration is purchased by pro­ justice publications are characterized by ducing a journal that retreats from the real exclusion and special interest agendas. The NPP JOURNAL is available on 16mm concerns and problems facing prisoners. Competing ideologies have replaced a microfilm, 35mm microfilm and 105mm This was the condition of The Question healthy debating of ideas. microfiche from University Microfilms Mark journal at Norfolk State Prison [in We were offering to build a forum to International, 300 North Zeeb Rd., Ann Massachusetts] when I became editor in encourage diverse opinions and to chal­ Arbor, MI 48106-1346. 1989. The prison population, through its lenge established ideologies. From this

2 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL The monitorship was dissolved in 1991, but ·Status Report: State Prisons and the plaintiffs continue to evaluate compli­ ance. On June 29, 1992, acting on the defen­ the Courts - January 1, 1993 dants' motion under Fed.R.Civ.P. 68, the dis­ trict court entered an order on conditions and double-ceiling with respect to Soledad and DVI. The California Men's Colony at San Luis '~ Obispo is under a court order establishing orty states plus the District of Columbia, 75-185 PHXCAM (D. Ariz.). Aspecial aqmln" population limits. Dohner v. McCarthy, 635 Puerto Rico, and the Virgin Islands are istrative-segregation unit at the Arizona',~tate F.Supp. 408 (C.D. Cal. 1985). However, com­ Funder court order or consent decree to Prison in Florence was operating undet;,a pliance monitoring has ceased. limit population and/or improve conditions December 12, 1985 consent decree. Amoni­ The CaliforrNa Institution for Men at Chino in either the entire state system or its major tor was appointed. Black v. Ricketts, C.A. No. is operating m,fder a settlement agreement facilities. Thirty-two jurisdictions are under 84-111 PHXCAM. The unit was later found to providing fQ.J;jmproved sanitation, classifica­ court order for overcrowding or conditions be in full compliance with the consent tion, legal access, and other conditions. in at least one of their major prison facilities, decree, and Black was dismissed in February Compliance monitoring has ceased. Boyden while 11 jurisdictions are under court order 1988. v. Rowland, CV-86-1989-HLH. covering their entire system. Only four states Astatewide class action, filed on behalf of The California Medical Facility at Vacaville have never been involved in major litigation Arizona prisoners on January 12, 1990, chal­ is under a 1990 consent decree concerning challenging overcrowding or conditions in lenges legal access, health care, and discrim­ the delivery of health-care and psychiatric their prisons. The following list gives the cur­ ination against handicapped prisoners. Casey services, including housing and programming rent status of each state. (* Asterisks indicate v. Lewis, CIV-90-0054 PHXCAM (D. Ariz.). for HIV-infected inmates. Compliance is states/jurisdictions in which the ACLU has Partial summary judgment for plaintiffs was being monitored. Gates v. Deukmejian, #S­ been involved in the litigation.) entered in August 1991 enjoining discrimina­ 87-1636-LKK-JFM (E.D. Cal.). See also 977 1. Alabama:* The entire state prison sys­ tion against HIV-positive prisoners in job F.2d 1300 (9th Cir. 1992) (attorney fees). In tem was under court order dealing with total assignments. The State has appealed. Trial on 1992, plaintiffs filed a contempt motion con­ conditions and overcrowding. Pugh v. Locke, the remaining issues occurred in 1991-1992; cerning the staffing requirements of the 406 F.Supp. 318 (M.D. Ala. 1976), aJj'd in plaintiffs are awaiting a decision on the order. Amagistrate judge filed a report on this substance sub nom. Newman v. Alabama, health-care and handicapped-access issues. issue·, and the district judge ordered limited 559 F.2d 283 (5th Cir. 1977), rev'd in part On November 13, 1992, the district court further relief. (Order entered Apr. 3, and remanded sub nom. Alabama v. Pugh, entered a decision favorable to prisoners on 1992). 438 U.S. 781 (1978). Areceiver was appoint­ the legal-access issues. Two lawsuits concern the delivery of med­ ed. 466 F.Supp. 628 (M.D. Ala. 1979). In 4. Arkansas:* The entire state prison ical and mental health services to prisoners January 1983, the district court entered an system was under court order dealing with at the California Women's Institution at order establishing a four-person committee total conditions. Finney v. Arkansas Board Frontera. Whisman v. McCarthy, #OCV­ to monitor compliance with previous orders. ojCorrection, 505 F.2d 194 (8th Cir. 1974). 33860 (Superior Court, San Bernadino In December 1984, the district court relin­ Aspecial master was appointed. Finney v. County) and Doe v. California Department qUished active supervision after the parties Mabry, 458 F.Supp. 720 (E.D. Ark. 1978). ojCorrections, A-Civ.-89-598-GLT (C.D. agreed that substantial compliance had been Compliance was assessed in 1982. 534 Cal.). In Whisman, a settlement was reached achieved. The court dismissed the case in F.Supp. 1026 (E.D. Ark. 1982); 546 F.Supp. in May 1992, in which the parties agreed to a December 1988. 626 (E.D. Ark. 1982). After a finding of full state DHS inspection and to correct problems 2. Alaska:* The entire state prison sys­ compliance, the federal court relinquished with inadequate treatment and care identified tem is under a consent decree and a court jurisdiction in August 1982. 546 F.Supp. 628 by this inspection. Doe deals with the treat­ order entered in 1990 dealing with over­ (E.D. Ark. 1982). ment of HIV- positive prisoners at CW!. crowding and total conditions of confine­ 5. California:* The administrative-segre­ Discovery continues. Substantial changes ment. Cleat]. v. Smith, No. 3AN-81-5274 gation units at San Quentin, Folsom, Soledad have occurred in the DOC policy that have (Superior Court, 3rdJud. Dist.) (complaint and Deuel (DVI) are under court order due changed the posture of the case. filed March 3, 1986). The parties agreed to to overcrowding and conditions. Aprelimi­ In 1990, a lawsuit was filed challenging population caps at each facility and a mecha­ nary injunction was entered. Toussaint v. conditions, violence, and the delivery of nism to reduce the population when a cap is Rushen, 553 F.Supp. 1365 (N.D. Cal. 1983), health-care services to prisoners at the exceeded. The parties contemplated that the aJj'd in part sub nom. Toussaint v. Yockey, State's new "supermax" facility at Pelican mechanism would remain in effect until the 722 F.2d 1490 (9th Cir. 1984). The district Bay. Madrid v. Gomez, C-90-3094 (N.D. state legislature approved an emergency­ court thereafter entered a permanent order Cal.). Aclass has been certified and discov­ overcrowding reduction statute. By October enjoining double-ceiling and other condi­ ery is ongoing. 1992, the legislature failed to pass such legis­ tions at the San Quentin and Folsom units. 6. Colorado:* The state maximum-secu­ lation, the DOC failed to reduce the popula­ Toussaint v. McCarthy, 597 F.Supp. 1388 rity penitentiary at Canon City is under court tion at the six largest prisons, and the State (N.D. Cal. 1984). The court of appeals order on total conditions and overcrowding. filed for relief from the order. reversed on the issues of placement and Ramos v. Lamm, 485 F.Supp. 122 (D. Colo. 3. Arizona:* The state penitentiary is retention in administrative segregation. 801 1979), aJj'd in part and remanded, 639 operating under a series of court orders and F.2d 1080 (9th Cir. 1986), cert. denied, 481 F.2d 559 (10th Cir. 1980), cert. denied, 450 consent decrees dealing with overcrowding, U.S. 1069 (1987). Amonitor was appointed U.S. 1041 (1981), on remand, 520 F.Supp. classification, and other conditions. Orders, to oversee compliance. Toussaint v. 1059 (D. Colo. 1981). During the compli­ August 1977-1979, Harris v. Cardwell, CIV- Rowland, 711 F.Supp. 536 (N.D. Cal. 1989). ance stage, the parties reached a series of

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 3 Overcrowding plagues nearly all u.s. prisons. Here, 160 inmates are housed in the gym of California's jam-packed Mule Creek State Prison. agreements later approved by the court con­ Compliance is being monitored in this case. pliance. Class notice of this modification has cerning general conditions, as well as specif­ Litigation challenging violence and over­ been ordered. ic areas such as legal access, double-bunk­ crowding is pending at the state prison at Aconsent decree was entered on December . ing, and treatment of HIV-infected prisoners. Somers, Bartkus v. Manson, Civ. No. H-80­ 17, 1987 in Costello concerning health-care On this last issue, see Diaz v. Romer, 961 506, and at the Montville Correctional Center, services. In 1991, the parties negotiated to F.2d 1508 (10th Cir. 1992). Foss v. Lopes. In Bartkus, the parties have end court supervision of the health-care Alawsuit filed on February 27,1990 chal­ been engaged in settlement negotiations. order by turning over monitoring and lenges conditions and delivery of health-care 8. Delaware:* All major Delaware pris­ enforcement to the CMA. services at three other major state facilities ons are under a consent decree filed in state 10. Georgia: The state penitentiary at (Buena Vista, Fremont, and the women's court on issues of overcrowding, physical Reidsville is under court order on total condi­ prison). Nolasco v. Romer, 90-C-340 (D. plant, medical care, and access to the courts. tions and overcrowding. Aspecial master was Colo.). In 1992, the parties reached a com­ Dickerson v. Castle, C.A. No. 10256 (Del. appointed in 1979, and dismissed in 1983, prehensive settlement on all of the issues. Chan.)(order entered Nov. 22, 1988). On Guthrie v. Evans, C.A. No. 3068 (S.D. Ga.). The district court approved this agreement in December 7, 1992, a supplementary agree­ The case was closed in 1983, but the injunc­ June 1992. 801 F.Supp. 405 (D. Colo. 1992). ment on overcrowding and tuberculosis con­ tion remains in effect. The order requires sin­ 7. Connectlcut:* The Hartford trol was approved by the court. gle-ceiling, improvements in the medical and Correctional Center is under court order 9. Florida: The entire state prison system mental health care-delivery systems, and dealing with overcrowding and some condi­ is under court order dealing with overcrowd­ improvements in environmental health, among tions. Lareau v. Manson, 507 F.Supp. 1177 ing. Costello v. Wainwright, 397 F.Supp. 20 other things. Anumber of other state facilities (D. Conn. 1980), afj'd in part, modified, (M.D. Fla. 1975), affd, 525 F.2d 1239 (5th have come under challenge. and remanded, 65lF.2d 96 (2nd Cir. 1981). Cir. 1976), and 553 F.2d 506 (5th Cir. 11. Hawaii:* The men's prison (O.C.C.C.) Other facilities under consent decree are 1977). In 1980, the court entered a consent in Honolulu and the women's prison on Oahu Bridgeport Correctional Center, Mawhinney decree providing measures foc population are under court order as a result of a 1985 v. Manson, #B78-251 (D. Conn. 1982); New control. 489 F.Supp. 1100 (M.D. Fla. 1980). consent decree entered in a totality- of-condi­ Haven Correctional Center, Andrews v. Aspecial master was appointed. Additional tions suit. Spear v. Ariyoshi (now Spear v. Manson, #N81-20 (D. Conn. 1982); the . consent decrees were entered covering envi­ Waihee) , Civ. No. 84-1104 (D. Haw.) . Morgan Street Correctional Center; and the ronmental health and safety. In 1992, the Monitors were appointed and continue to Union Avenue Correctional Center. parties agreed that the standards and terms of assess compliance with the court decree. The Niantic Women's Prison is under a court the population order would be embodied in a parties have been engaged in further negotia­ order on a full range of women's prison state statute and that the Correctional Medical tions with a view toward modifying the decree issues. West v. Manson, #H-83-366 (D. Authority (CMA) , an independent state-fund­ to reflect current conditions more accurately. Conn.) (order entered Oct. 3, 1984). ed agency, would monitor and enforce com- 12. Idaho:* The men's Idaho Correctional

4 WINTER 1993 THE NATIONAL PRISON PROJEG JOURNAL ~ .State Institution is under a court order con­ (1984). The state prison at Westville is under F.2d 418 (10th Cir. 1992) . II cerning conditions. Balla v. Idaho State a consent decree on overcrowding, condi­ 17. Kentucky:* The Kentucky State I Board ofCorrections, 595 F.Supp. 1558 (D. tions, and delivery of mental health services. Penitentiary (KSP) at Eddyville and the I Idaho 1984). In 1987, incident to Balla, the Anderson v. Orr, C.A. No. S83-0481 (N.D. Kentucky State Reformatory (KSR) at district court held that the prison was uncon­ Ind.)(case filed in 1983). Acomprehensive LaGrange were under court order by virtue of stitutionally overcrowded and ordered popu­ settlement was reached on March 31, 1989. a consent decree on overcrowding and some lation reductions. 656 F.Supp. 1108 (D. Compliance is being monitored. ·'t conditions, including guard brutality. Idaho 1987). The court of appeals upheld the In June 1990, a case was filed challenging Kendrick V. Bland, 541 F.Supp. 21 (W.D. Ky. district court decision rejecting defendants' conditions and delivery of health-care ser';-' 1981). The court of appeals later vacated attempt to obtain more time to reduce the vices to prisoners confined at Indiana's; .. some requirements of the order related to the population, among other things. 869 F.2d reception-and-classification facility. Le'qr:lier brutality issue. 740 F.2d 432 (6th Cir. 1984). 461 (9th Cir. 1989). V. Bayh, IP90-1460-C (S.D. Ind.). After"con­ The district court found the defendants in The women's prison is operating under an ducting discovery, the parties reached a com­ substantial co\npliance with the consent interim agreement signed in July 1991 con­ prehensive settlement. Aconsent order was decree, with-the exception of new-construc­ cerning conditions, including overcrowding entered on July 5,1991. Compliance is being tion requiretrients. As a result, the case was and medical care; the agreement will remain monitored. placed on the inactive docket of the court, a in effect until the DOC opens a new facility. On May 4, 1992, prisoners at the Maximum decision affirmed by the court of appeals. Witke v. Crowl, Civ. No. 82-3078 (D. Idaho). Security Complex at Westville (the State's so­ However, that court held that the district Compliance is being monitored. Once the called "supermax") brought an action in court could reinstate the case if plaintiffs new facility is operational, the previous state court challenging placement and condi­ could prove "a major violation" of the agreements reached in this case concerning tions. Taifa V. Bayh, #49-DO-7-9205-CP-489 decree. Kendrick V. Peters, 931 F.2d 421 programming, delivery of medical care, and (Superior Court, Marion County). The State (6th Cir. 1991). On February 24, 1992, the legal access will continue to apply. had the case removed to federal court. Taifa district court, with respect to KSP, relin­ 13. Illinois:* The state penitentiary at V. Bayh, #S-92-429M (N.D. Ind.). The federal qUished jurisdiction and dismissed the case. Menard is under court order on total condi­ court remanded the state-law claims to the With respect to KSR, the court retained juris­ tions and overcrowding. Aspecial master, state court. Discovery is in progress. Asettle­ diction until all construction is completed appointed in 1980, was discharged after four ment conference on both lawsuits has been and as long as major violations of the decree years. There has been substantial compliance scheduled. do not occur. with the decree; however, the injunction 15. Iowa: The Iowa State Penitentiary at The women's prison, KCIW at Pee Wee ­ remains in force. Lightfoot V. Walker, 486 Fort Madison is under court order on over­ Valley, was under court order on a variety of F.Supp. 504 (S.D. Ill. 1980). crowding and a variety of conditions; howev­ conditions, including crowding, physical Dwight Correctional Center is under a May er, this decree is not being actively monitored plant, sanitation, access to the courts, pro­ 1990 consent decree that requires programs for compliance. Watson V. Ray, 90 F.R.D. gramming, classification, and work. for women prisoners and the construction of a 143 (S.D. Iowa 1981). Canterino v. Wilson, 546 F.Supp. 174 (W.D. 200-bed minimum-security facility for women. Fort Madison is also under a series of con­ Ky. 1982); Canterino v. United States, 564 Moorhead V. Lane, #86-c-2020 (C.D. Ill.). sent decrees involving the delivery of medical F.Supp. 711 (W.D. Ky. 1983). The district The Stateville facility is under a December care services, McBride V. Ray, #73-242-2 court's order concerning work and study 1990 consent decree, entered by the district (S.D. Iowa), and segregation, Gavin v. Ray, release was vacated by the court of appeals. court, which provides for improved protec­ #78-62-2 (S.D. Iowa), and protective-custody Canterino V. Wilson, 869 F.2d 948 (6th Cir. tion from assault. Calvin R. V. Peters, practices, Parrott V. Ray. These cases are 1989). The district court relinquished juris­ #82C1955 (N.D. Ill.). Acourt monitor has being actively monitored. diction on July 13,1992. been appointed and a classification evalua­ 16. Kansas: Aconsent decree on total 18. Louisiana: The Louisiana State Prison tion by NCCD has been completed. Com­ conditions was entered in 1980 at the state (Angola) is under court order dealing with pliance monitoring continues. The district penitentiary at Lansing. Arney v. Bennett, No. overcrowding and a variety of conditions. court ordered that protective-custody prison­ 77-3132 (D. Kan.). The case was reopened Williams V. Edwards, 547 F.2d 1206 (5th ers at the Stateville facility be provided with and expanded in 1988, and a more compre­ Cir. 1977). In 1981, the court of appeals improved pJ:.ogramming, conditions, and legal hensive order was entered in April 1989. That consolidated all state-prison-overcrowding assistance. Williams V. Lane, 646 F.Supp. order requires the State's oldest facilities to and local-jail-overcrowding cases in 1379 (N.D. Ill. 1986). The court of appeals meet and maintain standards of the American Louisiana before one district court judge. affirmed this decision. 851 F.2d 867 (7th Cir. Correctional Association (ACA) and the This decision included Williams. See 1988), cert. denied, 488 U.S. 1047 (1989). National Commission on Correctional Health Hamilton V. Morial, 644 F.2d 351 (5th Cir. 14. Indiana:* The state prison at Care (NCCHC); the capacities of all other 1981). On December 7, 1983, the district Pendleton was found unconstitutional on total existing or new facilities must meet ACA stan­ judge who was appointed under Hamilton conditions and overcrowding. French v. dards. Apanel of experts is monitoring men­ approved a consent decree dealing with Owens, 538 F.Supp. 910 (S.D. Ind. 1982), tal health treatment. In 1991, the defendants crowding and population problems at Angola. affdin pertinentpart, 777 F.2d 1250 (7th moved for modification of the consent decree In 1989, the judge declared a state of emer­ Cir. 1985), cert. denied, 479 U.S. 817 to permit double-ceiling and to increase gency, appointed a court expert, and request­ (1986). The state penitentiary at Michigan operating capacity due to construction delays. ed that the U.S. Department ofJustice investi­ City is under a court order on overcrowding The court denied modification in two prisons gate. In 1991, the judge appointed a lawyer and other conditions. Hendrix V. Faulkner, that were the focus of this case and granted it for the class of state prisoners; the lawyer has 525 F.Supp. 435 (N.D. Ind. 1981), affd in in other institutions, but only where ACA stan­ been actively involved in monitoring compli­ part, vacated and remanded in part sub dards and other limitations are met. Arney V. ance with outstanding orders in the case. The nom. Wellman v. Faulkner, 715 F.2d 269 Finney, 766 F.Supp. 934 (D. Kan. 1991), case is now entitled Williams V. McKeithen. (7th Cir. 1983), cert. denied, 468 U.S. 1217 affd in part and dismissed in part, 967 See 939 F.2d 1100, 1102 (5th Cir. 1991).

THE NATIONAL PRISON PROJEG JOURNAL WINTER 1993 5 19. Maine:* The State Prison at Thomas­ Judicial Court, Suffolk County). affd, 871 F.2d 1087 (6th Cir. 1989). ton was challenged on overcrowding and a Acase filed against MCI at Concord suc­ The State appealed from various specific variety of conditions in 1978. The trial court cessfully challenged numerous unlawful con­ orders entered in both the Knop and Hadix granted relief on the issue of restraint cells, ditions, including the use of dayrooms for cases. In 1992, the court of appeals, in a con­ and otherwise dismissed the complaint. Lovell housing prisoners. The practices have ceased solidated decision, affirmed on the issues of v. Brennan, 566 F.Supp. 672 (D. Me. 1983), and the State has settled for money damages. liability in not providing adequate legal assis­ affd, 728 F.2d 560 (lst Cir. 1984). jacobs v. Fair, #86-81758 (Superior Court," tance, the provision of winter clothing, and In October 1990, a lawsuit was filed against Suffolk County).,., other matters; it reversed on racial harass­ the state prison at Thomaston concerning 22. Michigan:* The women's prison is ,:,. ment and the denial of access to toilets. Knop conditions, treatment, and placement in the under a court order concerning the total con­ v.johnson, 977 F.2d 996 (6th Cir. 1992). protective-custody and administrative-segre­ ditions of confinement, including program, 23. Minnesota: The State has kept over­ gation units. Brown v. McKernan, #90-246-p mingo Glover v. johnson, 478 F.Supp. lOi$, crowding in abeyance through the use of sen­ (D. Me). In March 1991, the parties reached (E.D. Mich. 1979); further orders entered, tencing guidelin~ that take into account the an agreement to end double-ceiling in those 510 F.Supp. 1019 (E.D. Mich. 1981),affd number of aVaila.ble prison beds. Also, indi­ units and to enhance programming opportu­ without opinion sub nom. Cornish v. vidual facilities a.nd the Department of nities. Compliance is being monitored. johnson, 774 F.2d 1161 (6th Cir. 1985), Corrections have been responsive to com­ 20. Maryland:* The Maryland House of cert. denied, 478 U.S. 1020 (1986). Later, plaints raised by advocates for prisoners. Corrections at Jessup and the Baltimore the Department of Corrections was found in 24. Mississippi: The entire state prison Penitentiary were declared unconstitutionally contempt. 659 F.Supp. 621 (B.D. Mich. system is under court order dealing with overcrowded in, respectively,johnson v. 1987), vacated and remanded, 855 F.2d 277 overcrowding and total conditions. Gates V. Levine, 450 F.Supp. 648 (D. Md. 1978), and (6th Cir. 1988). On remand, the State was Collier, 501 F.2d 1291 (5th Cir. 1974). Nelson v. Collins. 455 F.Supp. 727 (D. Md. required to appoint a special administrator to Compliance is not being monitored. 1978), affdin part sub nom. johnson v. design and implement a remedy for violations 25. Missouri:* The State Penitentiary at Levine, 588 F.2d 1378 (4th Cir. 1978), on of the order. 721 F.Supp. 808 (E.D. Mich. Jefferson City is under court order on over­ remand, Nos. H-77-113 and B-77-116 (D. 1989), affdin part and rev'd in part, 934 crowding, medical care, and other condi­ Md. Jan. 5, 1981), rev'd and remanded sub F.2d 703 (6th Cir. 1991). Subsequently, a spe­ tions. Burks v. Walsh, 461 F.Supp. 454 (W.D. nom. Nelson v. Collins, 659 F.2d 420 (4th cial administrator was appointed, and a com­ Mo. 1978), affd sub nom. Burks v. Cir. 1981) (en banc). Asettlement agreement pliance plan was ordered to be submitted. Teasdale, 603 F.2d 59 (8th Cir. 1979). On and consent decree were subsequently Four men's prisons (Marquette, Michigan remand, the State was held liable for failing tq entered in both cases. Reformatory, Riverside, and a portion of provide adequate medical care. Burks v. In a case against the Maryland Correctional Jackson) are under a consent decree on over­ Teasdale, 492 F.Supp. 650 (W.D. Mo. 1980). Institution at Hagerstown, the district court crowding and other conditions. This case was In 1982, a separate order was entered on the approved a settlement agreement in 1979 that brought by the U.S. Department ofJustice medical care issues. required that double-ceiling be eliminated under the Civil Rights of Institutionalized Afurther complaint has been filed concern­ and certain conditions improved. Washington Persons Act (CRIPA). United States V. ing conditions at the state penitentiary. This v. Keller, 479 F.Supp. 569 (D. Md. 1979). Michigan, 680 F.Supp. 928 (W.D. Mich. complaint includes sanitation, fire safety, and The Washington and johnson cases were 1987). In 1992, the DOJ filed a motion to violence issues. Wilson v. Moore, #87-4516­ later consolidated and further agreements vacate portions of the decree under a new CV-C-5 (W.D. Mo.). In 1992, a class was cer­ were entered in October 1987 and February policy announced by Attorney General William tified; the plaintiffs have begun discovery 1988. Compliance is being monitored. Sub­ Barr. On December 1, 1992, the court dis­ efforts. sequent contempt motions filed in these cases missed some relatively minor portions of the 26. Montana: On November 2, 199Z, a have been resolved by negotiation. decree. Court orders in another case, Knop v. lawsuit was commenced in state court chal­ 21. Massachusetts: The maximum-secu­ johnson, cover issues not included in the lenging the inadequate delivery of medical rity unit at the state prison in Walpole was consent decree in United States v. Michigan. services and the physical abuse of prisoners challenged on total conditions. Blake v. Hall, The Knop court entered orders favorable to confined to the state prison at Deer Lodge. C.A. 78-3051-T (D. Mass.). The district court prisoners on various issues, including the State and federal constitutional claims have decided in the ~rison officials' favor. On provision of legal assistance. Knop v.' been pleaded. Baker v. State ofMontana appeal, this decision was affirmed in part and johnson, 667 F.Supp. 467 (W.D. Mich. 1987) (1stJud. Dist. Ct., Helena). An answer by the reversed in part and remanded, 668 F.2d 52 (merits); 685 F.Supp. 636 (W.D. Mich. defendants is due in January 1993. (lst Cir. 1981), cert. denied, 456 u.s. 983 1988) (remedy). The women's prison in Warm Springs has (1982). The Central Complex and most of the North severe problems with respect to environmen­ At MCI at Walpole, numerous conditions, Complex at the Jackson State Prison are oper­ tal health and sanitation, the delivery of sanitation, and space issues-including hous­ ating under a consent decree. Hadix v. health care, and a dearth of programming. ing prisoners in dayroom areas-are being johnson, #80-73581 (E.D. Mich.) (order The State plans to build a new facility. challenged. Nolan v. Fair, #84-1360 entered May 13, 1981). Among other issues, 27. Nebraska: Aclass action has been (Superior Court, Norfolk County). the decree requires improved health-care filed challenging overcrowding and condi­ Acase filed in state court challenged delivery, sanitation, out-of-cell activity, and tions of confinement at four general-popula­ unlawful conditions, use of force, and classi­ staff supervision. Another order in Hadix tion units of the Nebraska State Penitentiary. fication practices in DOC segregation units requires defendants to subdivide the enor­ An evidentiary hearing was held in August and statewide. After months of trial before one mous Jackson Prison into more workable September 1991. The magistrate judge ren­ justice, the state Supreme Judicial Court ruled units. Compliance is being monitored. Acourt dered a favorable report and recommenda­ in the prisoners' favor. New regulations have order requiring improved legal assistance to tion. In late 1992, the district judge entered been promulgated; compliance is being moni­ prisoners was affirmed on appeal. Hadix v. an order based on the magistrate judge's tored. Hoffer v. Fair, #85-71 (Supreme johnson, 694 F.Supp, 259 (E.D. Mich. 1988), report.jensen v. Gunter, CV 87-L-607, CV

6 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL 87-L-497, CV 87-L-377 and CV 87-L-476 (D. were entered in 1986. Compliance is being (lOth Cir. 1989), cert. denied, 493 U.S. Neb.). The State has appealed. monitored. 1056 (l990). Because the State is in substan­ There is an equal protection and condi­ Women prisoners confined to Nevada tial compliance with much of the decree, in tions case involving the Nebraska Center for Women's Correctional Center have filed a law­ August 1991 the parties agreed to an eventual Women at York. Klinger v. Nebraska Dep't 0/ suit alleging gender discrimination with vacating of the decree. In exchange, the State Correctional Servs., C.V. 88-L-399 (D. Neb.). respect to programming and conditions at the agreed to a permanent, nonmodifiable set of In a case challenging conditions at the facility. Defendants' motion for summary judg­ population controls, including a prohibition Medium Security Unit of the Nebraska State ment was denied. McCoy v. Nevada Depart­ against double-ceIling. The district court Penitentiary, the court held that there was no ment o/Prisons, 776 F.Supp. 521 (D. Nev. approved this settlement in an order entered violation of the Eighth Amendment. However, 1991). Trial is scheduled for January 1993. on September 20, 1991. The special master the court did note that those conditions "are 29. New Hampshire:* The state peniten­ has filed reports evaluating compliance. potentially close to creating intolerable con­ tiary is under court order dealing with total 32. New York: While no statewide com­ ditions...unless remedial measures are imple­ conditions. Laaman v. Helgemoe, 437 prehensive lawsuits have been brought, mented." Kitt v. Ferguson, 750 F.~upp. 1014, F.Supp. 269 (D.N.H. 1977). The parties nego­ numerous prison facilities are under court 1019 (D. Neb. 1990), affd witho~t opinion, tiated a consent decree in May 1990 that order, and injunctive relief has been obtained 950 F.2d 725 (8th Cir. 1991). . resolved a pending motion for contempt. in many of the following cases: 28. Nevacl;l:* The Nevada State Prison at Compliance is being monitored. In 1979, a case was filed challenging the Carson City has been under a comprehensive 30. New Jersey: For years the State has delivery of medical care at the Green Haven court order since 1980 concerning popula­ been able to stave off overcrowding in its Correctional Facility. Milburn v. Coughlin, tion, conditions, and delivery of h~alth-care prisons by mandating that county jails take 79 Civ. 5077 (S.D.N.Y.). In 1982, the parties services. Anew consent decree consolidating the overflow from the state system. However, entered into a comprehensive settlement. the previous orders was entered by the dis­ most of the State's twenty-one county jails are Later, in order to settle a contempt motion, trict court on May 19, 1988. Phillips v. under court order. State prisoners continue the parties negotiated a modified agreement. Bryan, CVR-77-221-ECR (name later changed to back up into municipal lock-ups. Compliance is being monitored. to England v. Miller, with the same docket 31. New Mexico:* The entire system is Acase was filed challenging delivery of number). Two monitors appointed under the under. court order on overcrowding and total medical care at the Bedford Hills women's terms of the agreement have been reporting conditions. Duran v. Apodaca, C.A. No. 77­ prison. The court of appeals upheld a favor­ on compliance. In 1991, the State made a 721-C (D.N.M.)(consent decree entered Aug. able opinion and order. Todaro v. Ward, 565 motion to dismiss the case; that motion is 1, 1980). Aspecial master was appointed in F.2d 48 (2nd Cir. 1977). In 1988, a renegoti­ pending. June 1983. Defendants moved to vacate the ated consent decree was entered, including In 1979, a lawsuit was filed challenging the consent decree, but the district court denied improvements in the delivery of health care in delivery of mental health services to all Nevada the motion. Duran v. Carruthers, 678 general and the enforcement of services to prisoners. Taylor v. Wolff, CVN 79-162JMB F.Supp. 839 (D.N.M. 1988). The court of HIV-positive prisoners. Compliance is being (D. Nev.). An agreement and consent decree appeals affirmed the decision. 885 F.2d 1485 monitored.

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 7 1

Astatewide class-action suit was filed in segregation facilities. Defendants' motion for ment entered on behalf of defendant prison 1980 on behalf of prisoners confined to seg­ summary judgment on the ground of qualified authorities in a conditions case concerning regation units. Anderson v. Coughlin, 80 Civ. immunity was denied. Langley v. Coughlin, the Hoke Correctional Institution. The indi­ 3037 (S.D.N.Y.). Aconsent decree was 709 F.Supp. 482 (S.D.N.Y.), appeal dis­ vidual prisoner who brought this case seeking entered in 1984 on the medical and legal­ missed, 888 F.2d 252 (2nd Cir. 1989). In a monetary damages was permitted to pursue access issues. In 1985, the court of appeals later opinion, the court accepted the recom­ his claim. Williams v. Griffin, 952 F.2d 820 upheld an unfavorable decision on the exer­ mendations of the magistrate to deny defen- ~!' (4th Cir. 1991). cise and recreation issues. Anderson v. dants' further motion for summary judgment·:" 34. North Dakota: No cases have been Coughlin, 757 F.2d 33 (2nd Cir. 1985). and for class certification. 715 F.Supp. 522 filed dealing with overcrowding or conditions. Compliance is being monitored. (S.D.N.Y. 1989). 35. Ohio:* In a case involving the The protective-custody unit at Green Haven Astate court action was commenced in'" Southern Ohio Correctional Facility, the dis­ Correctional Facility is operating under a 1991 challenging aspects of the medical dire trict court banned double-celling. The 1983 consent judgment concerning condi­ system, the excessive use of restraints and Supreme Court l~ter reversed this decision. tions and practices. Honeycutt v. Coughlin, cell shields, and other conditions at the Chapman v. Rh

8 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL Wilson v. Seiter, #92-3332 (6th Cir. Aug. 20, defendants to implement an effective tubercu­ tional. 830 F.2d 912 (8th CiL 1987) (en 1992) (order). losis-control program throughout the state banc) , cert. denied, 485 U.S. 906 (1988). In 36. Oklahoma:* The state penitentiary at prison system. Trial on all of the remaining 1992, the district court conducted an eviden­ McAlester is under court order on total con­ issues is expected to begin in June 1993. tiary hearing on the plaintiffs' motion for ditions, and the entire state prison system is 39. Rhode Island:* The entire state sys­ enforcement of the order on environmental under court order on overcrowding. Battle v. tem is under court order on overcrowding conditions. The motion for enforcement was Anderson, 564 F.2d 388 (10th Cir. 1977). and total conditions. Palmigiano v. Garra}]y, granted on November 29, 1992. The district court's decision in 1982 to retain 443 F.Supp. 956 (D.R.I. 1977). Aspecial.~; 42. Tennessee:* The entire system is jurisdiction to assure continued compliance master was appointed in September 1977::;., under court order for overcrowding and con­ was upheld. 708 F.2d 1523 (10th CiL 1983), New population caps were imposed by court ditions. Grubbs v. Bradley, 552 F.Supp. 1052 cert. dismissed, 465 U.S. 1014 (1984). order in June 1986. Various contempt.Orders (M.D. Tenn. 1982). The court ordered a Later, in 1984, the district court relinquished have been entered. See, e.g. Palmigian:6 v. reduction in population, and appointed a spe­ jurisdiction; that decision was affirmed. 788 'DiPrete, 700 F.Supp. 1180 (D.R.I. 1988). On cial master in, December 1982. In an October I F.2d 1421 (10th Cir. 1986). Although the August 21, 1989, the First Circuit affirmed in 25, 1985 ordqr, the court enjoined the intake court has ended active supervision, all com­ all respects the trial court's opinions and of new prisori'ers because the State had failed pliance orders are still in effect, and the peni­ contempt orders of October 21, 1988 and to comply with the population-reduction tentiary remains under permanent injunction. April 6, 1989, imposing sanctions. The trial terms of prior orders. In fact, the State recently asked the court to court ordered that the fines be utilized to The Tennessee State Prison in Nashville was vacate or amend the original order to allow establish a bail fund to release low-bail closed in 1992 as a result of a court order in the State to renovate housing closed due to detainees. 710 F.Supp. 875 (D.R.I.) , affd, the Grubbs case. In the interim, the popula­ overcrowding. The court determined that the 887 F;2d 258 (lst Cir. 1989). In May 1990 tion will be reduced. On February 15, 1991, order is still in effect, and refused to amend the court made an additional finding of non­ the special master recommended to the court the order because circumstances have not compliance with population-cap orders and that double-ceiling be permitted at the Turney changed. required the release of certain prisoners. 737 CenteL He also recommended population 37. Oregon: The state penitentiary was F.Supp. 1257 (D.R.I. 1990). Currently the caps at four new state regional facilities. under a court order on overcrowding. Capps parties are in active settlement discussions However, his report required that there be no v. Atiyeh, 495 F.Supp. 802 (D. OL 1980), with the assistance of the special master. decrease in staffing levels. These recommen­ stayed, 449 U.S. 1312 (1981) (Rehnquist, J.), 40. South Carolina:* The entire prison dations are currently pending before the vacated and remanded, 652 F.2d 823 (9th system is under a 1985 consent decree on court. Cir. 1981). On remand, the district court overcrowding and conditions. Plyler v. Evatt, On October 4, 1989 the Sixth Circuit con­ determined that only medical care and fire C.A. No. 82-876-0 (D.S.C.) Gan. 8, 1985). A solidated Grubbs with numerous local-jail­ safety violated the Eighth Amendment. 559 release order entered by the district court in overcrowding cases in which state prisoners F.Supp. 894 (D. Or. 1982). the summer of 1986 was held moot by the were backed up in the jails. Carver v. Knox 38. Pennsylvania:* Acase was filed at the court of appeals. 804 F.2d 1251 (4th Cir. County, 887 F.2d 1287 (6th Cir. 1989). A women's state prison at Muncy challenging 1986). In 1988, the district court denied the master was appointed to monitor the jails and equal protection violations and hazardous State's motion to modify the consent decree work with the Grubbs master. Population physical conditions, including fire-safety vio­ and ordered the State to reduce the prison caps have been recommended and approved lations. Beehler v. Jeffes, 664 F.Supp. 931 population in conformance with the decree. by the court. (M.D. Pa. 1986). Most of the claims have This order was vacated and remanded by the 43. Texas: In 1980, the entire state prison been settled or voluntarily dismissed; an court of appeals. 846 F.2d 208 (4th Cir.), system was declared unconstitutional on asbestos claim is pending and plaintiffs are cert. denied, 488 U.S. 897 (1988). In 1990, overcrowding and conditions. Aspecial mas­ monitoring the removal schedule. the district court again denied the State's ter was appointed. Ruiz v. Estelle, 503 The State Correctional Institution at motion to modify the decree; again the court F.Supp. 1265 (S.D. Tex. 1980), affd in part Pittsburgh (SCIP) is under court order to of appeals vacated and remanded the case. and rev'd in part, 679 F.2d 1115 (5th CiL reduce double-ceIling in the old 19th-century 924 F.2d 1321 (4th Cir. 1991). There have 1982). The parties negotiated an agreement cellblocks and to improve staffing and the been extensive subsequent negotiations in and, in 1985, a consent decree was entered delivery of medical and mental health ser­ this case. In 1990, the parties agreed to per­ on the issue of overcrowding. On December vices. Tillery v. Owens, 719 F.Supp. 1256 mit an increase in population, but the State 3, 1986, the district court held state officials (W.D. Pa. 1989), affd, 907 F.2d 418 (3rd made important concessions in programming in contempt. Ruiz v. McCotter, 661 F.Supp. Cir. 1990), cert. denied sub nom. Mikesell and future construction. On June 1, 1992, the 112 (S.D. Tex. 1986). The contempt order v. Morgan, 112 S. Ct. 343 (1991). In 1990, plaintiffs filed a state-court action to enforce was vacated on April 27, 1987; no fines were the parties negotiated a remedial agreement, the terms of the 1985 agreement to utilize imposed. The State sought to modify the which the court then entered as an ordeL In extant state statutes to reduce population. terms of the consent decree concerning early 1991, the district court entered further Plyler v. Evatt, #92CP 402275 (Ct. Comm. crowding; this motion was denied and the orders on legal access and staff supervision; Pleas, 5th Jud. Circuit). Also in 1992, inci­ denial was affirmed on appeal. Ruiz v. these orders are now on appeal. dent to the federal action, the defendants Lynaugh, 811 F.2d 856 (5th Cir. 1987). On November 20, 1990, a case was filed moved to modify the classification and educa­ During the summer of 1989, private corpora­ challenging conditions and overcrowding at tion terms of the 1985 consent decree. tions operating state prisons on a contract 13 state facilities, excluding those already 41. South Dakota:* The state penitentiary basis were added as party defendants. under court order. Austin v. Lehman, C.A. at Sioux Falls is under court order on a vari­ In 1992, the Ruiz parties filed a negotiated #90-7497 (E.D. Pa.). Amotion to dismiss was ety of conditions. Cody v. Hillard, 599 proposed final judgment in the case. The pro­ denied, and discovery is under way. On F.Supp. 1025 (D.S.D. 1984). The appeals posed order contains system-wide and facili­ September 28, 1992, the district court court reversed an overcrowding order, find­ ty-population limits and the provision of ade­ entered a preliminary injunction ordering the ing that double-ceiling was not unconstitu- quate medical care, including accreditation

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 9 by the NCCHC. Significant orders concerning Hutto, 81-0853-R (E.D. Va.). S.E.2d 227 (W. Va. 1990); and 408 S.E.2d staffing, a ban on the use of "building ten­ The 190-year-old state penitentiary at 355 (W. Va. 1991). ders," administrative segregation, and' the use Richmond was challenged in 1982 on the The Huttonsville Correction Center is also of force remain in effect. The agreement totality of conditions. Shrader v. White, C.A. under court order with respect to crowding requires compliance with other provisions of No. 82-0247-R (E.D. Va.). The trial court dis­ and conditions. The detailed order required the order, including renovation of facilities, missed the complaint in June 1983. The court population reduction and the building of a by June 1, 1993, so as to permit the termina­ of appeals affirmed in part and remanded in vocational training center. Nobles v. Gregory, tion of the special master and the withdrawal part. 761 F.2d 975 (4th Cir. 1985). The #83-C-244 (Circuit Court, Randolph County) of plaintiffs' class counsel. The final judg­ remand was settled in 1987, covering certaiq, (memorandum and order dated Feb. 22, ment was approved by the court on Decem­ prisoner-safety issues. 1985). Enforcement proceedings are ongoing. ber 11, 1992. On September 21, 1990, another lawsuit In 1981, the Supreme Court of Appeals Because the backlog of state prisoners was filed challenging deteriorating conditions held that women prisoners had a state statu­ confined in county facilities affects the Ruiz at the Richmond penitentiary, which on th;ee tory and constit1\lional right to rehabilitation consent order, the Fifth Circuit has ordered occasions the State had announced would be and education. ({ooper v. Gwinn, 298 S.E.2d the Ruiz court and the district court having closed. Congdon v. Murray, 3-90-CV-00536 781 (W. Va. 19&1). Detailed orders were jurisdiction over the jail cases jointly to hear (E.D. Va.). On November 21, 1990, the dis­ entered therelilier. The women were trans­ any requests for relief requiring the transfer trict court ordered basic fire-safety and sani­ ferred in 1990 to a facility located in Grafton, of county prisoners into state custody. In re tation measures. The State permanently West Virginia. Compliance is being Clements, 881 F.2d 145 (5th Cir. 1989), and closed the prison on December 14, 1990. monitored. Alberti v. SheriffofHarris County, 937 F.2d 47. Washington:* The state penitentiary 49. Wisconsin:* The state prison at 984 (5th Cir. 1991), cert. denied sub nom. at Walla Walla was declared unconstitutional Waupun is under a court order on over­ Richards v. Lindsay, 112 S.Ct. 1994 (1992). on overcrowding and conditions, and a spe­ crowding. Delgado v. Cady, 576 F.Supp. 44. Utah: The state penitentiary is operat­ cial master was appointed. Hoptowit v. Ray, 1446 (E.D. Wis. 1983). ing under a consent decree on overcrowding C-79-359 (E.D. Wash. June 23, 1980), a.ffd The women's prison at Taycheedah is oper­ and some conditions. Balderas v. Matheson in part, rev'd in part, vacated in part, and ating under a 1988 consent decree that (formerly Nielson v. Matheson), C-76-253 remanded, 682 F.2d 1237 (9th Cir. 1982). imposes a population cap and deals with pro­ (D. Utah). The 1979 consent decree was The court of appeals affirmed the subsequent gramming, delivery of medical services, and ignored because it lacked an effective mecha­ decision of the trial court and remanded the environmental health issues. Bembenek v. nism for enforcement. Alawsuit challenging case again for entry of an order. Hoptowit v. Bablitch, #86-c-262 (E.D. Wis.). Compliance. double-ceiling at the penitentiary was filed in Spellman, 753 F.2d 779 (9th Cir. 1985). An is being monitored. 1986. Baker v. Deland, #C86-0361G. In June order was filed on April 10, 1986. Defen­ 50. Wyoming:* The old state penitentiary 1989, the court entered a temporary restrain­ dants' motion to dissolve the injunction was was being operated under the terms of a stip­ ing order regarding double-ceiling. In denied on May 22, 1987. Compliance is being ulation and consent decree. Bustos v. November 1991, the magistrate judge filed a monitored. Herschler, C.A. No. C76-143-B (D. Wyo.). report with the court recommending that Alawsuit filed in 1978 challenged condi­ The federal court relinquished jurisdiction in double-celling be barred in some units, while tions and delivery of medical care services at early 1983; that prison is now closed. Anew permitting it in others after remodeling. On the State Reformatory at Monroe. Collins v. prison was opened thereafter; in 1991, it was March 20, 1992, the district court accepted Thompson, #C-78-79R, #C-78-134 (W.D. operating above capacity. the report and entered an injunction. Baker Wash.). The parties agreed to a settlement in 51. District of Columbia:* The District v. Holden, 787 F.Supp. 1008 (D. Utah 1992). 1981 that includes a population cap. Since jails are under court order on overcrowding In December 1989, a further complaint then, defendants have sought to have the and conditions. Inmates ofD. C. jail v. was filed challenging the delivery of medical decree vacated on four separate pccasions. jackson, 416 F.Supp. 119 (D.D.C. 1976); and mental health services at the state peni­ The last motion to vacate, which was filed in Campbell v. McGruder, 416 F.Supp. 100 tentiary. Henry v. Deland, C.A. 89-C-1124 August 1992, is pending. Compliance moni­ (D.D.C. 1975), a.ffd in part and remanded, (D. Utah). On September 8, 1992, the parties toring continues. 580 F.2d 521 (D.C. Cir. 1978)(concerning signed a consent decree to improve mental 48. West Virginia: The state penitentiary the old D.C. Jail). On remand, the court health services. at Moundsville is under court order on over­ ordered a time limit on double-celling and an Finally, a colliplaint was filed in 1989 con­ crowding and conditions. Crain v. Borden­ increase in staff at the new D.C. Jail (CDF). cerning violence at the prison perpetrated by kircher, #81-C-320R (Circuit Court, Marshall 554 F.Supp. 562 (D.D.C. 1982). In 1985, both staff and prisoners. This case is in dis­ County)(memorandum and order dated June after trial, the district court ordered that covery. Harding v. Deland, #890-905342CV. 21, 1983). Plaintiffs challenged as insuffi­ intake be enjoined. Inmates ofD. c. jail v. 45. Vermont: The state prison was closed cient a remedial plan prepared by defen­ jackson, #75-1668 (D.D.C.) (order entered in the late 1970s. Maximum-security prison­ dants. The state Supreme Court of Appeals July 15, 1985). Aconsent decree, which sup­ ers are sent to other states. The State oper­ agreed with plaintiffs and ordered the defen­ planted the initial order and required a ates two in-state "central" facilities for close­ dants to develop a new plan. 342 S.E.2d 422 reduction in population, was entered on and medium-custody prisoners. (W. Va. 1986). Since that 1986 decision, the August 22, 1985. Compliance is being moni­ 46. Virginia:* The state prison at Supreme Court of Appeals has maintained tored. In 1992, plaintiffs focused on the Powhatan is under a consent decree dealing jurisdiction over this case. In 1988, the court issues of medical and mental health services. with overcrowding and conditions. Cagle v. ordered the defendants' improved plan to be Several facilities at the Lorton Complex, the Hutto. 79-0515-R (E.D. Va.). implemented, and further ordered the State District's facility for sentenced prisoners, are The maximum-security prison at to close the prison. 376 S.E.2d 140 (W. Va. under court order for overcrowding, condi­ Mecklenburg, including its death-row unit, is 1988). Thereafter, opinions on the status of tions, and the delivery of health services. under a 1985 court order dealing with vari­ implementation have been filed on an annual Population caps are in place at both the ous practices and conditions. Brown v. basis. See 382 S.E.2d 68 (W. Va. 1989); 392 Central Facility and the Maximum Security

10 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL Facility. Twelve John Does v. District of Modular Facility, a new prison that was ify the space requirements of the 1986 stipu­ Columbia, #80-2136 (D.D.C.)(Central); designed as the District's reception-and-clas­ lation; plaintiffs renewed their motion for John Doe v. District ofColumbia, #79-1726 sification facility. Inmates ofModular contempt. In 1991, the court denied defen­ (D.D.C.) (Maximum). The District has been Facility v. District ofColumbia, #90-0727 dants' motion, granted plaintiffs' motion, and held in contempt for violations of the cap at (D.D.C.). In the middle of trial, a settlement entered a prospective fine of $10 per prison­ Central. Twelve John Does v. District of was reached and a consent decree entered;" er per day above the population cap. Morales Columbia, 855 F.2d 874 (D.C. Cir. 1988). In the decree includes a population cap and " Feliciano v. Hernandez Colon, 754 F.Supp. 1992, the district court entered a further requires improvements in medical care.''> 942 (D.P.R. 1991). The court appointed a consent decree on various medical and men­ (Order entered Dec. 14, 1990.) CompliaIt~e special master for the purpose of contracting tal health care issues in the Central case. is being monitored. on behalf of the defendants to prepare plans (Order entered June 10, 1992). On May 20, 1992, a complaint was {fled and to make evaluations on various environ- , On December 22, 1986, Lorton's medi­ challenging the delivery of medical caPe at mental health issues. 771 F.Supp. 11 (D.P.R. um-security Occoquan facilities came under three other District prisons at Lorton: the 1991). Later I~:'> 1991, the court ordered the court order, and a population cap was Medium Security Facility, the Minimum defendants to',transfer the accumulated fine imposed. Inmates ofOccoquan v. Barry, Security Facility, and the Youth Center. money, amo~~ting to $1 million per week, to 650 F.Supp. 619 (D.D.C. 1986), vacated Inmates ofThree Lorton Facilities v, the U.S. Treasury. 775 F.Supp. 487 (D.P.R. and remanded, 844 F.2d 828 (D.C. Cir. District ofColumbia, #92-1208 1991). 1988), rehearing en bane denied, 850 (D.D.C.). Apopulation cap was established at Ponce F.2d 796 (D.C. Cir. 1988) (containing dis­ 52. Puerto Rico: The entire Common­ District Jail, where sentenced felons are senting opinions and separate statements). wealth prison system is under a 1979 court housed. Morales Feliciano v. Hernandez On remand, a second trial was held in order dealing with overcrowding and condi­ Colon, 697 F.Supp. 37 (D.P.R. 1988). The January 1989. The facility was again held tions. Morales Feliciano v, Romero Barcelo, district court ordered contempt fines for vio­ unconstitutional, and the defendants were 497 F.Supp. 14 (D.P.R. 1979). In 1986, the lations of the cap; the fines were upheld on ordered to devise a plan to alleviate consti­ Commonwealth was again found liable on appeal. Morales Feliciano v. Parole Board, tutional violations. 717 F.Supp. 854 (D.D.C. crowding, conditions, and delivery of health­ 887 F.2d 1 (1st Cir. 1989), cert. denied, 494 1989). Plans have been approved by the care services in its entire prison and jail sys­ U.S. 1046 (1990). court and compliance is being monitored. tem. Two court monitors were appointed. 53, Virgin Islands: The territorial prison In 1992, the district court interpreted the 672 F.Supp. 591 (D.P.R. 1986). In 1987, the is under court order dealing with conditions mental health order to require that serious­ Commonwealth was held in contempt for vio­ and overcrowding. Barnes v. Gov't ofthe ly mentally ill prisoners be transferred to lation of the population limits set out in a Virgin Islands, 415 F.Supp. 1218 (D.V.1. the D.C. Jail and be provided an adequate 1986 stipulation. Morales Feliciano v. 1976) .• treatment program. Hernandez Colon, 697 F.Supp. 26 (D.P.R. In March 1990, a lawsuit was filed chal­ 1987). Edward 1. Koren is a senior staffattor­ lenging crowding and conditions at Lorton's In 1990, defendants filed a motion to mod- ney with the NPP.

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 11 A PROJECT OF THE AMERICAN CIVIL L1BERTIES~UNION FOUNDATION, INC. VOL. 8, NO.1, WINTER 1993 • ISSN 0748-2655 ,~,

)~ while he was standing naked facing the walL pound bags in eithkr hand-violated the Amedical examination showed superficial Eighth Amendment even though they conced­ bruises, swelling around both eyes, and lacer­ edly did not cause much physical pain. ations on the wrist and leg. Jones illustrates several important aspects The plaintiff was then transferred to Clinton of the Hudson v. McMillian analysis. Highlights of Most Correctional Facility, a maximum security First, courts will be extremely reluctant to Important Cases prison. At Clinton, the sergeant who inter­ second-guess the actions of correctional staff viewed him about the Mt. McGregor incident who are actively engaged in bringing a resist­ USE OF FORCE kicked him in the buttocks as he escorted ing prisoner under controL In this case, In Hudson v. McMillian, 112 S.Ct. 995 him to the prison dispensary. Further medical whether the plaintiff could have been initially (1992), the Supreme Court defined the Eighth examination at Clinton revealed some addi­ restrained without a punch in the face is a Amendment's limitations on misuse of force tional injuries from the Mt. McGregor inci­ finer distinction than the court was prepared against convicted prisoners, holding that in dent, and the court found that he had suffered to make. Accord, Caldwell v. Moore, 968 all cases the legality of staff conduct depends a blowout fracture of his left eye socket. F.2d 595 (6th Cir. 1992) (rejecting an Eighth on "whether force was applied in a good-faith The court applied Hudson v. McMillian to Amendment claim based on the use of a taser effort to maintain or restore discipline or this sequence of events, at least as to the against an inmate causing a disturbance while· maliciously and sadistically to cause harm." actions of the officers who had been named locked in 'his cell). [d. at 998-99. If malicious and sadistic intent as defendants. First, it found that the initial Second, courts will parse a complicated is shown, the prisoner need not prove that he physical encounter, during which the plaintiff series of events into its components, within or she sustained a "significant injury"; only was punched in the face and placed in a the limits of the evidentiary record, and will "de minimis" uses of force escape Eighth headlock, did not violate the Eighth evaluate each part of the sequence separately. Amendment scrutiny. [d. at 1000. Amendment. The court reasoned that the The fact that an inmate's conduct initially jus­ punch was administered "in an effort to tified substantial force will not justify the con­ Hudson in the Lower Conrts restore discipline" after the plaintiff dis­ tinued use of force after the need has passed, An instructive early application of Hudson obeyed orders and struck an officer, and the even in a case like this where the plaintiff appears in a recent decision from a New York headlock was justified by the fact that the resisted staff and inflicted some injury on federal court. InJones v. HUff, 789 F.Supp. plaintiff continued to struggle. Similarly, the them. Accord, Bogan v. Stroud, 958 F.2d 526 (N.D.N.Y. 1992), the plaintiff had alleged court found that placing the plaintiff in a 180, 184-85 (7th Cir. 1992)(upholding jury that a series of acts by officers at two state "chicken wing hold" and holding him face verdict for plaintiff who cut an officer with a prisons constituted cruel and unusual punish­ down on the bed were justified by the need to knife and was then beaten and stabbed after ment. After a bench trial, the court agreed in restore order. However, the punches and he had been disarmed and subdued). part and disagreed in part, nicely illustrating kicks administered in the holding room, Third, Eighth Amendment violations may be the focus of theJludson holding on the moti­ inflicted while the plaintiff was pinned face found in completely non-injurious uses of vation and justification for use of force rather down on a bed by two officers, could not force if they are gratuitous or clearly intended than on its severity or consequences. plausibly have been thought necessary. to humiliate. Thus, the court based its con­ The plaintiff inJones was involved in an Although these blows were inflicted by clusion that ripping the plaintiff's clothes off inmate altercation in the medium-security Mt. unknown officers, one defendant was held violated the Eighth Amendment partly on the McGregor Correctional Facility. After learning liable for failure to intercede to stop them. fact that it was done "with the intent to humil­ that he would be transferred, he refused to Both Mt. McGregor officers were held liable iate him." Asimilar perception no doubt cooperate and struck one officer on the for ripping the plaintiff's clothes off, since at influenced the court's finding that two shoulder; another officer placed him in a that point he had been subdued and was sur­ "unwarranted and cavalier" kicks to the but­ headlock and punched him in the face. He rounded by numerous officers; the court con­ tocks were unconstitutional. See also Winder was forced, still in a headlock, into a holding cluded that this "was done maliciously with v. Leak, 790 F.Supp. 1403,1407 (N.D.Ill. room; when he was released, he hit or the intent to humiliate" the plaintiff. Slapping 1992) (denying summary judgment against a pushed another officer. Several officers then and punching the plaintiff as he stood hand­ prisoner who walked with a leg brace and forced him face down onto a bed, where they cuffed and naked was also found to violate was pushed by an officer to speed him up, continued to kick andpunch him. He refused, the Eighth Amendment. causing him to fall without injury). This or was too slow, to remove his clothes for a The court also found that the Clinton approach is consistent with the Supreme strip search, and several officers ripped his sergeant's kicks to the plaintiff's buttocks­ Court's observation in Hudson that the Eighth clothes off. He was then handcuffed, and two administered despite the plaintiff's obvious Amendment "excludes from constitutional officers punched, slapped, and kicked him injuries and the fact that he was carrying 25- recognition de minimis uses of physical

12 WINTER 1993 THE NATIONAL PRISON PROJEG JOURNAL force, provided that the use of force is not of Althoughjohnson v. Glick has also been words. See Wilson v. Seiter, 111 S.Ct. at 2326 a sort 'repugnant to the conscience of cited in the Supreme Court's Eighth ("An intent requirement is either implicit in mankind.'" 112 S.Ct. at 1000 (citations and Amendment cases, its due process standard the word 'punishment' or is not.. ..") internal quotation marks omitted). differs significantly from the Eighth Amendment rule in that the officer's state of Where Is the Line? Detainees: The Missing Piece mind is only one of four seemingly equal fac­ There is a further question about the due Hudson's clarification of the Eighth tors contributing to the court's conclusion.)/ process use-of-force standard: at what point Amendment use-of-force standard followed Under the Eighth Amendment, by contrast, ); does it take effect? When does the "arrest," by three years the Supreme Court's decision malicious and sadistic intent is determinative, governed by the FourthAmendment, end, and in Graham v. Connor, 490 u.s. 386 (1989), with the other three factors significant only'~s "detention," governed by the Due Process which set the Fourth Amendment standard for they may help answer the intent questioli, . Clause, begin? police brutality claims. In Graham, the Court Whitley v. Albers, 475 U.S. 312, 320-22";­ Graham v. Connor ducked this question. held that the Fourth Amendment prohibits (1986); accord, Hudson v. McMillian,;'fI2 490 U.S. at 39~-97 n.10. The lower courts uses of force that are not '''objectively rea­ S.Ct. at 998. Under the Fourth Amendment, as have come to d~fferent conclusions. Some sonable,' in light of the facts and circum­ noted, the officer's subjective intent is com­ have held or assumed that the Fourth stances confronting [the officers], without pletely irrelevant. Amendmenrstandard governs until the regard to their underlying intent or motiva­ No federal court has questioned the contin­ arrestee is brought before a judicial officer tion." 490 u.s. at 397. The officers' good uing viability of the johnson v. Glick test in for a probable cause determination. faith or malicious or sadistic intent is simply detainee cases or shown any interest in re­ Frohmader v. Wayne, 958 F.2d 1024 (10th not an issue. examining it in light of subsequent Supreme Cir. 1992); Simpson v. Hines, 903 F.2d 400, In Graham, the Court also stated, "It is Court authority. See, e.g., White v. Roper, 403 (5th Cir. 1990); Powell v. Gardner, 891 clear...that the Due Process Clause protects a 901 F.2d 1501, 1507 (9th Cir. 1990); United F.2d 1039, 1044 (2nd Cir. 1989) (dictum); pretrial detainee from the use of excessive States v. Cobb, 905 F.2d 784, 787 (4th Cir. and Henson v. Thezan, 717 F.Supp. 1330 force that amounts to punishment." 490 u.s. 1990); Powell v. Gardner, 891 F,2d 1039, (N.D.Ill. 1989). at 395-96, n.10. "Punishment," as applied to 1043-44 (2nd Cir. 1989); Brooks v. Pem­ Other courts have applied a due process conditions of pretrial confinement, was broke City jail, 722 F.Supp. 1294, 1299­ standard to uses of force in police lockups defined by the Supreme Court in Bell v. 1300 (E.D.N.C. 1989). and pre-arraignment holding areas. United Wolfish: in the absence of explicit punitive This reticence may be just as well, since States v. Cobb, 905 F.2d 784, 788 (4th Cir. intent, conditions constitute punishment if such an examination leads quickly to prob­ 1990) (assault in "booking room" treated as they are not "reasonably related to a legiti­ lems. The Bell v. Wolfish definition of "pun­ a due process case); Titran v. Ackman, 893 mate governmental objective." This inquiry ishment" as the lack of a reasonable relation­ F.2d 145, 147 (7th Cir. 1990)(arrestee's "generally will turn on 'whether an alterna­ ship between ends and means is arguably presence in jail and completion of booking tive purpose on which [the restriction] may inconsistent with the holding of Wilson v. invoked the due process standard); Wilkins rationally be connected is assignable for it, Seiter, 111 S.Ct. 2321, 2325 (1991), that in v. May, 872 F.2d 190, 195 (7th Cir. and whether it appears excessive in relation the Eighth Amendment context "some mental 1989) (excessive force in questioning an to the alternative purpose assigned [to it] .", element must be attributed to the inflicting arrestee is governed by due process), cert. 441 U.S. 520, 538-39 (1979), quoting officer" to support a finding of punishment. denied, 110 S.Ct. 733 (1990); Stewart v. Kennedy v. Mendoza-Martinez, 372 U.S. Wilson went on to quote a definition of "pun­ Roe, 776 F.Supp. 1304, 1307 (N.D.IlI. 144, 168-69 (1963)(a case that struck down ishment" as "a deliberate act intended to 1991) (force used against an arrestee in a forfeiture-of-citizenship provisions of the chastise or deter." Id. (citation omitted). On holding cell is governed by a due process immigration laws). the other hand, Wolfish's language of reason­ standard); and Brooks v. Pembroke City jail, The Supreme Court has never actually ableness is similar to that used in Fourth 722 F.Supp. 1294, 1299 (E.D.N.C. decided a detainee use-of-force case, so the Amendment analysis, which yielded the 1989) (assuming that use of force against an application of the "punishment" standard to objective, intent-free standard for use of arrestee who had been placed in a police such cases has been left to the lower courts. force cases adopted in Graham v. Connor. detention cell was governed by a due process They have almost unanimously relied on a Moreover, the Wolfish standard is the same standard rather than the Fourth Amendment). pre-Wolfish statement of the due process as the reasonable relationship test set out for Eventually this conflict will have to be use-of-force'Standard from the famous case assessing prison rules infringing First resolved by the Supreme Court. As a function­ ofjohnson v. Glick: Amendment and substantive due process al matter, it would appear that an arrestee Not every push or shove...violates rights of convicts-a test that turns entirely who has been brought to a facility controlled aprisoner's constitutional on objective factors. See Turner v. Safley, by law enforcement officials and designed to rights.... [A] court must look to 482 U.S. 78, 89-91 (1987). keep suspects in custody is in a more similar such factors as the needfor the Thus, trying to harmonize all the relevant situation to a convict or a jail inmate than to application offorce, the relation­ Supreme Court authority leads to one of two an arrestee who is in police custody but out­ ship between the need and the conclusions: either that "punishment" has side any secure detention setting. However, amount offorce that was used, different meanings under the Eighth the Supreme Court has insisted that the legal the extent ofinjury inflicted, and Amendment and the Due Process Clause, or standards in this area be determined by the whether force was applied in a that "reasonable" has different meanings text of the relevant constitutional provision, goodfaith effort to maintain or under the Due Process Clause and the Fourth Graham v. Connor, 490 U.S. at 394, so it is restore discipline or maliciously Amendment. This is an ironic outcome for doubtful that it will take this functional and sadistically for the very pur­ an analytical method that purports to rely on approach. pose ofcausing harm. the "explicit textual source[s] of constitu­ 481 F.2d 1028, 1033 (2nd Cir.) , cert. tional protection," Graham v. Connor, 490 The Fifth Circuit: Do They Get It? denied, 414 U.S. 1033 (1973). U.S. at 395, and on the plain meaning of As noted, the Supreme Court's recent use-

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 13 of-force adjudication has been closely tied to requirement "under section 1983," despite an issue during the services.) The court went the actual language of the relevant Graham v. Connor's explicit rejection of a on to add, "History is replete with instances Amendment. In Graham v. Connor, the Court "generic" §1983 use-of-force standard. of prolonged conflict and bloodshed over the explicitly rejected any notion of a "single Second, it misconstrues the holding of desire of people to worship with agroup of generic standard" for §1983 use-of-force Hudson with respect to injury by confusing a kindred mind.... [T]he warden lacked the cases. 490 u.s. at 393. This lesson appears to "de minimis use of physical force" with one courage to confront squarely the situation have been lost on the Fifth Circuit, from that causes no injury. Ause of force such as before him...." (emphasis supplied). which Hudson v. McMillian came to the electric shock that inflicts transitory pain but On appeal, the Sixth Circuit reversed the Supreme Court. no actual injury whatsoever can still be grant of summary judgment, holding that the The Fifth Circuit had declared in an earlier "repugnant to the conscience of mankind," as­ warden's grievance decision and the views case that a plaintiff with a "Constitutional is a use of force that is purposely designed tt> ­ stated by the first chaplain created a disputed excessive force claim" .must prove three ele­ humiliate, such as the ripping off of the prW issue of fact as to the existence of a security , ments: oner's clothing inJones v. HUff. ;, risk. Phelps v. DU1ljn, 965 F.2d 93 (6th Cir. (1) a significant injury, which 1992). The appeal$ court defined the issues (2) resulted directly and onlyfrom the use GAY RIGHTSIRELIGION as narrowly as poifsible, holding that only the I offorce that was clearly excessive to the Homophobia, both penological and judi­ question of attendance, and not "leadership," need; and the excessiveness ofwhich was cial, has reared its head in an unusually was in'dispute, despite the district court's (3) objectively unreasonable. explicit fashion in a Kentucky case in which a emphasis on the latter point. The court was Johnson v. Morel, 876 F.2d 477,480 (5th gay inmate was excluded from prison reli­ also careful to note that the case did not deal Cir. 1989)(en banc)(footnote omitted). In gious activities. In Phelps v. Dunn, 770 either with a policy of exclusion of homosex­ Eighth Amendment cases, the court added a F.Supp. 346 (E.D.Ky. 1991), the plaintiff, an uals from religious services or "the rights of fourth requirement, that the action constitut­ openly gay Christian, had actively participated other prisoners or pastors to have a service ed an unnecessary and wanton infliction of in chapel services for almost two years, without those they may consider sinners." It pain. Huguet v. Barnett, 900 F.2d 838, 841 singing solos, reading aloud from the Bible, is difficult to come away from the district (5th Cir. 1990). This line of cases was over­ and "shading] his testimony offaith." Anew court's opinion without the impression that ruled by Hudson v. McMillian as to the chaplain, who began to conduct some of the the judge's personal distaste for homosexuali­ requirement of "significant injury" in an services, believed that such participation by ty played a large part in the outcome. The Eighth Amendment case. homosexuals was contrary to his interpreta­ Sixth Circuit's opinion studiously avoids that The Fifth Circuit's most recent pronounce­ tion of the Bible, and barred him from active question, an effort that is made easier by its ment on use-of-force standards is Knight v. participation. The plaintiff filed a grievance, narrow construction of the record and the Caldwell, 970 F.2d 1430 (5th Cir. 1992), in which was denied by the deputy warden, who issues on appeal. which the plaintiff alleged that he was assaulted wrote that the plaintiff's desire to "lead" in and threatened with death while in police cus­ services "is not acceptable because of his tody, but sustained no injuries. The court held: admitted homosexual activity. The other men The Supreme Court's decision attending the services support the position Other Cases [in Hudson v. McMillian] makes taken by the volunteer chaplain." On appeal, clear that we can no longer however, the warden ruled in the plaintiff's Worth Noting require persons to prove "signifi­ favor, stating that "All inmates should be cant injury"..:under section 1983­ afforded the opportunity to participate in SUPREME COURT OF THE The Court's holding, however, leadership roles regardless of sexual prefer­ UNITED STATES does not affect the rule that ence." The plaintiff alleged that the warden's 1991-92 Term requires proofofinjury, albeit favorable decision was never carried out and significant or insignificant. In that he was barred entirely from services. Appeal fact, the Supreme Court specifical­ The district court granted summary judg­ Smith v. Barry, 502 U.S. _',112 S.Ct. ly denied constitutionalprotec­ ment for prison officials, holding that the _, 116 L.Ed.2d 678 (1992). The plaintiff tion for "de minimis uses ofphysi­ exclusion of the plaintiff was justified because filed apro se notice of appeal that was invalid calforce, provided that the use of it bore a reasonable relationship to legitimate because it preceded the disposition of a force is nof'ofa sort repugnant to penological interests, given the security risk motion for JNOV (judgment notwithstanding the conscience ofmankind. " allegedly created by other inmates' hostility to the verdict). The court nonetheless sent the Id. at 1432 (citation omitted). the plaintiff's participation. It reached this plaintiff an "informal brief' form, which he This decision fails to acknowledge the conclusion despite the absence of any actual returned within the time prescribed for filing ground rules set by the Supreme Court in two disruption and despite the warden's overrul­ a notice of appeal. important respects. ing of the exclusion. In fact, the court went The "informal brief' was the equivalent of a First, it ignores the command of Graham v. on to declare the warden's decision "arbi­ notice of appeal. An appellate brief can serve Connor that in use-of-force cases, courts trary and capricious in view of the very rights as a notice of appeal as long as it contains the must identify the particular constitutional relied on by the plaintiff in asserting his information required by the rules in a notice protections relied upon and base their stan­ claims." The plaintiff's participation, in the of appeal. dards of adjudication on the text of those court's view, threatened to "deprive others of provisions. In Knight, the court never states their equally protected right to worship with­ Psychotropic Medication/Pretrial whether it is applying the Fourth Amendment out being exposed to offensive conduct." Detainees or the Due Process Clause to this police cus­ (The "offensive conduct" apparently consist­ Riggins v. Nevada, 504 U.S. _, 112 S.Ct. tody case, and it purports to apply a rule of ed of being homosexual while singing hymns _, 118 L.Ed.2d 479 (1992). The petition­ law stated in an Eighth Amendment case. It and reading the Bible; there is no indication er's criminal conviction is reversed because poses the question whether there is an injury that the plaintiff made his sexual orientation the state courts failed to make findings suffi-

'4 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL cient to support forced administration of Cir. 1991). Aprivate corporation operating a Indemnification antipsychotic drugs during his trial. Pretrial detention center "is no doubt performing a Hankins v. Finnel, 964 F.2d 853 (8th Cir. detainees enjoy at least as much protection public function traditionally reserved to the 1992). The plaintiff won $3,000 in punitive from forced medication as do convicted per­ state" (l02) and therefore acted under color damages against a prison employee who had sons under Washington v. Harper. There oflaw. sexually molested him. The state paid the must be "a finding of overriding justification Apolicy forbidding hardcover books was award pursuant to its indemnity statute, then and a determination of medical appropriate­ not unconstitutional as applied to the plain~' proceeded in state court under the Missouri ness." (489) tiff's Bible. At 103: "The determinative factor Incarceration Reimbursement Act to try to in the case is that the Center would allow recover 90% of the award. The plaintiff U.S. COURTS OF APPEALS Skelton to have a softcover Bible." The. obtained an order from the federal district refusal, based on a concern that books'could court barring the state from attaching his Attorneys' Fees and Costs/ become weapons of assault or hiding pl~ces money. Medical Care for contraband, was reasonable under the The state In'l;arceration Reimbursement Act Collins v. Romer, 962 F.2d 1508 (lOth Cir. Turner standard, which is applied to this is pre-empted"hy §1983 because allowing the 1992). AColorado "co-payment" statute unsentenced prisoner with no discussion of state to reco,up §1983 awards would be inim­ required prisoners to pay $3.00 for each its appropriateness. ical to the deterrent and compensatory pur­ medical visit; after suit was filed, the statute poses of the statute. was amended to apply only to visits to a Religion physician without a referral from a nurse or Blair-Bey v. Nix, 963 F.2d 162 (8th Cir. Access to Courts physician's assistant. (This amendment 1992). Members of the Moorish Science Shango v. Jurich, 965 F.2d 289 (7th Cir. excluded most medical visits from the Temple (MST) , characterized as an "Islamic 1992). Prison officials bear the burden of requirement.) The amended statute was sect," are not entitled to a religious advisor proving the adequacy of their court access found constitutional on its face and as separate from the Islamic advisor the prison systems. However, the plaintiff must "allege applied to the named plaintiffs. provided. The court notes that MST members some quantum of detriment caused by the The plaintiffs are entitled to attorneys' fees have many other religious rights. ch~llenged conduct of state officials resulting under the "catalyst" test. There was ample The prison employed Catholic, Protestant, in the interruption and/or delay ofplain­ evidence that the suit bore a causal relation­ Jewish, Islamic and Native American repre­ tifJ's pending or contemplated litigation. " ship to the statutory amendment. The change sentatives but "does not employ separate rep­ (292, citation omitted, emphasis supplied). was "required by law" in that the district resentatives to advise individual sects within The absence of any showing that any inmate court found that the earlier version was the designated religions." (l63) The court was prejudiced, combined with the evidence unconstitutional because it would have does not explain why Catholicism and that inmates were "prolific litigators," plus required days and in some cases weeks at Protestantism are "religions" while MST is a the many indicia of compliance with Bounds, inmate pay rates to earn the money, and "sect." supported the district court's finding that would have fallen particularly harshly on the there was no constitutional violation. chronically ill. This opinion does not actually Searches-Person-Prisoners/ affirm that judgment, since the "required by Use of Force Medical Care- law test" only requires the district judge to Cornwell v. Dahlberg, 963 F.2d 912 (6th Denial of Ordered Care determine that the suit was not "frivolous or Cir.1992). After a disturbance, inmates Aswegan v. BrUhl, 965 F.2d 676 (8th Cir. groundless. " including the plaintiff were made to lie hand­ 1992) (per curiam). Ajury awarded $500 in cuffed in a cold, muddy area with the temper­ actual damages and $1,500 in punitive dam­ Pretrial Detainees/Crowding ature in the low 40's. The plaintiff's shoes ages to the 70-year-old plaintiff, who suffered Williams v. McKeithen, 963 F.2d 70 (5th were taken and not returned. Strip searches from heart disease and arthritis, against the Cir. 1992). After the 1977 decision in were conducted outdoors in view of the prison security director and a deputy warden Williams v. Edwards finding unconstitutional whole group of inmates and any officers pass­ based on a number of incidents including conditions in Louisiana prisons, the usual ing through the area, including some female failure to deliver prescribed medications in a state-ready backup problem developed, and staffers. timely manner and to follow physicians' rec­ the appeals court ordered all crowding-relat­ At 916: ommendations. ed jaillitigatlon consolidated in one district. ... fA} convictedprisoner main­ The finding of supervisory deliberate indif­ All city and parish jails entered into consent tains some reasonable expecta­ ference is supported by evidence that one decrees limiting population. tions ofprivacy while in prison, defendant deliberately refused the plaintiff The district court did not abuse its discre­ particularly where those claims access to medical personnel on one occasion; tion in directing that a court-appointed are related to forced exposure to that both of them failed to take steps to elimi­ expert, in order to update the consent strangers ofthe opposite sex, even nate repeated violations of orders that med­ decrees, inspect each jail to determine an though those privacy rights may ication be timely provided and that he not be appropriate population limit, staffing levels, be less than those enjoyed by non­ cuffed with his hands behind his back; and repairs or renovations required to meet fire, prisoners. that he not be placed in shower stalls during health, and constitutional standards, and any The district court's Fourth Amendment jury shakedowns because of his breathing other information that would help the court charge, which addressed whether defendants problems. set population limits. The order is "designed had acted in an "objectively reasonable man­ for the narrow purpose of monitoring com­ ner," was appropriate only in a use-of-force Medical Care pliance with the Decree." (71) case and not in a Fourth Amendment privacy Taylor v. Bowers, 966 F.2d 417 (8th Cir. case, which is governed by the Turner rea­ 1992). The plaintiff had severe stomach pain Color of Law/Publications sonableness standard. and vomited blood. His recommended trans­ Skeltonv. Pri-Cor, Inc., 963 F.2d 100 (6th fer to a hospital was delayed while he was

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 15 questioned as to whether he had swallowed the search officers present) is a reasonable (856, citation omitted) "Intent is irrelevant to drug-laden balloons. Two days later accommodation to the inmates' privacy a finding of civil contempt and, therefore, exploratory surgery was performed and he rights. good faith is not a defense." Id. was found to have a ruptured appendix. He The court distinguishes its prior decision in The deliberate indifference standard of continued to have pains but was not trans­ Hurley v. Ward on the ground that the Wilson v. Seiter is not applicable to the ferred to a hospital until two weeks after the searches in that case were found to have been enforcement of a consent decree. original recommendation, where he had a accompanied by physical and verbal abuse The long history of noncompliance with the second operation to drain an abscess. not present here. population cap and with other parts of the Apparently no drugs were found. consent decree support a finding of con­ The plaintiff's allegation that medical treat­ State Officials and Agencies/ tempt. There was evidence that the recent ment was withheld from him to coerce him Work Assignments , upsurge in jail population was not really into confessing that he had swallowed drugs Hale v. State ofArizona, 967 F.2d 1356':; unforeseen, having been predicted by the states a violation of clearly established Eighth (9th Cir. 1992). Inmates employed by'" National Council ~n Crime and Delinquency Amendment law. He produced sufficient evi­ Arizona Correctional Industries (ARCOR), and the Special ¥~ster. dence in support to withstand summary judg­ which makes products for sale or use outside At 858:>' ment as to one of three defendants. the prison, are entitled to receive the mini­ The Cii)/argues that itfaces a mum wage under the Fair Labor Standards financial crisis thatprevents it Suicide Prevention Act (FLSA), rather than the 50 cents an hour from funding these programs, but Tittle v. Jefferson County Commission, that they are paid, since state statutes provide federal courts have repeatedly 966 F.2d 606 (lIth Cir. 1992). The dece­ that ARCOR is "deemed a private enterprise held that financial constraints do dents were arrested; the jail's suicide screen­ and subject to all the laws and lawfully adopt­ not allow states to deprive per­ ing procedure revealed no cause for concern; ed rules" applying to these. sons oftheir constitutional rights, they both hanged themselves. The court concludes that the FLSA was The language in Rufo v. Inmates of Evidence of a known history of jail suicides intended to regulate prison labor. The Suffolk CountyJail concerning the impor­ by hanging from a horizontal bar raised an Supreme Court has held that the terms tance of financial constraints applies only in issue of material fact as to the municipality's "employer" and "employee" are to be defined the context of a modification motion based on deliberate indifference. At 612: expansively and not limited by traditional unexpected or unanticipated circumstances. In this context, the question of views. Congress set out an "extensive" list of At 861: whether or not these particular workers exempted and did not include pris­ Afederal court has broad reme­ inmates had exhibited suicidal oners on that list, despite several modifica­ dial powers.... The court's choice tendencies is irrelevant because tions of the list. One of the statute's purposes ofremedies is reviewedfor an the basis ofthe claim is that the was to eliminate unfair competition through abuse ofdiscretion.... jail itselfconstituted a hazardous cheap labor. In employing their broad equi­ condition and that the defendants table powers, federal courts should were deliberately indifferent to Pretrial Detainees/Contempt!Appeal! "exercise the least possible power that danger. It is true that prison Pendent and Supplemental Claims; adequate to the endproposed. " ... officials are not required to build State Law in Federal Courts/ Courts have conceded, however, a suicide-proofjail. By the same CrowdinglRemedies/Financial that when the least intrusive mea­ token, however, they cannot equip Resources/Monitoring and Reporting! sures fail to rectify the problems, each cell with a noose. State-Federal ComitylRelease of more intrusive measures ar,e justi­ , Prisoners fiable.... Searches-Person-Prisoners/ Stone v. City and County ofSan While there are federalism con­ I Pretrial Detainees Francisco, 968 F.2d 850 (9th Cir. 1992). The cerns in institutional reform liti­ Ii Covino v. Patrissi, 967 F.2d 73 (2nd Cir. city jail is governed by a consent decree con­ gation involving correctional 1992). The plaintiff, a pretrial detainee, was taining a pupulation cap. Asubsequent order, facilities, they do not automati­ transferred to a state prison, where he was agreed to by the City, provided for sanctions cally trump the powers ofthe fed­ punished for refusing to submit to a random for noncompliance and the release of some eral courts to enforce the visual body-cavIty search done pursuant to inmates, and a further order gave the sheriff Constitution or a consent decree. prison procedure. additional release powers in contravention of The amicus misstates the law At n.4: The court need not consider state and local laws. Eventually the defendants when he argues thatfederal courts whether pretrial detainees have more exten­ were found in contempt and sanctions of lack authority to employ the early­ sive Fourth Amendment protections than con­ $300 per day per inmate over the cap were release and state-law-override victs because what is at issue is a "prison reg­ imposed. The fines were directed to be mechanisms. The scope ofthe dis­ I ulation" subject to the Turner reasonable placed in a fund to be controlled by the City trict court's power to fashion I: relationship standard, and the "legitimate and used for population-reduction programs. equitable remedies is highly con­ ! i penological interests" at issue are the same Appellate courts defer to district courts' textual andfact dependent. One for detainees and for convicts. findings of contempt. At 856: "Moreover, def­ simply cannot state that there is Applying the Turner standard, the court erence to the district court's exercise of dis­ no case in which the remedial concludes that the regulation is probably rea­ cretion is heightened where the court has scheme taken in this case is sonable, since the searches promote institu­ been overseeing a large, public institution for appropriate. The proper question tional security from contraband. There are no a long period of time." The contempt stan­ is whether it is appropriate under I alternatives to the searches, and the manner dard is whether defendants "have performed the facts presented. [citations and in which they are conducted (behind the 'all reasonable steps within their power to footnote omitted] I closed door of the inmate's room with only insure compliance' with the court's orders." Here, the defendants had several opportu- I 16 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL I ! ,-i \' nities to comply with the consent decree, and county jail personnel are dismissed because to explain their supposed support for them. the district court did not prescribe a remedy. he is unable to show a causal connection The court declines to "rubber stamp" In this context, its grant to the sheriff of between an alleged policy of retaliation and counsel's opinions. At 1055: early-release and citation-release authority his injury, since the isolation was imposed .. .Although the opinions ofclass within the existing limits of state law was a after an independent hearing and findings counsel are a substantialfactor proper exercise of authority. Since the sheriff that he was guilty. in the court's evaluation ofapro­ retained discretion, "the early-release provi­ posed consent decree under this sion was an attempt to respect the institution­ Religion-Practices standard, the degree ofdeference al competence of prison administrators and Munir v. Scott, 792 F.Supp. 1472 accorded counsel's judgment minimize intrusion upon their authority." (E.D.Mich. 1992). The total ban on Muslim depends on, among other things, (863) However, the extension of the sheriff's prayer oils, now rescinded, was unconstitu­ the amount ofsupport or opposi­ authority to include overriding state law lim­ tional under Turner. The new policy, ~~ich tion within the class to the settle­ its (Le., by releasing sentenced inmates permitted nonflammable, nonfluorescent oils ment.... Where the class "speaks before service of their minimum sentences) in plastic containers from an authorized ven­ in severtll voices"-in other was an abuse of discretion; the court should dor, is admissible in evidence notwithstand­ word$,I»here there is disagree­ have waited to see if the threat of sanctions ing the usual rule barring evidence of subse­ ment among class members as to induced compliance and should have made quent repairs, since it was not offered as the desirability ofaparticular findings that other measures were inade­ direct evidence of negligence or culpability settlement-"it may be impossi­ quate. At 864-65: "If the threat of contempt but as evidence of the feasibility of alternative ble for the class attorney to do sanctions proves ineffective and if the district measures. more than act in what he believes court finds that other alternatives are inade­ The prohibition on incense is upheld to be the best interests ofthe class quate, the court could consider authorizing because incense can be used to mask the as a whole. " .. .However, the pro­ the sheriff to override certain provisions of smell of marijuana, "spud juice," or smoke portion ofa class that objects to a state law to assure compliance." from arson attempts, and other prisoners proposed settlement may at some may take offense at the smell with resulting point become so large or the DISTRICT COURTS disruption. number ofmembers endorsing the settlement so small, that in a Procedural Due Process­ Class Actions-Settlement of very real sense it may be said that Disciplinary Proceedings ActionslModification ofJudgments the attorney has settled the law­ Winston v. coughlin, 789 F.Supp. 118 Wyatt by and through Rawlins v. Horsley, suit unilaterally, without the (W.D.N.Y. 1992). The filing of fabricated 793 F.Supp. 1053 (M.D.Ala. 1991). In this backing, andpresumably not in misbehavior reports does not deny due latest incarnation of Wyatt v. Stickney, the best interests of, "the class. " process, but an allegation that fabricated counsel for the plaintiffs and defendants sub­ ...However difficult it may be to reports were filed to conceal the officers' mitted proposed consent decrees modifying translate such a standard into a Eighth Amendment violations is sufficient to several of the court's previous orders. The bright-line rule, the court has lit­ withstand a motion to dismiss. court received written objections from tle difficulty concluding that this numerous mental health advocacy organiza­ "point" is passed where, as in this Searches-Living Quarters! tions, treatment professionals, and former case, a number ofconcernedpar­ Searches-Person-Prisoners patients, and heard "sharply negative" testi­ ties have attacked the proposed Blanks v. Smith, 790 F.Supp. 192 mony. No evidence was presented in support changes, but not a single class (E.D.Wis. 1992). The plaintiff's allegation of the agreements and no members of the member has come forward in that he was subjected to strip and cell search­ court-created adVisory committee appeared favor ofthe consent decrees and, es every day for two weeks stated "at least an arguable" Eighth Amendment claim.

Use of Force Winder v.jeak, 790 F.Supp. 1403 (N.D.Ill. 1992). The plaintiff, who walked with a leg brace, stopped to regain his strength and was pushed by an officer to speed him up, caus­ ing him to fall. Areasonable jury could find that the officer's conduct was malicious, pre­ cluding a grant of summary judgment to the defendant. At 1407: "The exertion of force against a handicapped individual, knocking that person to the floor and causing pain, is not de minimis for Eighth Amendment pur­ poses." The court ignores the fact that the plaintiff was a detainee and not a convict. The plaintiff alleged that he was told that if he filed a grievance he would be given a dis­ ciplinary charge. He did, and he was, and spent 12 days in isolation as a result. The plaintiff's official-capacity claims against

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 17 as far as the court can tell, plain­ for submitting additional evidence as to of the privacy rights of inmates." tiffs' counsel has agreed to the those matters that the parties really want to settlement "without the participa­ pursue. Confiscation and Destruction of Legal tion or consent" ofany "class Materials/Access to Courts members, " named or absent.... Privacy Duffv. Coughlin, 794 F.Supp. 521 [citations omitted] Riddick v. Sutton, 794 F.Supp. 169 (S.D.N.Y. 1992). Some of the plaintiff's legal The court declines to construe the lack of (E.D.N.C. 1992). The assignment of female materials were sent home as unauthorized opposition from current members of the officers to all assignments in a male prison property because officers thought they were class as tacit support, since the class is one except for strip searches is upheld under the. not his own legal work; the package was of mentally ill persons, and adds that "to the Turner standard, even though the plaintiff returned to the prison and then lost. extent plaintiffs' counsel cannot receive input has "a constitutional right to privacy in no(', In the absence of any evidence of prejudicial from class members, he must seek it from being viewed nude or partially nude by female effects on pending legal actions or other con­ such secondary sources as public interest correctional guards." (71) Defendants' crete harm, the plaintiff has no claim for denial organizations, former mental patients, and practice is rationally related to security and of access to courts. Mere negligence or sloppy family members and caregivers who have to equal employment; prisoners have alterna­ management does not support a claim of denial day-to-day contact with class members in the tive ways to maintain privacy (e.g., taking a of court access; "negligence resulting from a state's institutions." (056) towel into the shower or a newspaper into the reckless disregard or deliberate neglect" might The court spells out its substantive toilet area); restricting assignments by gender support liability in a proper case.• concerns, which include relaxed standards could cause staff shortages. There is no evi­ for the application of electroconvulsive dence of unprofessional behavior by female john Boston is the director ofthe therapy and the apparent authorization of staff when they viewed male inmates nude or Prisoners' Rights Project, LegalAid indefinite continuation of emergency partially nude. At 173: "The court emphasizes Society ofNew York. He regularly restraint and seclusion without physical that its holding in this case is not meant to contributes this column to the NPP examination. The court directs a schedule confer judicial approval on flagrant violations JOURNAL.

18 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL ------

Facility, Lorton. Representative of these D.C. Public Defender Works to cases, and the successful outcomes PRP has achieved, is the court's unpublished Defend Prisoner Rights April 10, 1992 memorandum order in Byrd v. Stempson and Ridley, Case No. mal negotiation and problem-solving. The SP-2909-91 (D.C. Sup. Ct.) (Hon. Curtis substantive areas of emphasis include .~ von Kann). medical and dental care, administrative'~-; Petitioner Byrd contended that he had n 1987 the Council for the District of segregation, and disciplinary due process. been wrongly held in administrative segre­ Columbia amended the Public In addition, individual cases and projects gation at the Maximum Security Facility I Defender Service Act l to permit Public have challenged the D.C. Departme~t, of without due process reviews, after his Defender Service (PDS) attorneys to rep­ Corrections' (DOC) failure to provi9.~ transfer from the Occoquan Facility, resent District of Columbia prisoners in youthful female offenders equal treatment Lorton---.:...a m,edium custody prison-in limited types of civil problems relating to under local law, and physical and bureau­ July 1991. T.1J.e basis for the transfer was the conditions of their confinement. The cratic barriers experienced by disabled findings otPtisconduct in the form of Council adopted this amendment on the residents. Athumbnail sketch of PRP's "lack of cooperation," "out of place," and i heels of the 1986 Occoquan Facility riots, major initiatives provides the best summa­ "willful disobedience to a general order" in which one of the District's largest pris­ ry of the program's diverse caseload. at two Occoquan adjustment board hear­ ons was burned and severely damaged,2 ings in June, 1991. After a hearing, the I and the continuous overcrowding prob­ Medical and Dental Care court found that the.l)epartment could not I lems the District's prisons and jail had From the start of the program, PRP has justify its conclusion that Byrd constituted I been experiencing for almost two received a great many complaints regard­ a "threat" to himself or others, and that decades. 3 The office opened with two ing the denial and adequacy of health care the Department had failed to provide attorneys and a secretary at a trailer on the within the D.C. DOC. As a consequence, proper 30-day due process reviews, as grounds of the District's Lorton (Virginia) PRP has actively pursued regular litigation required by the local Lorton Regulations prison complex. in this area. Indeed, PRP's first case chal­ Approval Act (LRAA) of 1982. The court In principle, the Prisoners' Rights lenged the medical treatment provided a ordered the Department to release Mr. Program (PRP) was intended to serve the Lorton resident. The D.C. Superior Court Byrd back to medium custody. District's entire 8,400+ sentenced and issued an order directing the Department detained population then held in District to provide the therapy recommended by Disciplinary Dne Process correctional institutions. 4 PRP concentrat­ plaintiff's expert. Like all contemporary U.S. prison sys­ ed its efforts on certain types of cases. Similarly, in Yarbaugh v. Roach, et al., tems, the D.C. DOC runs a disciplinary sys­ Unlike the National Prison Project, the 736 F. Supp. 318 (D.D.C. 1990), PRP rep­ tem. These rules provide for both adjust­ Prisoners' Rights Program was conceived resented a D.C. Jail resident with multiple ment board (disciplinary) and housing as an office that would undertake individ­ sclerosis, a demyelinating neurological board hearings.s PRP began offering indi­ ual representation as well as class action disorder requiring ongoing drug treat­ vidual representation at a limited number litigation, since many District correctional ment, routine-maintenance physical thera­ of prison disciplinary hearings under the facilities had already been the subject of py, and regular monitoring by a neurolo­ LRAA. PRP is now on schedule to handle major conditions and overcrowding cases. gist. The court concluded that there was between 250-275 hearings in its third year Like the District of Columbia prison no dispute that multiple sclerosis consti­ of adjustment board representation. population, applications for assistance to tuted a "serious medical need" and that In addition to representation at the dis­ PRP have increased year by year, ranging the Department and its personnel had ciplinary hearings and administrative from 715 in the first full year of operation been "deliberately indifferent" by failing to appeals, PRP has litigated to ensure due to more than 2,150 in 1992. provide regular examinations, treatment, process guarantees are provided in disci­ From the outset it was evident that two and acceptable living conditions for the plinary cases. In one case brought in U.S. attorneys without paralegal support could resident, whose moderate-to-severe District Court, the magistrate concluded not capabl~. handle more than 700 impairment had made him wheelchair­ that plaintiff's right to procedural due requests annually for individual represen­ bound. Other cases have challenged the process had been violated by the tation, even by pursuing such time-hon­ inordinate delays in providing artificial Department's failure to make specific fac­ ored strategies as the class action. 1\vo limbs to residents and systemic failures in -tual findings and include those in its writ­ additional attorneys and a staff investigator dental care that make residents without ten finding of guilt. The magistrate recom­ joined the program in 1990. With the teeth wait as long as three years for mended that because "significant adverse added staff, PRP continued to expand its dentures. collateral consequences" attached to the legal services program to address the insufficiently supported finding of guilt, needs of its clients, although the number Administrative Segregation the board's decision should be vacated of applications for legal assistance also As in many prison systems, residents and all references tothe charges continued to increase. within D.C. DOC facilities routinely experic expunged.6 The program of legal services that has ence periods of lengthy, unwarranted PRP has brought disciplinary due evolved consists of a dynamic synthesis of detention on management segregation process cases in D.C. Superior Court also, individual representation and class advo­ without proper due process review. achieving comparable results. 7 Most cacy; formal representation at prison Beginning in 1990, PRP has brought a recently, in fall of 1992, PRP initiated a administrative hearings, before other continuing series of individual cases chal­ law student clinic on LRAA disciplinary municipal agencies enforcing District law, lenging improper administrative segrega­ hearings in association with the Howard and in state and federal courts; and infor- tion detentions at the Maximum Security University School of Law. While the clinic

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 19

t is only being conducted on an experimen­ of Department facilities and programs, and Columbia through the Prisoners' Rights tal basis for the current year, we hope that failure to create and update a Section 504 Program. PRP will continue its efforts on it will become an established program. Implementation Plan. This matter was also behalf of D.C. prisoners whenever consti­ settled in 1992 and is monitored by the tutional and statutory rights are at risk. • Other Initiatives and Cases D.C. Department of Human Rights. While PRP has a long-standing commit­ Similarly, PRP represented Muslim Robert Hauhart is supervising attorney ment to individual representation, many of inmates in a consolidated series of cases in ofPDS' Prisoners' Rights Program. its projects and cases address problems U.S. District Court. In this case, the DOC affecting groups or classes of prisoners in agreed to incorporate the changes PRP I Title 1 D.C. Code Section 2701, et. seq. the D.C. Department of Corrections. One of sought on behalf of the class in a new 2 See, generally, Inmates ofOccoquan v. Barry, 650 PRP's earliest cases was a class action Departmental Order addressing regula­ F. Supp. 619 (D.D.C. 1986), on appeal 844 F.2d 828 (D.C. Cir. 1988), rehearing en banc 850 F.2d 796 brought in D.C. Superior Court challenging tions and procedures for assuring freedolll (D.C. Cir. 1988). the Department's failure to implement the of religion and religious observance. A 3 See "Singing the D.dVrison Blues," Legal Times, District of Columbia's 1985 Youth monitoring panel of DOC representatives, Washington D.C., Aug~st 8,1988 at 1, and Campbell Rehabilitation Act (YRA) with respect to Muslim reSidents, Department chaplains, v. McGruder, 416 F:Supp. 100 (D.D.C. 1975), women offenders. The YRA requires spe­ and PRP attorneys addresses implementa­ for some of the hiStory of the overcrowding cial educational, vocational, drug, and tion of the new Departmental Order. problem. 4 In addition to the D.C. prisoners held in D.C. cor­ therapeutic counseling efforts directed at In two other cases,s PRP attorneys par­ rectional facilities, as many as 2,800 additional D.C. the youthful offenders convicted and sen­ ticipated in challenges to portions of the prisoners were held in U.S. Bureau of Prisons insti­ tenced under the Act. PRP charged that the District of Columbia's Good Time Credit tutions (approximately 2,000) or state prisons or Department had failed to create and main­ Act (GTCA) (1986) as they applied to indi­ county jails outside D.C. tain such programs for the class of women viduals. While these cases were unsuccess­ 51n both instances, D.C. Department of Corrections sentenced under the Act. On the eve of ful in the courts, both cases led to legisla­ employees appointed by each facility administrator trial, the District signed a 30-page consent tive revisions or wider applications of the act as either the hearing officer or members of the three-person boards. decree agreeing to more programs and beneficent intent of the GTCA. Similarly, 6 See Horns v. D. C. Department ofCorrections, et better classification procedures. PRP attorneys have chosen several pro se al., Civ. No. 91-1217 (D.D.C.) (Report and Recom­ In another class action, PRP filed a com­ cases dismissed for failure to state a claim, mendation of Magistrate Patrick Attridge, October plaint with the D.C. Office of Human Rights or on summary judgment, in local United 23, 1991) (Order of Judge Thomas F. Hogan, urging that the DOC was in violation of the States District Court to challenge on November 25,1991). District's Human Rights law, D.C. Code appeal, in an effort to ensure that proper 7 See Cockrell v. Braxton, et al., Case No. SP-251-92 (D.C. Sup.) Oudge Margaret Haywood's Order of May Section 1-2501, et seq., and Section 504 of standards and procedures for reviewing 19, 1992) (inmate was denied the right to call wit­ the Rehabilitation Act, by discriminating cases are upheld in pro se actions. nesses in violation of procedural guarantees of local against the physically and mentally handi­ The Public Defender Service is proud of governing law). capped, failing to reduce and remove the contribution to prisoners' rights it has sMossv. Clark, 886 F.2d 686 (4th Cir. 1989), and architectural and social barriers to full use been able to make in the District of Fields v. Keohane, 954 F.2d 945 (3rd Cir. 1992).

20 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL .(cont'dfrom page 2) "like a tour through the circles of hell." media interests. This will compel the I for incorporation and developed prelimi­ Relying on the mail and very limited tele­ courts to decide on principle, rather than nary plans for raising funds in anticipation phone calls and visits, I worked feverishly on political expediency. of the inevitable transition of Odyssey to with the community sponsors of Odyssey Ifprisoners can establish their own pub­ the community. to coordinate the transition to the commu­ lishing companies, they can establish simi­ Meanwhile, the superintendent at Nor­ nity. In addition to the onerous financial lar projects in other areas. For example, folk prison conducted a private investiga­ and administrative demands of the magiC prisoners could establish paralegal organi­ tion and became convinced of my inno­ zine, my stint in the hole had the effect of; zations to work exclusively on prisoners' cence. Without his support at this critical intimidating potential prison writers through­ rights issues, or develop collective funds to juncture, Odyssey would have been aborted. out the Massachusetts system. Emergency hire lobbyists to advance their political We worked even harder because we now letters were sent to three of the nation's agenda with the legislature and the media. j understood that being competent and seri­ most celebrated prisoner writers; Datiine Prisoner organizations must transfer their ous journalists was in itself an act of resis­ Martin, Tim Smith, andJean Harris con­ base of oper~tions to the community. I tance and empowerment as important as tributed articles to Odyssey in solidarity. Prisoners,¢annot rely on the good will I1 the issues treated in our journal. "The or good faith of prison officials to respect 1 process"-the commitment to excel­ their right to free speech or their right to lence-bonded us together far more than political expression. Nor should they be the larger prison issues that brought us lulled into accepting the paternalistic tra­ together in the first place. dition of liberalism which, though well­ By its second issue, Odyssey had be­ intended, has historically fostered a debili­ come, by default, the only voice advocating tating dependence. Only models of self­ rehabilitation within the state. Aliberal empowerment will result in meaningful approach to corrections and solving the resistance to "legitimate," but misused, problem of crime had become increasing­ authority. ly unpopular with the electorate, and its Many liberal prison activists claimed that The magazine was declared contraband advocates remained aloof from the public writing for Odyssey might jeopardize their at two state prisons in Massachusetts, but debate because of the political and profes­ access to prison, upon which their work when the Massachusetts Chapter of the sional risks. depended. Still, compared to prisoners, it American Civil Liberties Union (ACLU) ini­ The superintendent was fired and was considerably easier to attract commu­ tiated formal inquiries and threatened the escorted off the grounds. His removal nity writers for the magazine. DOC with legal action, authorities there from office marked the change from a Our primary liaison between the prison reversed the ban. Despite the formal somewhat liberal to very conservative state and the community was a woman who had acknowledgement by prison officials that government. dedicated her life's work to achieving Odyssey is not contraband, there have 1\vo weeks after the second edition was prison reform. Her involvement with been numerous reports of the magazine released, Odyssey was placed "under Odyssey made her a threat to prison offi­ mysteriously "disappearing" in the mail. investigation" by the security forces at cials. After 20 years, she was suddenly The ACLU is actively monitoring the situa­ Norfolk. I was returned to "the hole." investigated by the Department of tion and advising our staff about strategic According to the disciplinary report filed Correction and barred from the prisons considerations. Unfortunately, the ACLU by the prison authorities, the reason that I for several months. has conceded that virtually nothing can be was locked in isolation was because I had Odyssey's third edition was published in done to protect Odyssey writers from refused to provide a "sufficient quantity of defiance of all predictions of failure. It was harassment and retaliatory actions. urine" for them to test for drug use. They an important statement that prisoners are Authorities will simply conjure up fictitious claimed that this was a routine and ran­ capable of creating and organizing mean­ charges (as they did with me) and make it dom procedural request. I was found not ingful projects independent of support impossible to prove a conspiracy to guilty, a disposition that is rare at such from the prison administration. restrict prisoners' First Amendment rights. hearings. Rather than be released into the In light of recent court decisions cur­ The First Amendment is not a right that is general pOl1ulation of the prison as is the tailing prisoners' First Amendment rights, granted, but a risk. Odyssey's future will policy when acquitted, I was transferred to it should be painfully clear that reflexive depend on that risk. • the state's maximum security facility. Due claims of "security" by prison administra­ to a series of "clerical errors," I spent tors will invariably and inevitably LukeJanusz is the publisher and editor three months in solitary confinement with supercede prisoners' rights to free ofOdyssey magazine. He was recently a loss of all my privileges and remained at speech. Prisoners must establish their releasedfrom prison after serving more maximum security for three more months. own publishing companies, creating inde­ than 13 years. Odyssey needs your sup­ The stereotypical image of prisoners as pendent legal entities beyond the reach of port to continue to publish. Anyone who inherently inferior, irrational, angry, and prison authorities. This will greatly com­ would like to help, please write to: violent was challenged by the existence of plicate legal matters both for prison Odyssey, Box 14, Dedham, MA 02026. A Odyssey. In fact, the rhetoric and ideology administrators and for the courts by intro­ year's subscription to Odyssey is $19.95. of the Weld administration was by compar­ ducing third-party interests. Judges will The institutionalprice is $25. Copies are ison far more angry, irrational, and violent tend to be more cautious in deciding First furnishedfree to prisoners; however, a I than anything we would even consider Amendment issues if the rights of inde­ $3 postage and handling charge is advocating. Governor William Weld of pendent publishing companies are reqUired with each edition. I Massachusetts pronounced that he was "to involved. The strategy, of course, is to the right of Attila the Hun" when it came to entangle and interweave free speech rights 1107 U.S. 2254 (1987). prison policy, and that prison should be of prisoners with those of established 2109 S.C!. 1874 (1989). Iill m THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 21 I r ... ,...... te

Coalitions: Developing Expertise and Advocacy Other prisoners' rights Changes Brought and HlV/AIDS service organizations have by Activists for formed coalitions that focus on HlV/AIDS and Prisoners with prisoners. The most effective have been the AIDS Correctional Services Program in Missouri, the Indiana HlV Advocacy ACT UP: AVoice On the Outside Prison Issues Working On World AIDS Day, December 1, many Group,andtheAlliance

ACT UP chapters focused attention on pris­ for Inmates With AIDS in .Q o ...c:: oners and HlV/AIDS. This focus was select­ New York City. D­ c... ed by ACT UP/San Francisco Prison Issues The Criminal Justice c... Working Group, one of a small but grow­ AIDS Network (CJAN) Z ing network of advocates for prisoners (now the Correctional Jackie Walker, AIDS information coordinator at the with HlV/AIDS. Services Program) began Prison Project. Although there are ACT UP chapters in in 1986 when a volunteer most states those working on prison issues priest active in jail work encountered an For prisoners in New York State, the are limited primarily to large metropolitan HlV-positive woman prisoner. As a result of Alliance for Inmates With AIDS (AllIA) areas. The San Francisco chapter has this meeting the priest organized a task combines the strength of over 20 organi­ recently been involved in supporting the force of Catholic charities, and eventually zations. AllIA was founded as part of the hunger and medication strikes of prison­ received funding for a program which pro­ Correctional Association's AIDS In Prison ers at the California Medical Facility in vides post-test counseling and referrals for Project roundtable of people working in Vacaville. Judy Greenspan, former NPP prisoners with HlV/AIDS. It also acts as a the field of HlV/AIDS and prison. AIDS information coordinator, finds a par­ resource network, often connecting pris­ Members of the AllIA provide a wide range ticular irony about the conditions at oners with HlV/AIDS to social services of services for prisoners and parolees, Vacaville. "What's scary is there was a before their release. .including education, support groups, dis­ landmark settlement in Gates v. Deuk­ In Indiana, the original catalyst was the charge planning, housing, referrals, and mejian 1 where all these problems were Indiana HlV Advocacy Program and later advocacy. supposed to be corrected, but the overall the Indiana Community AIDS Action Housing for parolees and the Medical mission to lock up folks and not treat pris­ Network. The Indiana Community AIDS Parole Law have been two complicated oners never act1J.ally changed," says Action Network is a statewide advocacy areas the AllIA has tackled with success. .Greenspan. program focused on eliminating the barri­ AllIA members are always looking to iden­ In New York City, the Prison Issues ers of discrimination for people with tify transitional housing, creating space in Cominittee has protested the treatment of HlV/AIDS. The Corrections Working Group existing programs, or talking with city prisoners with HlV/AIDS. The Wisconsin has received funding to review correction­ agencies to expand housing for people on chapters have dema,nded investigations al issues and HlV/AIDS in Indiana, and parole. The AllIA has also played a crucial into the deaths of state prisoners Donald includes members from the HlV/AIDS role in monitoring the Medical Parole Law Woods, Ricardo Thomas and Dennis Hall community, ex-prisoners, social service by sponsoring community forums on the (a person with AIDS who died a few days groups, and corrections. process and pressuring the New York after being jailed for a traffic violation). "We have opened up the channels of Department of Corrections and Governor On World AIDS Day, the Milwaukee chap­ communication," says Paul Chase, director Mario Cuomo to speed up review of med­ ter demonstrated at Racine County Jail in of the project, "with policymakers who ical parole applications. _ memory of Hall. As a collective force, ACT realize the need to rely on us for informa­ UP chapters have provided an outside tion on HlV/AIDS and prisoners." As a Jackie Walker is the Project's AIDS infor­ voice in exposing inhumane living condi­ result, the incoining Department of mation coordinator. tions and deaths of prisoners with Corrections administrator called a meeting HlV/AIDS that would have otherwise gone with the group to discuss comprehensive 1 No. CIV 5-87-1636 LKK-JFM (E.D. Cal., filed Jan. 6, unnoticed. education for prisoners and staff. 1988).

22 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL blications

Bibliography of Material ~n 1990 AIDS in Prison _--..L__ Women in Prison ;~; _-,-_ Bibliography lists resources lists information on this subje~t on AIDS in prison that are available from the National Prison available from the National Prison Project and other sources ,'. Project and other sources, concerning health care, drttg including corrections policies on treatment, incarcerated mothers, AJ;pS, educational materials, juveniles, legislation, parole, the rn,~dical and legal articles, and death penalty, sex discrimination, J~cent AIDS studies. $5 prepaid race and more. 35 pages. $5 "from NPP. prepaid from NPP. AIDS in Prisons: The Facts APrimer for Jail Litigators _-L_ for Inmates and Officers is _---1-_ is a detailed manual with practical a simply written educational tool suggestions for jail litigation. It for prisoners, corrections staff, includes chapters on legal analysis, and AIDS service providers. The The National Prison the use of expert witnesses, class booklet answers in an easy-to­ --,-_ ProjectJOURNAL, $30/yr. actions, attorneys' fees, enforce­ read format commonly asked $21yr. to prisoners. ment, discovery, defenses' proof, questions concerning the remedies, and many practical sug­ meaning of AIDS, the medical The Prisoners' Assistance treatment available, legal rights ---,-__ Directory, the result of a gestions. Relevant case citations and correctional standards. 1st and responsibilities. Also national survey, identifies and Edition, February 1984. 180 pages, available in Spanish. Sample • describes various organizations and paperback. (Note: This is not a copies free. Bulk orders: 100 agencies that provide assistance to "jailhouse lawyers" manual.) $20 copies/$25. 500 copies/$100. prisoners. Lists national, state, and prepaid from NPP. 1,000 copies/$150 prepaid. local organizations and sources of assistance including legal, library, ACLUHandbook,The AIDS, family support, and ex­ TB: The Facts for Inmates (order Rights of Prisoners. Guide to offender aid. 9th Edition, published from _--..L__ and Officers answers the legal rights of prisoners, September 1990. Paperback, $30 ACLU) commonly-asked questions about parolees, pre-trial detainees, etc., prepaid from NPP. tuberculosis (TB) in a simple in question-and-answer form. question-and-answer format. Contains citations. $7.95; $5 for The National Prison Project D"iscusses what tuberculosis is, prisoners. ACLU Dept. L, P.O. Box --'-- Status Report lists by state how it is contracted, its symp­ QTY. COST 794, Medford, NY 11763. those presently under court order, toms, treatment and how HIV or those which have pending infection affects TB. Single copies litigation either involving the free. Bulk orders: 100 copies/ entire state prison system or $25.500 copies/$100. major institutions within the state. QTY. COST 1,000 copies/$150 prepaid. Lists cases which deal with OO'ercrowding and/or the total conditions of confinement. (No jails except District of Columbia.) Updated]anuary 1993. $5 prepaid I QTY. COST from NPP. I

Fill out and send with check payable to: Name _

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THE NATIONAL PRISON PROJECT JOURNAL WINTER 1993 23 he following are major develop­ adult prisons. On December 7, the Court brief in tWs Supreme Court case, wWch ments in the Prison Project's litiga­ of Chancery accepted a settlement by the involves the issue of whether the Ttion program since October 1, parties on overcrowding and tuberculosis. Constitution is violated when a prisoner is 1992. Further details of any of the listed control issues. exposed to levels of environmental tobacco cases may be obtained by writing the smoke (ETS) that'iPose a serious risk to Ws Project. Hadix v. Johnson-The National Prison or her health. Or:.a1 argument was heard in Project appears in the mental health por­ the Supreme Court on January 13, 1993. ~~I,_~. Casey v. Lewis, filed on behalf of all tion of this case wWch concerns condi­ Arizona state prisoners, challenges legal tions at the State Prison of Southern u.s. v. Michigan/Knop v. Johnson­ access, health care, and practices relating MicWgan in Jackson. On December 1, These cases challenge conditions in the to assignment to segregation. On 1992, the plaintiffs filed a number of MicWgan state prisons; the National Prison November 19, 1992, the court held uncon­ motions to enforce or modify the medical Project appears as amicus in u.s. v. stitutional the state's policies restricting and mental health provisions of the con­ Michigan. On December 1, 1992, in U.S. prisoners' access to the courts. These sent decree, and defendants filed motions v. Michigan, the court ruled on a motion policies include denying legal assistance to to dismiss these portions of the decree. filed by the Department of Justice (DOJ) prisoners under lockdown; naming as The court deferred consideration of the seeking to vacate most of the consent legal assistants prisoners who have no defendants' motions pending resolution of decree, a motion filed under a new DOJ legal training; lack of assistance to illiter­ plaintiffs' enforcement motions. An evi­ policy wWch held that the Department ate or non-English-speaking prisoners; dentiary hearing is scheduled for January would refuse to enforce consent decrees restricting access to legal supplies; and 27-29, 1993. that went beyond constitutional require­ arbitrary denials of prisoners' right to ments. In its ruling, the court dismissed confidential phone calls with attorneys. A Hamilton v. Moria! challenges condi­ some relatively minor portions of the special master has been named to develop tions at the Orleans Parish Prison, the decree. In Knop, on October 16, 1992, the statewide injunctive relief. municipal jail for the City of New Orleans, Sixth Circuit Court of Appeals affirmed a which includes a juvenile facility operated favorable district court order on legal mail Cody v. Hillard challenges conditions by the sheriff. In response to a contempt and winter clothing, but reversed orders on at the South Dakota State Penitentiary. On motion concerning disciplinary practices racial slurs and access to toilets. The court November 25, 1992, the district court at the juvenile facility, the court-appointed also affirmed the finding of a constitutional granted plaintiffs' motion for enforcement expert issued a report recommending the violation regarding access to the courts, but of its order concerning environmental development of disciplinary practices and remanded to the district court for modifica­ conditions and reestablished a panel of procedures related to use of force and tion of the remedy. The court also affirmed experts to monitor physical plant issues. lockdown procedures. Rule 11 sanctions against defendants. Plaintiffs filed a petition for writ of certio­ Dickerson v. Castle challenges over­ Helling v. McKinney-On October rari in the Supreme Court on January 14, crowding and conditions in Delaware's 14, 1992, the NPP filed an amicus curiae 1993 on the issue of racial slurs.

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24 WINTER 1993 THE NATIONAL PRISON PROJECT JOURNAL