States Fail to Meet Critical Need ofIndigent Defendants

-continued from front page tied. At the july 31, 1985 hearing where dissatisfaction over last-minute stays of his September 5, 1985 execution date There has been no action, execution, and the burden that they in­ was set, Washington's trial counsel however, in terms of funding or flict upon judges. moved to have new counsel appointed actual recruitment in most "Death Professor Anthony G. Amsterdam to represent him in connection with any of New York University, a leading capi­ habeas corpus proceedings, and the mo­ Belt" states, with the exception of tal punishment theoretician, criticized tion was denied. This left him without an Florida. justice Powell for not recognizing that attorney to pursue post-conviction pro­ the system, described by Powell as "per­ ceedings on his behalf. By late August, missive" and one which "permits the his date with the executioner was only necessary expertise, or by overburdened now familiar abuse of process," serves a two weeks away and he had not yet be­ lawyers from public interest legal pro­ beneficial purpose to be balanced against gun either state or federal habeas corpus jects. Some are afforded no representa­ the cost of delay. Only two weeks be­ proceedings. tion at all. fore justice Powell's speech, the Su­ With the clock ticking, frantic ef­ Some state government officials feel preme Court heard argument in Barefoot forts were made by Marie Deans of the that to execute someone who does not v. Estelle, 463 U.S. 880 (1983). The Virginia Coalition on jails and Prisons, have an attorney would cause a "black NAACP Legal Defense Fund presented the NAACP Legal Defense Fund, and eye" for their state. Largely because of evidence in an amicus curiae brief show­ others to find a volunteer attorney for this potential embarrassment to the ing that between 1976 and 1983, federal Washington. Pleas for lawyers were sent state and to the legal profession, a few courts of appeals had decided a total of as far as New York, Washington, D.C., state bars and legislatures have belatedly 41 habeas appeals, and had ruled in favor and Chicago, but all were rejected. launched studies of the problem. There of the death row prisoner in 30, or Washington sat awaiting his execution. has been no action, however, in terms of 73.2%, of them. Finally, attorneys at Paul, Weiss, Rifkind, funding or actual recruitment in most "Contemplate what this means," Wharton & Garrison in New York un­ "Death Belt" states, with the exception says Amsterdam. "In every one of these dertook a last-minute emergency effort of Florida. [See CCR story, this issue, cases, the inmate's claims had been re­ to obtain a stay, and were successful. p. 6] Despite slight movement to meet jected by a state trial court and by the Earl Washington's situation is unfor­ the pressing need, the situation has not state's highest court, at least once and tunately not unique. Many individuals improved. In fact, it has deteriorated often a second time in state post-convic­ who have been sentenced to death are due to the rising numbers of people sen­ tion proceedings; the Supreme Court unable to obtain a lawyer for the final tenced to death, mounting executions, had usually denied certiorari at least once stages of their appeals, and are now in and the dwindling number of attorneys and sometimes twice; and a federal dis­ danger of being executed without having willing, or able, to handle capital cases trict court had then rejected the in­ exhausted the appeals provided by law. during collateral proceedings. mate's claims of federal constitutional This is happening not for lack of claims This "system" of representation has error infecting his conviction and/or to be brought, but because the prisoners also resulted in chaos and disarray in the are too poor to pay lawyers to bring courts. Often a lawyer is found only at them. Of the 1,911 death-sentenced in­ the last minute. In the rush to prepare mates, 99.5% are indigent. the case, important issues may be over­ Under the federal habeas corpus looked Or necessary investigation may L statute, a death row inmate has the right not take place. Courts are required to OF THE to petition the federal court to review make judgments about life and death NATIONAL PRISON PROJECT his or her case to determine whether matters on short notice and on an emer­ there has been a violation of the Consti­ gency basis. judge john Godbold of the Editor: Jan Elvin tution durin( arrest, trial, conviction or Eleventh Circuit Court of Appeals has Editorial Asst.: Betsy Bernat sentencing. Indeed, the dire conse­ pOinted out that these emergency pro­ quences of the death penalty demand ceedings are then misunderstood by the Alvin J. Bronstein, Executive Director rigorous judicial scrutiny. public, while imposing tremendously dif­ The National Prison Project of the While many states provide lawyers ficult demands on both counsel and the American Civil Liberties Union Foundation 1616 P Street, N.W. to poor people sentenced to death dur­ courts. Washington, D.C. 20036 ing the trial phase and on direct appeal Former Supreme Court justice (202) 331·0500 to the state supreme court, representa­ Lewis Powell, in a 1983 speech to the The National Prison Project is a tax--exempt foundation~ tion ends after the sentence has been Eleventh Circuit judicial Conference, funded project of the AClU Foundation which seeks to strengthen confirmed on automatic appeal to the complained of persons convicted "five or and protect the rights of adult and juvenile offenders; to improve overall conditions in correctional facilities by using existing ad­ state supreme court. It is then up to the six years ago" having "their cases of re­ ministrative, legislative and judicial channels; and to develop al­ indigent inmate to locate a lawyer to petitive review move sluggishly through ternatives to incarceration. The reprinting ofJOURNAL material is encouraged with the I prepare a petition for a writ of habeas our dual system." He also expressed stipulation that the National Prison ProjectJOURNAL be credited corpus. As a result, many are repre­ with the reprint. and that a copy of the reprint be sent to the sented by volunteer lawyers who lack editor. 'Remarks of Lewis F. Powell Jr., former Associate The JOURNAL is scheduled for publication quarterly by the Justice, Supreme Court of the United States, Elev" National Prison Project. Materials and suggestions are welcome. The National Prison ProjectJOURNAL is designed by James Jon Elvin is the editor ofthe enth Circuit Judicial Conference, Savannah, Geor­ True,lnc. NPPJOURNAL gia, May 8-10, 1983.

2 SUMMER 1987 Death Penalty Proceedings

death sentence. Yet in over 70% of the held that prisoners are entitled to the cases, a federal court of appeals found appointment'of counsel upon request to merit in one or more of the inmates' assist in habeas corpus proceedings in claims. These figures surely suggest that state courts. judge Merhige also ordered the 'repetitive review' condemned by the state, with 33 men on death row, to justice Powell is not entirely without develop and inwlement a plan to prOVide justification or social benefit in a society lawyers for indigent prisoners. In his which prefers not to kill people in viola­ opinion, Merhige wrote, "The stakes are tion of its fundamental laws. Yet not a simply too high for this court not to word of this does justice Powell grant, at least in part, some relief. In breathe."2 view of the scarcity of competent and According to the American Bar As­ willing counsel to assist indigent death sociation's (ABA) Section on Individual row inmates in the exercise of seeking Rights and Responsibilities, the rate of post-conviction relief, some relief is both reversal has declined slightly since 1983, necessary and warranted." but the death penalty is still rescinded in Virginia was ordered to prOVide more than 55% of the cases. death row prisoners with trained legal justice Powell also omits any men­ assistance during capital post-conviction tion, says Amsterdam, of the fact that proceedings. Currently, death row in­ capital defense lawyers are, in almost mates obtain volunteer lawyers by con­ every case, either unpaid volunteers do­ tacting Marie Deans of the Virginia Coa­ nating hundreds of hours to these cases, U.S. Federal District Court Judge Robert R. lition on jails and Prisons. Deans has Merhige Jr. ordered Virginia to devise a plan or one of the small "corps of specialized which would provide lawyers to death row found it impossible to recruit from a pro bono death penalty defense law­ prisoners. shrinking number of attorneys willing tq yers." This is another "curious" omis­ volunteer for death row cases. sion, he says, given the amicus curiae fices - emotional as well as financial. jack Boger, former assistant legal brief filed in Barefoot by the ABA, which Prosecution of a single appeal on behalf counsel for the capital punishment proj­ stated that expedited appeals in capital of a person on death row frequently in­ ect of the NAACP Legal Defense and cases would "make incalculably more dif­ volves months of exhausting, seemingly Education Fund, Inc., testified in Giarra­ ficult the often thankless task faced by futile effort. One lawyer has described tano that post-conviction counsel must volunteer attorneys who have agreed to the process as a 'self-lacerating invest­ do a complete investigation of the represent penniless, death-sentenced in­ ment of time and energy.' To the attor­ client's background. He or she must also mates in federal habeas proceedings. neys willing to make such investments, obtain the services of mental health and Summary procedures that deprive coun­ again and again, I wish to express my ad­ other experts. locate and interview for­ sel--€ven those armed with a certificate miration and thanks."" mer attorneys in the case, and review of probable cause to appeal--of a mini­ the entire record and the direct appeal mally adequate period in which to brief In the rush to prepare the case, process to determine whether error oc­ and argue a client's case are likely to im­ curred. All previous convictions and rec­ pair the effectiveness of all but the ra­ important issues may be ords in those cases must be investigated rest or most well-financed of overlooked or necessary as well as the initial determination of attorneys."3 investigation may not take place. guilt. justice Thurgood Marshall also dis­ "A complete knowledge of federal puted the kind of criticism justice Powell The problem of the lack of counsel constitutional criminal procedure law had offered ilJ, remarks Marshall deliv­ in post-conviction cases is nationwide, and state substantive criminal law is rudi­ ered at New York University Law and, of states with large death row pop­ mentary for post-conviction counsel. School in 1984. Referring to attorneys ulations, only Florida has made a serious Capital post-conviction proceedings are who volunteer their services to assist effort to address it. In Virginia, a lawsuit permeated by 4th, 5th, 6th, 8th, and persons on death row in collateral chal­ was filed last year in an effort to force 14th Amendment jurisprudence, and lenges to their convictions and sen­ the state to provide some kind of assis­ knowledge of that ever-changing law is a tences, justice Marshall said "[the attor­ tance to these prisoners. Virginia sup­ fundamental necessity. Equally important neys] who currently are shouldering our plies lawyers for indigent inmates only at is federal habeas corpus procedural law. collective burden deserve our gratitude, trial and on appeal to the Virginia Su­ which is complicated by doctrines of law not our scorn and not simply our toler­ preme Court. unique to those proceedings. Exhaustion ance. They are making enormous sacri- Federal district court judge Robert of state remedies, procedural default and R. Merhige jr. issued a recent opinion its exceptions, presumptions of correct­ and order in that lawsuit.5 The order ness of state court findings, and excep­ 'Anthony G. Amsterdam, "The Tilt Against Death tions to such a presumption, and abuse Row Prisoners," Human Rights, Winter 1987, of the writ law add significantly to the Vol.l4, No.1, p.51. 'Remarks delivered by Justice Thurgood Marshall at 'Brief of amicus curiae of the American Bar Asso­ New York University School of Law, April 9, complexity of post-conviction ciation in Barefoot v. Estelle, U.S. No. 82·6080, 1984. proceedings." pp.6-7. sGiarratano v. Murray, 85-0655-R, Dec. 1986. -continued on next page

SUMMER 1987 3

...... _ .....Il'lIIIF.. "'_..,_"". _ UThe death penalty frequently results from nothing more

-continued from previous page Boger himself had, at the time of the numbers on death row continue to trial, represented as many as 80 inmates "Once the execution date is set, mount while' no action is taken. in state or federal post-conviction, and the race is on," said Justice The need is urgent and the situa­ had helped write briefs in 300 other tion desperate, as the volume of federal such cases. These cases may require 30 Thurgood Marshall. habeas petitions increases. More and days of round-the-clock work, he said. more indigent death row prisoners are Meanwhile, the attorney's work is and unmet. In the South, where death exhausting their direct appeals, which shaped by the calendar of events leading row populations are the largest and the means that more often, inadequate de­ up to the execution. As Justice Marshall need the greatest, virtually nothing has fense will result in the execution of put it, once the execution date is set, been done at the state level. those who should have received a lesser the race is on. Efforts have been made in Georgia sentence. The problem is not new. "In practice, one may be in one, to establish funding for a capital defense Sixty-three years ago, Clarence Darrow two, or even three courts at once," said resource center at Georgia State Uni­ said: Boger, "depending on the status of the versity Law School. Yet, even though I will guarantee you that you can litigation. An attorney must simultane­ Georgia is in dire need of lawyers go through the Tombs and you won't ously develop multiple courses of trained in death penalty litigation, no find one out of one thousand that isn't action." funding has been provided. Since the poor. You may go to Sing Sing and you A demanding task for trained law­ state allocates no funds for indigent de­ will not find one out of one thousand yers, handling a death case would be fense at the trial level, leaving it to local who isn't poor. Since the world began, a next to impossible for the death-sen­ communities, it is unlikely that the state procession of the weak and the poor tenced inmate. Many are limited educa­ will establish adequate funding for repre­ and the helpless has been going to our tionally, have psychological problems, sentation at post-conviction. jails and our prisons and to their deaths. and may have low intelligence. Often The North Carolina Death Penalty They have been judged as if they they have emotional difficulties exacer­ Resource Center, housed in the state's were strong and rich and intelligent bated by strained relationships with their Office of the Appellate Defender, cur­ They have been victims, whether punish­ families. Most importantly, in the face of rently employs two attorneys. Through able by death for one crime or one death they are unable to summon the the cooperation of the state supreme hundred and seventy crimes. detachment needed to litigate their own court and the chief justice, private fund­ And, we say, this is no time to case. Even prisoners who possess ing was obtained, and the group hopes soften the human heart. Isn't it?6 greater intelligence or emotional stabil­ to stabilize in the future by receiving ity simply do not have the resources, le­ permanent state funding. gal or financial, to do an adequate job. In March Federal and state judges Representation Jonathan Shapiro, a criminal de­ met with Texas bar officials to try to fense attorney from Alexandria, Virginia, bring some order out of the chaos testified that he had received a desper­ there. Some headway has been made, al­ At Trial ate call from Chan Kendrick, director of though things have proceeded at a snail's the Virginia ACLU. Kendrick begged pace. A newly formed Death Penalty Le­ That's the night the lights went out in Georgia, Shapiro to take the case of Wilbert Ev­ gal Defense Fund, funded privately and That's the night they hung an innocent ans. Evans had an execution date set for with $5,000 from the Texas Civil Liber­ man. four weeks hence, and Kendrick con­ ties Union, has nearly completed a cen­ Don't trust your soul to no backwoods vinced Shapiro that he could enter the sus of who is on death row and by Southern lawyer . ..* case "solely for the purpose of getting a whom they are represented. PreViously, stay of execution." Shapiro agreed to an execution date could be set and In the fearful world of capital pun­ those terms, but found that once he was never brought to the attention of those ishment, individuals live or die simply on the case, he could not simply aban­ who would block it. According to Gara due to factors such as where they live, don Evans. The emotional drain and the laMarche, Director of the Texas Civil the color of their skin, or their eco­ financial burden of the case came as a Liberties Union, "We're looking at a nomic station. Sometimes, however, one shock to him. state where it is debatable whether or person may live and one may die just "I stayed and stayed and finally it not the schools will open. There won't because one attorney made a mistake, was my case," he testified. be any publicly funded professional staff and another did not. "Would you take another death organization set up here. Nonetheless, Justice Thurgood Marshall has case?", he was asked. steps are being taken to turn what used pointed out that the compleXity of capi­ "Never," replied Shapiro. to be a seriously disorganized approach tal litigation and the inexperience of The court reached the conclusion in to representation into a more orderly many lawyers in capital cases may lead Giarratano that the guarantees of the system." to mistakes which spell the difference Constitution can only be met by the Alabama, Mississippi, Louisiana, between life and death: continuous services of attorneys to in­ Oklahoma, and Arizona provide no funds vestigate, research, and present claimed for attorneys handling state and federal 'Clarence Darrow, Attorney for the Damned, Simon violations of fundamental rights. habeas corpus proceedings. While in and Schuster, Inc., New York, NY, 1957, p.1 02. The need for attorneys continues some states proposals have been made *"The Night the Lights Went Out in Geor­ to grow every day, and it goes unheard to organize recruiting or funding efforts, gia," Pix-Russ Music, written by Bobby Russell.

4 SUMMER 1987 than poverty and poor lawyering." The condemned man himself remem­ bers the many points of his procession through the judicial system at which he might have been spared, but was not. He knows, too, from his years of waiting in prison, that most of those who committed Often trial counsel simply are unfa­ crimes like his have evaded the execution miliar with the special rules that apply One Mississippi lawyer worked for that awaits him. So do the prosecutors who in capital cases. ... Though acting in 400 hours and was paid $ I,000, a have pursued him through the court sys­ good faith, they ineVitably make very se­ tem, and the judges who have upheld the rious mistakes. Thus, in cases I have compensation rate of $2.50 per sentence. And so do the defense lawyers, read, counsel have been unaware that hour. exhausted and overwrought for reasons certain death penalty issues are pending that, given tlfeir client's crimes, must be before the appellate courts and that the climbs the appeals ladder. hard for most people to fathom. claims should be preserved; that certain The Mississippi Supreme Court re­ I am one of those law­ findings by a jury might preclude impo­ cently noted that, "the average Missis­ yers, and I know the sense sition ofthe death penalty; or that a sippi criminal defense lawyer has no fa­ of horror that propels those separate sentencing phase will follow a miliarity [with] highly technical death last-minute appeals. The hor­ conviction. The federal reports are filled penalty issues.... In Mississippi, persons ror derives not from death, with stories of counsel who presented accused of capital crimes have been rep­ which comes to us all, but no evidence in mitigation of their resented by attorneys with no previous from death that is inflicted at client's sentences because they did not trial experience of any kind and one was ,d"... random.. .. Up close, that is know what to offer or how to offer it, or even represented by a third-year law what capital punishment is like. And that is had not read the state's sentencing stat­ student."s what makes the state's inexorable, stalking ute. I kid you not, precisely that has The indigent defendant may pay for pursuit of this or that particular person's happened time and time again. 7 the attorney's shortcomings with his or life so chilling. Almost as if to assure that no at­ her life. David Bruck torney ever takes a death penalty case For example, John Young, 18 years attorney in South Carolina twice, thereby gaining expertise, most old at the time the crime took place, states, particularly in the South, are un­ was convicted in the 1975 murder of willing to pay court-appointed counsel three elderly Macon, Georgia women. In the case of Michael Smith, executed adequately. Limits are placed on expend­ Young was appointed an attorney who last summer in Virginia, there was c1earcut itures and compensation which, along was addicted to drugs and who actually constitutional error, but the lawyer didn't with discouraging attorneys from volun­ disappeared for years after the trial. He raise it on appeal. They're not going to ex­ teering to take cases, means that funds also put on no mitigating evidence. He ecute the lawyer. Lawyers don't even get are not available for investigation, pro­ missed details about Young's life such as disbarred for that. Nothing happens! They curement of necessary expert witnesses, the fact that when he was three years go right on practicing. But the client gets or other expenses vital to the effective old he saw his mother killed by her executed for a mistake that the lawyer assistance of a poor person charged with boyfriend. made. To me, that is offensive beyond capital murder. Young's case went through habeas words. There's something unseemly about The funds which states and counties proceedings before the attorney could that, about executing people because their do prOVide are far below the minimum even be found. When he was located, lawyer didn't know that some case was amounts needed. One Mississippi lawyer attorneys were able to document his percolating in the federal system and was worked for 400 hours and was paid physical and emotional inability to repre­ about to be decided by the Supreme $1,000, a compensation rate of $2.50 sent anyone at that time. Yet the federal Court. That was Michael per hour. court refused to consider the evidence, Smith's situation. That's not While quality representation at the saying that despite the fact that the at­ right. It's like shooting ducks post-conviction phase is most vital to torney had gone into hiding and was un­ in a barrel, killing a person if the ultimate fate of the defendant, vigor­ available during earlier appeals, the time the lawyer hasn't preserved ous represen~tion at the trial level to have raised the issue had passed. In a any of the issues. I don't would alleviate the need for a large bizarre twist, the trial lawyer was con­ know what thrill the state or number of appeals down the road. Fun­ victed on drug charges, and found him­ the Attorney General gets damental improvement is needed in the self serving time in the same institution out of that. How defenseless can a person quality of trial preparation and perfor­ as his former client. be? mance, yet, ironically, the quality of rep­ James David Raulerson, convicted in Stephen Bright resentation usually improves as one Florida of killing a police officer, had a Southern Prisoners' Defense Committee, court-appointed lawyer who failed to Atlanta, Georgia 7Remarks of justice Marshall at judicial Conference make any plea at all for his client's life. of United States Court of Appeals for the Second "It's awfully hard to argue for a man's The lawyers who volunteer to Circuit, September 6, 1985. For examples of the life," he said. "I have done it too many type of representation described by justice Mar­ represent convicts on death row per­ times, it never gets easy. 1do not feel as form a second essential function: they shall, see, e.g., Tyler v. Kemp, 755 F.2d 741 (11th though I can persuade you now. '" Cir. 1985); King v. Strickland, 748 F.2d 1462, 1463­ ensure that we do not forget what 64 (11th Cir.1985); Douglas v. Wainwright, 739 F.2d "It's extremely difficult for me now we are doing. 531 (1984); House v. Balkcom, 725 F.2d 608 (11th after having argued for two or three Cir. 1984); Young v. Zant, 677, F.2d 792, 798 (11th -continued on next page Justice Thurgood Marshall Cir. 1982); Goodwin v. Balkcom, 684 F.2d 794 (11th ------Cir. 1982). "Irving v. State, 441 So. 2d, 846 (Miss. 1983).

SUMMER 1987 5

"" -continued from previous page days to feel that I'm very effective in torneys succeeded in having Goodwin's mitigating evidence and failed to present front of you. ... You heard all the testi­ death sentence set aside [684 F.2d 794 any evidence 'at the sentencing hearing mony. I'll say nothing further on behalf (1982)] and a new trial granted. Good­ despite the fact that petitioner was an of my client other than just weigh and win pled guilty and is serving a life sen­ adolescent with psychological problems consider your decision." tence in the Georgia prison system. and apparent diminished mental capabili- The attorney never told the jury Goodwin is not an isolated exam­ ties.. ..."10 • that Raulerson was married and had a ple. Two other Georgia death row in­ The lawyer never asked for a psy­ child; that his stepfather had died in his mates. Charlie Young and George Dun­ chological evaluation of his client, spent arms after being shot several years ear­ gee. were referred to as "niggers" by only six hours total with him, and re­ lier; or that he had maintained regular their defense counsel in closing jected the assistance of a lawyer who employment for a number of years be­ arguments. had known Burger from his home town fore the death of his stepfather. David Bruck. a defense attorney on the basis that the lawyer was black. In a classic example of how the from South Carolina. pointed out that The lawyer had offered to come to death penalty is arbitrarily applied. Judge ''These spectacles have a cost for our le­ Georgia to assist at his own expense. Joseph Hatchett of the U.S. Court of gal system, and that is the self-respect of "In my view," said Justice Blackmun. Appeals for the Eleventh Circuit de­ our legal institutions. We would not dis­ "if more information about this adoles­ scribed the case of John Eldon Smith in pose of property in any legal proceeding cent's psychological problems, troubled Georgia: the way those people's lives were dis­ childhood, and unfortunate family history [Smith's codefendant] Machetti, posed of." had been available, there is reasonable the mastermind of this murder, has had Justice Marshall. dissenting in the probability that ... 'the sentencer- in­ her conviction overturned, has had a denial of certiorari in Messer v. Kemp. cluding an appellate court, to the extent new trial and has received a life sen­ 106 S.Ct. 864 (1986), wrote, it independently reweighs the evi­ tence. This court overturned her first Counsel did not inform the jury, dence--would have concluded that the conviction because in the county where during summation or at any other time, balance of aggravating and mitigating cir-: the trial was held, women were uncon­ that petitioner had no prior criminal his­ cumstances did not warrant death. stitutionally under-represented in the tory, had been steadily employed, had Strickland v. Washington, 466. U.S., at jury pool . .. .Her lawyers timely raised an honorable military record, had been 695.... 11 this constitutional objection. They won; a regular churchgoer, and had coop­ While some capital cases are well­ she lives. erated with the police. Counsel did not defended by appointed counsel. as long John Eldon Smith was tried in the give the jury a single reason why it as many trial lawyers remain ill-trained, same county, by a jury drawn from the should spare petitioner's life. ... underpaid and inadequately monitored. same unconstitutionally composed jury The net result was that the peti­ the poor will continue the march to pool, but because his lawyers did not tioner was without an advocate at the their deaths without ever having been timely raise the unconstitutionality of the sentencing phase. given a fair chance in our legal jury pool, he faces death by electrocution. A former law clerk to Supreme system. His lawyers waived the jury issue. Smith v. Court Justice John Paul Stevens recently Kemp. 715 F.2d 1459, 1476 (1983). wrote that "the imposition of the death FLORIDA'S CCR Young, Raulerson. and Smith have penalty frequently results from nothing been executed. more than poverty and poor lawyering." Trial attorneys for Terry Goodwin. In his experience he found, "Again and another Georgia case. stressed to the again. in cases that I reviewed. potential More Staff jury that they were representing Good­ mitigating evidence was readily avail­ win only because they had to. They told able--medical experts who could testify the jury. "W~I, if you decide to impose to mental retardation or other evidence Needed for the death penalty today and you decide of diminished capacity; relatives who to sentence him to the electric chair. could help explain how and when this in­ "Emergency historically speaking. you have got a very dividual had been brutalized; fellow vet­ likely candidate. erans who could testify about combat Surgery" "He is a little old nigger boy, he valor. or about the haunting. warping ef­ would not weigh 150 pounds. He had fects of the battles they had experienced got two court-appointed attorneys ap­ together. Again and again. defense coun­ Two years ago Florida created the pointed by this court to represent him sel made little or no effort to reach such Capital Collateral Representative (CCR). to do the very best we can do for him. witnesses."9 a law office mandated to represent indi­ He is poor. He is broke. He is probably In June of this year the Supreme gent defendants in state and federal mentally retarded. I dare say he has not Court denied relief to a Georgia death­ post-conviction proceedings which chal­ got an I.Q. of over 70. He is unedu­ sentenced inmate named Christopher lenge the validity of either the judgment cated. Probably just unwanted. This is Burger. In his dissent. Justice Blackmun of guilt or the death sentence. 12 the kind of people that we have histori­ said. "His counsel failed to investigate cally put to death in Georgia." IOBurger v. Kemp, 55 L.W. 5131 (6/26/87). The jury sentenced Goodwin to 'Sloan, "Death Row Clerk," The New Republic, "/d. death. After years of appeals other at- February 16, 1987. 12See, Elvin, "Florida Death Penalty Appeals Office

6 SUMMER 1987 The CCR office began operating in the fall of 1986, as the population of death row reached 239, the largest in the United States, and as the pool of volunteer lawyers available to provide post-conviction death penalty represen­ tation became completely exhausted. In a state where someone is sentenced to death nearly every week, the backlog resulting from the inability to proceed with executions motivated the Legisla­ ture to act. Volunteer groups were unable to handle the tremendous caseload and re­ cruitment of volunteer attorneys became an impossible task. None of the large law firms which had agreed to take cases would get involved ahead of the issuance of a death warrant. When the Florida Supreme Court indicated that no one would be executed without counsel, wheels were set in motion for the crea­ tion of CCR. James Rinaman, past presi­ dent of the Florida Bar Association, said that the CCR bill succeeded in part be­ cause of the joint support of the Attor­ ney General, the Governor, the judici­ ary, and the bar association, but that most decisive in its passage was support from 18 of the largest law firms in the state. These same firms had been heavily lobbied earlier to provide legal repre­ sentation and consequently understood the tremendous need for skilled counsel. Last year, when former Governor commented that "CCR needs to have Graham began signing four warrants a more lead time to work up the neces­ 2,284 attorney hours and $18,467 out­ month, resources at CCR were strained sary papers and to do the necessary of-pocket expenses on an "average" at the seams. Only 30 days were al­ preparation. Even 60 days would still be death penalty case on appeal. lowed to litigate death penalty claims emergency surgery."13 CCR's budget was determined after the warrant was signed. Under this Desperate to convince the Legisla­ largely on a "best-guess" basis. The ABA system, at anyone time there are large ture of the need for more money and study has now shown that the guess was numbers of people who are eligible for staff, last fall Spalding asked the Bar In­ inadequate.. CCR has requested an in­ death warrants, but the Governor gives formation Program of the American Bar crease from $840,000 to $2.9 million. no warning as..to which of those he will Association's Standing Committee on "I think everybody realizes CCR sign the warrants on. With only 30 days Legal Aid and Indigent Defendants to needs more help," says Jim Smith, for­ to appear before four or five courts, and sponsor a study of attorney hours re­ mer Attorney General and a prime with nine attorneys to do that, working quired in post-conviction capital cases. mover in the passage of the bill to cre­ at CCR burned out four lawyers within Spalding hoped to be able to establish a ate CCR, "but they are just not a popu­ the first year. Director Larry Helm baseline comparison to show CCR's lar program in the Legislature." Spalding says, "Unless the executive de­ need for increased funding. The study, Additional positions have recently velops some predictable method of sign­ conducted by the Spangenburg Group of been funded by the Legislature, and ing death warrants, and until CCR is Newton Highlands, Massachusetts, was CCR hopes to increase its staff of expe­ properly funded, CCR cannot meet the to assist legislators in providing a reliable rienced attorneys. 30-day rule and ensure meaningful access caseload/workload formula to serve as a -continued on next page to the courts." foundation for CCR's budget request for Judge John C. Godbold of the Elev­ Fiscal Year 1988 and beyond. '4 It re­ flce of the Capital Collateral Representative," and enth Circuit Court of Appeals said vealed that 41 firms in Florida averaged a separate document on the survey of private at­ that working within the 30-day limit torneys, entitled "Time and Expense Analysis in Post-Conviction Death Penalty Cases" are available amounted to "emergency surgery," and "Source, NPP interview with Judge John C. God­ without charge from John Arango, project coordi­ bold on February 19, 1987. nator, Bar Information Program, Box 338, Algo­ Opens," NPP JOURNAL, No.7, Spring 1986, p.1. l4"A CaseloadlWorkload Formula for Florida's Of- dones, NM (505) 867-3660.

SUMMER 1987 7 -continued from previous page For more information about CCR, sons in December, 1979 to over three have volunteered. In addition, a recruit­ contact Larry Helm Spalding, Capital times that number: 1,911 in August, ment effort Has been launched in the Collateral Representative, 225 West Jef­ 1987. large urban centers of New York City, ferson Street, Tallahassee, FL 32301, Part of the ABA Post-conviction Boston, Philadelphia, Chicago and Wash­ 904/487-4376. IllI Project's mission is to appeal to state ington, D.C. to enlist commitments from legislatures, courts, Congress, bar associ­ large firms. The..next stage of recruit­ POST-CONVICTION ations and the general public through an ment will be in some of the death pen­ education campaign to prOVide adequate alty states such as Texas and Arizona. public funding for representation of indi­ The consultants to the Project are gent death row inmates. By using the Esther Lardent and Russell Canan. Lar­ ABA Funds Florida CCR example as a successful dent has organized pro bono litigation model, along with similar programs in systems throughout the country, and Death Penalty California and North Carolina, the Proj­ Canan is an experienced death penalty ect can build on what many think is the litigator. Debbie Fins of the Legal De­ Project only sensible long-range solution to the fense Fund also served as consultant dur­ crisis on death row: state-funded appel­ ing the first year. The group has devel­ julia Cade late offices/resource centers. oped the recruitment effort, drafted Until the long-range objective can pleadings and a handbook, and is formu­ The nationwide problem of lack of be met, an emergency placement system lating a mentor system in every state to representation for indigent persons on has been set up as another part of the assist the volunteer attorneys with their death row has become so critical that ABA Post-conviction Project's mission. cases. the American Bar Association (ABA) has Experienced post-conviction death pen­ Interested attorneys should contact become actively involved. The ABA's alty litigators have been hired as consul­ Esther Lardent, ABA Post-conviction . Post-conviction Death Penalty Represen­ tants for the private bar pro bono attor­ Project, 1800 M Street, N.W., Washing-. tation Project has been in the proposal/ neys who take on the "falling between ton, D.C. 20036, (202) 331-2279; Russell study phase for several years, but was the cracks" emergency cases in the in­ Canan, 51 IE Street, N.W., Washington, formally inaugurated in August 1986. terim. As of this writing, 70 attorneys D.C. 20001 (202) 393-7676. IllI "After years of foot-dragging," said Russell F. Canan, consultant to the proj­ ect, "the ABA has finally decided to take an aggressive role in this crisis." The Board of Governors of the u.s. v. Michigan: ABA has granted the Project $88,000 for fiscal year 1987-88. An Update From the Battlefield At no time has the ABA taken a position either in favor of or against the Elizabeth Alexander death penalty. However, the ABA has been on record for a number of years as In the first issue Michigan prison system. After Justice 1 taking a strong stand supporting the ofthejOURNAL , we Department lawyers filed a new tooth­ provision of counsel for post-conviction reported on the ef­ less consent decree at Reynolds' behest, proceedings. The paper resolutions by forts of William Brad­ federal district judge Richard A. Enslen the ABA House of Delegates in 1979 ford Reynolds to rejected it as unenforceable and reqUired and 1982 on this issue have produced no transform the Special the Department of Justice and the State concrete respQnses. The new Post-con­ Litigation Section of to file a new consent decree that in­ viction Project has received funding, has the Civil Rights Divi­ cluded significantly stronger provisions a small staff and an initial crop of volun­ sion into another bat­ for enforcement, including compliance teer attorneys. talion in the counterrevolutionary army hearings and a role in monitoring for the For years the full-time death pen­ against civil rights. One of the major National Prison Project. alty bar has consisted of approximately battlefields in Reynolds' war has been Since the consent decree was en­ one dozen attorneys on the staffs of or­ the State of Michigan. In 1984, Reynolds tered, in some areas the decree has had ganizations such as the Legal Defense personally vetoed a settlement negoti­ a significant impact in curing constitu­ Fund (LDF), Southern Prisoners' De­ ated by his own lawyers because it im­ tional violations. In other areas, major fense Committee (SPDC), Team De­ posed too many obligations on the problems remain. One constant, how­ fense, ACLU, Southern Poverty Law ever, has been the failure of the Depart­ Center and specialized appellate offices Elizabeth Alexander is a senior staff attor­ ment of Justice to advocate on behalf of in public defender programs in a handful ney with the National Prison Project the constitutional rights of the Michigan of states. However, the national death prisoners. row census has climbed from 593 per- Most recently, at the urging of the 'See Alexander, "Justice Department Retreats: The Prison Project, and over the objections julia Cade is a paralegal at the Michigan Case," NPP JOURNAL, No. I, Fall 1984, of the Department of Justice, the judge Prison Project p.L held a contempt hearing on the issue of

8 SUMMER 1987 overcrowding. The judge learned that, mental health plan-along with a motion among other conditions caused by the asking the court to relieve the State of overcrowding, new prisoners were its obligation to implement the plan. The being housed on the bulkheads in the Department of Justice did not oppose Reception Area. Aside from being a seri­ the State's motion. Once again, the Na­ ous fire hazard, the Reception Center tional Prison Project as friend of the Few Diversion was home to an army of pigeons that court had to battle alone for the Consti­ befouled the beds and food of the tution. Luckily, the Prison Project pre­ Progr~ms prisoners. vailed and Judge Enslen held the State of Are Based on the testimony at the hear­ Michigan in contempt of court for failing ing on May 22, 1987, the judge found to submit a mental health plan to the Offered Female the State in contempt, temporarily Court that the State was prepared to stopped the influx of prisoners into the implement. 3 system, and ordered the State to end all A final example of Justice's ap­ Offenc(ers overcrowding in the system by Novem­ proach to enforcing the consent decree Russ Immarigeon ber I, 1987, or pay fines of $10,000 per involves the fire safety provisions. Pri­ day. The Department of Justice refused marily because of bureaucratic delays in "Planners concerned with reducing to ask for sanctions against the State. planning, numerous provisions for fire the size of the female prison popula­ Another major victory for the Con­ safety improvements have fallen seriously tion," a report from the New York stitution occurred with the abolition of behind schedule. In July of 1986, the State Division of Criminal Justice re­ the Michigan Intensive Program Center state officials met with Justice and its fire cently observed, "must look for solu­ (MIPC). This "super-maximum" prison, safety expert. The fire safety expert rec­ tions at the front end of the criminal jus­ originally set up as a facility for behavior ommended a set of revised dates for tice system, not at the back end. That is, modification, locked troublesome pris­ completion of the projects, contingent programs and policies that are geared oners for prolonged periods in cells in on agreement by the State to provide toward keeping women out of institu­ which the lights were controlled from closer monitoring on the projects and to tions will have a greater impact on re­ outside the cell by the staff. A catwalk complete all the work by the end of ducing the size of this population than allowed staff observation into an in­ 1987. will efforts directed at lowering their mate's cell at any time without the in­ In October of 1986, the State filed rate of return." I mate's knowledge. Indeed, the "psychol­ its motion for an extension of time. Jus­ ogist" assigned to MIPC did part of his tice urged the court to approve the re­ "counseling" from the catwalk. The frus­ quest, even though the State's request The second part of the Women trated and isolated inmates responded did not include the new monitoring re­ in Prison two-part article appears by throwing human waste and setting quirements recommended by Justice's in this issue. This two-part article fires. 2 fire safety expert. Subsequently, on the raises serious doubts about the pro­ Although Department ofJustice ex­ eve of the hearing, the State proposed priety and efficacy of imprisoning perts condemned the prison, the con­ even later dates for completion of the women offenders who are not a sent decree failed to address MIPC's projects. Even though many of the dates public safety risk. Last issue Russ continuing existence as a super-maxi­ extended into 1988, the Department of Immarigeon described the state of mum facility. The National Prison Proj­ Justice did not ask that the State be held women's imprisonment in the ect, in its limited role as amicus curiae in contempt. Ultimately, although it United States and offered some (friend of the court), however, contin­ granted the extended schedules, the suggestions about how this situa­ ued to insist on MIPC's abolition. Ulti­ court found the defendants in noncom­ tion has developed. In part two, mately, the Michigan Department of pliance with the fire safety requirements printed in this issue, he describes Corrections agreed to change MIPC into and reqUired the State to designate several programs throughout the a protective custody facility in order to someone from the Governor's office to country to divert or remove satisfy the court's orders. Throughout monitor future fire safety compliance. In women from incarceration and dis­ the litigation, despite the strongly the event of future noncompliance, the cusses concerns for testing the suc­ worded reports of its own experts, the court's order specifically referred to the cess of such diversion programs. Department ofJustice never opposed official's responsibility to demonstrate the continued operation of MIPC. why the State should not be held in con­ An even more egregious example tempt of court. Unfortunately, very few programs ofJustice's blindness to basic constitu­ In the course of the litigation, Judge focus specifically on displacing women tional requirements was its position re­ Enslen had repeatedly reminded the De­ offenders from terms of imprisonment. garding the mental health care provisions partment ofJustice that its role is to en­ In the paSt, female offender-oriented of the consent decree. Under the con­ force the consent decree, rather than to programs have tended toward providing sent decree and its State Plan for Com­ enforce the Department ofJustice's lim­ increased (and necessary) services for pliance, the State of Michigan was to ited notions of what the Constitution women and their children while incarcer­ present a plan for adequate mental requires. In short, Mr. Reynolds' per­ ated. Only recently have programs health care by April 1985. The Depart­ sonal assurance to the judge that the started to specifically keep women from ment of Justice agreed to an extension Department ofJustice would vigorously -continued on next page of that deadline to October 1985. enforce the consent decree has become On the date that the mental health just one more broken promise from the Russ Immarigeon is the Associate Editor of plan was due, the State filed an adequate leading contra in the civil rights war. III Criminal Justice Abstracts, and a free­ lance writer specializing in criminal justice 2Such problems are typical of those engendered by 3Subsequently the State submitted another plan to issues. such facilities. See Bronstein. "Super-Max Prisons the court. After modifications. in October of 1986 Have Potential for Unnecessary Pain and Suffer­ the court accepted the plan and ruled that the I New York State Division of Criminal Justice Ser­ ing," NPP JOURNAL, No.4. Summer 1985, p.1. State had purged its contempt. vices. Female Offenders in New York State. p. 62.

SUMMER 1987 9 A high percentage of imprisoned women have being physically or sexually abused. "Women are extremely self-blaming," a history ofbeing physically and/or sexually abused. says Carol Dodgson. a Women's Self­ Help Center social worker. "They are -continued from previous page encounters as such until pressed to do confused about how they put up with being imprisoned in the first place, or SO.3 abuse for so long." The Justice Outreach reduce their length of stay after being Programs designed to address the Program works with these women so sentenced to jailor prison. circumstances and needs of abused and that they can talk specifically and articu­ These emerging programs are long non-abused women offenders, and to di­ lately about their abuse in court. "It is overdue, and are especially timely. vert or remove these women from im­ important," Dodgson adds, "to explain Several months ago, the U.S. Bu­ prisonment include the Justice Outreach the context of the killing to the jury." reau of Justice Statistics reported that Program of the Women's Self-Help Cen­ The Justice Outreach Program acts the population of women's prisons has ter in St. Louis, Community Services for as an intermediary between women of­ been growing at a greater rate than the Women of the Social Justice for Women fenders and judges, jail staff, attorneys population of men's prisons every year program in Boston, and the Elizabeth and probation officers. In addition to lo­ since 1981. Since crime statistics for this Fry Center in San Francisco. cating community services and providing period suggest that female criminality counseling for these women, the pro­ has increased only with regard to prop­ Women's Self.Help Center's Justice gram tries to educate criminal justice erty, non-violent offenses, this surge in Outreach Program professionals about the realities of women's imprisonment results from The Women's Self-Help Center women who have suffered from physical harsher sentencing for a class of of­ was established in 1976 to reduce physi­ and sexual abuse. fenders who would be less likely to re­ cal and sexual abuse against women in ceive prison terms if they were male? St. Louis by providing a crisis hotline, Community Services for Women Moreover, evidence increasingly client services, and community education In January 1987, Social Justice for suggests that many imprisoned women and training. Gradually, the Center's Women, a private, non-profit agency of­ become "criminal" as a result of a his­ professional and volunteer staff became fering comprehensive services to female tory of physical or sexual abuse. Self-re­ increasingly involved with battered offenders, established Community Ser­ port data gathered by Brandeis Univer­ women who killed their partners in self vices for Women, an alternative sentenc­ sity researcher Mary E. Gilfus from 96 defense. Through work with these ing program to divert women from women incarcerated at a state women's women, the Center soon realized that a MCI-Framingham, the women's prison in prison in Massachusetts reveals some sig­ high percentage of imprisoned women Massachusetts. nificant relationships between abuse and have a history of being physically and/or According to Sister Jeannette Nor-· "criminality." sexually abused. mandin, who served for six years as Fram­ "The link between early exposure Research conducted by the Cen­ ingham's chaplain, the program recom­ to violence and entry into criminal pat­ ter's staff confirmed their worst suspi­ mends "punitive yet constructive terns," Gilfus argues, "lies in the eco­ cions. "Thinking back over the first 17 sanctions for women offenders who are nomic necessity which is created by the years of their lives," the Center's study on the verge of going to Framingham coping strategies chosen in responding found, "I 1.2% [of those women re­ for the first time who are serious about to physical and sexual violence." These sponding to the Center's initial inquiry] changing the course of their life." strategies include substance abuse, run­ reported having been sexually abused, ning away from home, and early 12% reported physical battering, and pregnancy. 16% reported having been subjected to "It's not somebody telling her Gilfus recently told the Third Na­ both physical and sexual abuse as what she needs." tional Family Violence Research Confer­ children. ence held at the University of New "Reflecting on their experiences as Sr. Normandin, who found at Fram­ Hampshire that "as children [many of adults," the study also found, "25.6% [of ingham that "prison doesn't work as a the women she interviewed] were ex­ these imprisoned women] reported deterrent or as rehabilitation," attends posed to such an overload of traumatiz­ being victims of physical battering, 4.8% Boston Municipal Court sessions three ing events, including parental death and rape, and 23.2% reported being victims times a week to identify cases where suicide as well as life-threatening physical of physical abuse and rape.,,4 Further­ women offenders seem prison-bound. abuse, neglect and rape, that the day to more, a study by the Missouri Depart­ Referrals also come from prosecution day violence in their lives was often ment of Human Services of women pris­ and defense attorneys, probation offi­ over-shadowed and down-played. They oners at the Renz Correctional Center cers, and even some judges. After identi­ were struggling so hard simply to sur­ found that 80% of them were incarcer­ fyingpotential clients, Sr. Normandin vive one trauma after another that they ated as a result of their affiliation with speaks with the client's prosecuting and could not afford to stop to feel the pain abusive males. defense attorneys and the assigned pro­ or register the impact of what seemed The Justice Outreach Program goes bation officer. She then asks the court like 'normal' violence. It seemed as if into city and county jails to find women for a continuance (in Massachusetts, sen­ they were accustomed to such a high arrestees or offenders with a history of tencing occurs immediately following level of violence (much like background conviction). noise) that they did not think it unusual 'Mary E. Gilfus, "Life Histories of Women in A sentencing plan is developed with or abusive unless it became life-threaten­ Prison." Boston, MA: Women's Health and Learn­ the offender. "It's not somebody telling ing, and therefore did not define violent ing Center, 1987. pp. 4-5. her what she needs," says Sr. Norman­ .'Women's Self-Help Center, "The Justice Out­ din. Many of the women accepted as 2See, for example, Peter Applebome, "Women in reach Program: A Proposal." St. Louis, MO: Wom­ clients have problems associated with al­ U.S. Prisons: Fast-Rising Population," New York en's Self-Help Center, 1986. Further information Times, June 16, 1987; and Nicholas C. McBride, about this program can be obtained from Louise cohol or drug abuse, mental illness or "U.S. Putting More Women in Prison, Victimizing Bauschard, Executive Director, Women's Self-Help mental retardation. Sentencing plans Many Children," Christian Science Monitor, June 16, Center, Inc., 2838 Olive St.• St. Louis, MO 631031 consist of community service or restitu­ 1987. (314) 531-9100. tion matched with the offender's specific

I 0 SUMMER 1987

I " ' : skills and talents and special supportive Do they act as true alternatives to services designed to meet their needs. imprisonment? Prostitutes, for example, receive shelter from pimps and supportive services to­ ward leaving the profession. Community implementation of these programs? process, from pre-trial detention to Services for Women monitors the sen­ None of these programs is being for­ post-release, and get programmatically tencing plans, and reports to the court, mally evaluated, but the history of alter­ lost along the way. probation and defense and prosecution natives to imprisonment programs sug­ Private sector agencies, Austin ar­ attorneys on each plan's progress.s gests a number of cautions. gues, are in a better position to take a The Social Justice for Women's al­ system-wide perspective, and to bring The Elizabeth Fry Center ternative sentencing program, for exam­ various service providers together, often The Elizabeth Fry Center was es­ ple, targets women who have not been for the first time, for the benefit of tablished in 1986 to provide shelter and imprisoned before, along with women women offenders. Social Justice for meals, child care, job workshops, money who seem to require and desire direct Women, of whicln Community Services management training, parenting training, social services. Given the program's for Women is a Significant part, provides employment counseling, substance abuse small staff and caseload, however, how health, pregnancy, parenting, substance counseling, personal counseling and rec­ many of these women would actually abuse counseling and other services for reational and religious programs for low­ have been imprisoned? Local studies women offenders in a variety of institu­ risk women prisoners and their children have not been done to identify the char­ tional and non-institutional settings. In under age six. acteristics of women offenders in the this way, Social Justice for Women ad­ The Center's program is authorized Boston Municipal Court receiving terms dresses women's needs, not state agency by legislation which permits women pris­ of imprisonment. Moreover, in generally priorities. "We're not running prisons," oners to serve part of their sentence providing services to women in need, Austin observes, "we are on the outside with their children in a residential set­ the program may be stretching its lim­ conscious of what's going on." ting. "The Elizabeth Fry Center," ac­ ited resources to cover too many func­ Finally, M. Kay Harris, an associate cording to The Rev. Deborah Haffner, tions, resulting, perhaps, in intervention professor of criminal justice at Temple the Center's director, "is founded on with women who would not ordinarily University, has written that "it is doubt­ the conviction that it is with the com­ be imprisoned. ful that reformers can make any real munity, not with the distorted culture of Programs focusing exclusively on progress toward reduction of imprison­ prison, that the offender must learn to women offenders are not likely to divert ment if their efforts are shaped and lim­ cope." the full number of women offenders ited to satisfy the strident demands of The Center, a Project of the San who could potentially be diverted from the present harsh political climate." Pro­ Francisco Council of Churches, is located imprisonment. The Elizabeth Fry Center, grams for women offenders may be in a large Victorian house near Golden for instance, only serves 10 women and strongest in this regard. Like many of Gate Park and the University of Califor­ their children. Although several similar the vibrant parent-child programs run by nia Medical Center, and has enough bed­ centers exist in California, women en­ Prison MATCH and other organizations, space for 10 women and their children. tering the state's penal system outnum­ the alternative to imprisonment efforts Ten staff members operate the program ber women being released to these pro­ in this article each stress the importance on an around-the-clock basis. 6 grams. Moreover, such programs are of identifying and addressing the unique unlikely to receive enough funding to social and economic needs of female of­ Conclusion support the quantity and range of staff fenders who are imprisoned, not the po­ The programs identified in this arti­ expertise required for such efforts litical and punitive needs of state agen­ cle are not the entire universe of pro­ touching larger numbers of women. cies. Unlike institution-based programs, gram efforts designed to divert women however, they directly challenge the ap­ from incarceration. Other programs ex­ The criminal justice system is propriateness of women's imprisonment. ist, and several programs are now in the Harris argues further that "signifi­ process of starting. Clearly, however, basically a series ofagencies with cant movement away from the practice too few programs challenge the appro­ uncoordinated services. of imprisonment cannot be anticipated as priateness of women's imprisonment. long as alternatives (to imprisonment) More work is required. Thus, for the displacement of as are developed from a dominantly prag­ As with any programs promising to many women as possible from imprison­ matic point of view without careful con­ serve as an alteJ;native to imprisonment, ment, traditional criminal justice agen­ sideration of the underlying values and these face several important tests before cies, such as pretrial service, probation, goals.'>? Emerging women's programs their displacement function can be de­ defense, and parole agencies, will have largely go beyond incarcerative goals and fined as successful. First, do they act as to specifically apply their efforts toward values, and stress concrete and specific true alternatives to imprisonment? Sec­ women offenders. However, few agen­ needs. Observing that many of the ond, do they divert enough women of­ cies are likely to initiate such an empha­ women in her study were drug-addicted, fenders to reduce overcrowding in many sis without the advocacy and input of re­ Gilfus argues that "a sound social policy women's institutions without prompting formers outside the system. should address addiction. Prisons are not an expansion of the number of available Lila Austin, a founder and adminis­ and will probably never be optimal sites cells? Lastly, what values accompany the trator of Social Justice for Women, for the treatment of addictions." II makes several cogent points in this re­ SFuther information about this program can be ob­ gard. The criminal justice system, she tained from Sister Jeanette Normandin, Commu­ says, is basically a series of agencies with nity Services for Women, 20 West St., Boston, uncoordinated services. Women are par­ 7M. Kay Harris, "Strategies, Values, and the Emerg­ MA 02111/(617) 482-0747. ing Generation of Alternatives to Incarceration." ·Further information about this program can be ticularly affected by such disorganization. New York University Review of Low & Social Change, obtained from The Rev. Deborah Haffner, Direc­ Within a relatively short period of time 12(1): 169, 1983-1984. See also, M. Kay Harris, tor, The Elizabeth Fry Center, 12S 1 Second Ave­ (e.g., six months), women offenders The Goals of Community Sanctions. Washington, nue, San Francisco, CA 941 221(41 S) 681-0430. go rapidly through the criminal justice D.C.: U.S. National Institute of Corrections, 1986.

SUMMER 1987 II SMOKING IN PRISON ness, and their biological plausibility allow a judgement that involuntary smoking can cause lung cancer in non­ Weighing Privilege to Smoke smokers. Although the number of lung cancers due to involuntary smoking is Against Rights of Non-Smokers smaller than that due to active smoking, it still represents a number sufficiently large to generate substantial public health concern} The fa~ that other carcinogens and pollution sources have been prohibited or are strictly regulated by federal, state and local governments supports the proposition that the general public has a right to be protected from such agents. According to a 1985 Gallup survey, con­ ducted on behalf of the American Lung Association, 75% of all adults polled be­ lieve that smokers should refrain from smoking in the presence of non-smokers; 79% of those polled were of the opin­ L Felipe Restrepo ion that smoking should be restricted to designated areas in the work place. An­ Anybody who has been subjected regulated in common carriers, no-smok­ other poll conducted by Liberman Asso­ to tobacco smoke in confined quarters ing areas in theaters, hospitals and public ciates on behalf of the American Lung should not be surprised at the new­ buildings, to cite a few. Many ordinary, Association found that 94% of those found social awareness that tobacco and less offensive activities, such as con­ polled were of the opinion that public smoke is, at least, obnoxious, offensive suming liquor, spitting, changing one's places should have designated smoking and irritating, and at worst--deadly. clothes and listening to loud music are areas; 85% of those polled felt that Constant exposure to environment currently regulated or prohibited with­ smoking should be restricted to desig­ smoke in the restricted confines of a out violating anyone's privacy rights. nated areas in the work place. prison or jail is a problem that must be Government in this country has tradi­ State and local legislators have re­ addressed. The Surgeon General of the tionally regulated activities that in and of sponded to public demand by passing United States' annual smoking report themselves might not be offensive or laws regulating smoking in public places. confirmed the obvious, that the ill ef­ hazardous but when performed in the Today, according to the Office of Smok­ fects of tobacco smoke are not confined presence of others prove to be both ob­ ing and Health's "National Status Re­ to the smoker. "[It] is now clear that noxious and hazardous. Spitting, for ex­ port," 42 states and the District of disease risk due to inhalation of tobacco ample, was declared illegal due to the Columbia have passed some form of leg­ smoke is not solely limited to the indi­ spread of tuberculosis at the turn of the islation governing the "privilege" to vidual who is smoking, but can also ex­ century; while those of majority are free smoke. Alaska, Florida, Minnesota, Mon­ tend to those individuals who inhale to­ to drink, they are not free to drive and tana, Nebraska, Utah, and Washington bacco smoke in room air."1 endanger the lives of others. have enacted comprehensive legislation While there is no constitutional In further support of his position prohibiting smoking in public places. Sev­ right to be free from tobacco smoke, that there is no per se "right" to smoke enteen other states have enacted legisla­ there is likewise, no legal right to smoke Banzhaf argues that common carriers tion restricting smoking to designated in the presence of non-smokers. John F. and public places are under no obligation areas in offices and other work places. Banzhaf, the Executive Director of Ac­ to accommodate analogous activities Two recent federal courts have tion on Smoking and Health (ASH) sug­ such as chewing and spitting tobacco and recognized employees who are particu­ gests that the rights of non-smokers and burning incense. Furthermore, smoking larly sensitive to tobacco smoke as hand­ smokers can be readily accommodated has long been regulated with the objec­ icapped employees for purposes of the by restricting smoking to designated tives of reducing fire risks and damage Federal Vocational and Rehabilitation areas. Such an approach would be partic­ to property and manufactured goods. Act. 29 U.S.c. 70 I et seq. Although the ularly suitable>-in a prison situation where One can only hope that protecting the plaintiffs were not afforded relief in the privilege to smoke must be weighed health of non-smokers is as worthy a these particular cases the courts were against the rights of non-smokers to be goal. willing to recognize the severe implica­ free of tobacco smoke. Because individ­ The Surgeon General's most recent tions of exposure to tobacco smoke in ual inmates are not free to move about report,2, only confirms numerous earlier the work placeS. In Parodi the case was the prison at their pleasure the only way studies which established a clear link be­ remanded to determine whether suitable to ensure that both interests can be ac­ tween exposure to tobacco smoke and employment in a safe environment was 3 commodated would be to establish various types of iIInesses • available. The Vickers court refused relief smoking and non-smoking sections in The relative abundance of data arguing that there was no duty on the common areas. reviewed in this Report, [The Surgeon part of the employer to prOVide an envi­ The privilege to smoke is currently General's 1986 Report], their cohesive- ronment wholly free of tobacco smoke. The court also noted that the plaintiff Felipe Restrepo is a former law clerk at 2The Health Consequences of Involuntary Smoking. could help himself by simply closing his the Prison Project who now works as a 1986. U.S. Dept. of Health and Human Services. public defender in Philadelphia. 'See. for example, "Lung Cancer and Passive 'See footnote 2. Smoking," Int j. Cancer 27, (1-4) 1981; "Non­ 'Parodi v. Merit Systems Protection Board, 690 F.2d smokers Rights," The AMAJournal. May 19, 1978. 731 (9th Cir. 1982); Vickers v. Veterans Administra­ 'Washington Post. Dec. 17. 1986. p.AI. Vol. 239. # 1O. tion. 549 F.Supp. 85 ryv.D. Wash. 1982).

12 SUMMER 1987 office door and that the employer had smoking/non-smoking rule, is attempting For the Record: made reasonable efforts to accommo­ to reduce potential hazards to individual date the employee's handicap. Although health and safety, and to provide a these cases were decided prior to the more comfortable living and working en­ 1986 Surgeon General's Report, the vironment for staff and inmates. By pro­ conclusions of the Report are consistent viding designated areas for smokers, as with the court's findings. However, it well as other areas where individuals are • On May I, 1987, the National should be noted that the Surgeon Gen­ not exposed to smoke the Bureau is Prison Project announced that its AIDS eral emphasized that the mere separa­ eliminating a potential source of discord Education Project had completed and tion of smokers and non-smokers within among inmates. II published a R'esource Bibliography on the same air space is not enough to Those even vaguely familiar with AIDS Among Prisoners. The bibliography eliminate the adverse effects of passive prison conditions are aware of acute lists the AIDS policies of various state smoking. The Report concluded: ventilation problems in many corrections and federal correctional agencies, educa­ I. Involuntary smoking is a cause of facilities. Prison litigation is replete with tional and trainifilg materials, legal cases disease, including lung cancer in references to inadequate prison ventila­ and articles on legal issues, general re­ nonsmokers. tion and air f1ow. 12 It would stand to ports and articles in the press. Copies of 2. The children of parents who reason that, given the nature of confine­ the bibliography are available from the smoke compared with the children of ment in a restricted environment, the ill National Prison Project at a cost of non-smoking parents have an increased effects of passive smoking are $5.00, prepaid. frequency of respiratory infections, in­ exacerbated. creased respiratory symptoms, and Any discussion of this issue would • The Sentencing Project of Washing­ slightly smaller rates of increase in lung not be complete without addressing the ton, D.C. announces the publication of function as the lung matures. priVilege to smoke and its implications. the 1987 National Directory of Felony 3. The simple separation of smokers Smoking may be the only source of Sentencing Services. The 23-page direc­ and non-smokers within the same air pleasure many inmates enjoy and it may tory lists 83 programs in 25 states that space may reduce, but does not elimi­ help reduce tensions among the prisoner offer services to defense attorneys in nate, the exposure of non-smokers to population. Depriving prisoners of this preparation of alternative sentencing environmental tobacco smoke.6 priVilege altogether would no doubt in­ plans for felony offenders. Listed pro­ Given the confinement and close crease tension and could prove to be a grams include both public defender­ quarters associated with prison life a point of contention between smokers based services and private services that substantive argument can be made that and non-smokers. Furthermore, many accept referrals on a fee basis. Copies of the effect of tobacco smoke on non­ guards and other staff members may re­ the Directory are available at the fol­ smokers violates their Eighth Amend­ sent not being able to smoke among the lowing costs: 1-4 copies, $9.00 each; S­ ment right to be free of "[unnecessary] prisoner population. IS copies, $7.50 each; 16 or more cop­ and wanton infliction of pain."? The Su­ Although there are no easy solu­ ies, $6.00 each. Order from: Directory, preme Court long ago articulated the tions to this problem, some alternatives The Sentencing Project, I 156 15th St., standard governing Eighth Amendment exist. An increased awareness of the N.W., Suite 520, Washington, D.C. violations as: "[The] evolving standards dangers of passive smoking should en­ 20005/(202) 463-8348. of decency that mark the progress of a courage classification systems which take maturing society.',a smoking into consideration; classification • Administrative Director Sharon As society has come to recognize schemes might consider smoking when Goretsky has left the Prison Project to the ill effects of passive smoking in the assigning cellmates. The privilege to take a job as administrator of a D.C. law past few years, a logical connection can smoke can be preserved while minimiz­ firm. be drawn between exposure to tobacco ing the exposure of non-smokers to to­ The Prison Project is happy to wel­ smoke in a confined area with little or bacco smoke by designating non-smoking come two new staff lawyers, Mark Lo­ no ventilation and "... confinement con­ sections in common areas such as dining pez and Jere Krakoff. Lopez, a graduate ditions that can lead to painful and tor­ halls, day rooms and by improving the of Rutgers University Law School, has tuous disease with no penological pur­ ventilation systems in prisons. worked at the ACLU of Illinois for the pose."9 The Federal Bureau of Prisons It would be unrealistic to expect past two years, having been chosen from has recognized the potential harm asso­ every prison and jail to adopt the same over sixty candidates to receive the ciated with passive smoking and has pub­ regulations or criteria when addressing Kennedy-Coleman Fellowship for minor­ lished rules establishing non-smoking this problem in light of the differences in ity attorneys. At the ACLU of Illinois, areas within the institutions under its ju­ size, logistics, and staff. These problems Lopez worked on a wide range of civil risdiction. lo The comment to the rule should not give rise to excuses for doing liberties cases, including drug testing, notes that: nothing or postponing action on this AIDS and individual rights, and First The Surgeon General of the United problem. Amendment. Krakoff has extensive litiga­ States has determined that smoking and Decisions must be made and various tion experience in prison and other civil passive inhalation of environmental to­ possibilities should be explored in devel­ bacco smoke pose a health hazard. The oping a plan that would accommodate Mark Lopez Jere Krakoff Bureau of Prisons, in establishing its the interests of both groups. The ill ef­ fects of "passive smoking" are all too obvious and demand immediate "See footnote 2, page 7. attention. II 7Gregg v. Georgia, 428 U.S. 153, 173 (1978). STrop v. Dulles, 356 U.S. 86, 101 (1958). 'Daigre v. Maggio, 719 F.2d 1310, 1312 (5th Cir. "See footnote 10 at 9615. 1983), citing Estelle v. Gamble, 429 U.S. 97, 102 12See, for example: Ramos v. Lamm, 639 F.2d 559 (1976); Rhodes v. Chapman, 452 U.S. 337, 362 (10th Clr. 1980); Toussaint v. McCarthy, 597 (1981). F.Supp. 1388 (N.D. Cal. 1984); Wright v. Rushen, ,oFederal Register, Vol. 51. No. 53, p. 9615, Sec. 642 F.2d 1129 (9th Clr. 1981); Palmigiano v. Gar­ 551.160 (1986). rahy, 443 F.Supp. 956 (D.R.1. 1977).

SUMMER 1987 13 NATIONAL PRISON PROJECT

LUNCH i Participants are '" IIIlIJII on their own ""!IIlII1l_----

'''''' If _ KreegerNORVALProfessorMORRISof Law, Univer IA~:,~ ~ Pri~ pre·re.... m, to. d" N,dooaI Projw', "'" Anni...... " ! I Celebration-I am enclosing the $35 fee. Anniversary Celebratiaij I D Please send me information for overnight hotel arrangements. 6:00 PM Cocktails (cash bar) I NAME------,------,iJ!! 7:30 PM Dinner Party I ORGANIZATION ------iifJ?J I ADDRESS JJl,TV ALVIN J. BRONSTEIN Executive Director, The National Pri I N! I Others who may be interested in attending (please include address): REMARKS: IRA GLASSER Executive Director, American Civil Li I------fil I KEYNOTE SPEECH: JOHN COLEMAN 1------iifJ?J former President, Edna McConnell C I Send to: National Prison Project, 1616 P Street N.W., Washington, D.C. 20036. CocktailS and Dinner will be held at the Hyatt Regency I Space is limited so please register by September 15. on Capitol Hill (400 NewJersey Avenue, N. w.) 1. II. .ECBUUll1E!- ll1E!-Ell1E!B rights areas. He handled Inmates of the programs, interviews with prominent organizations, and other community Allegheny County Jail v. Pierce, and other criminal justice practitioners, and up-to­ groups. significant prison cases during his more date news about funding, development, Subscriptions to VORP Network than ten years as an attorney for a Pitts­ and other issues equally pertinent to al­ News are $20 for the calendar year; bulk burgh Legal Services program. More re­ ready operating programs as well as pro­ subscriptions are available. For sample is­ cently he worked for the Lawyers' grams in the planning stages. sue or further information. contact Committee for Civil Rights Under Law, "VORP" refers to the face-to-face PACT Institute of Justice, 90 I Washing­ where he litigated, among other things, meeting conducted by a trained media­ ton Street, P.O. Box 177. Michigan City. a number of voting rights and school de­ tor between victim and criminal of­ IN 46360/(219) 872-3914. segregation cases. fender. During the meeting, which is voluntary for both parties, facts of the • The Lewisburg Prison Project. P.O. • The VORP Network News, the case are discussed, feelings talked about, Box 128, Lewisburg. PA 17837, distrib­ quarterly journal of the Victim-Offender and appropriate restitution negotiated. utes booklets which are helping pris­ Reconciliation Program, is now available While only a handful of programs were oners nationwide to solve problems for general subscriptions. Published by in operation even as recently as three within the pris~ms. A quarterly "Legal the PACT Institute of Justice of Michigan years ago, today there are VORP pro­ Bulletin" is available on request by free City, Indiana, the journal covers current grams in over 25 states, as well as subscription. Four manuals. on parole. trends in victim issues, community cor­ throughout Canada and England. These civil actions. paralegal advocacy. and ad­ rections, mediation, or restitution pro­ programs are operated by judges, proba­ ministrative detention. as well as sets of gramming. Regular features include case tion departments, private organizations. the 30 Bulletins, are distributed at a low studies, mediation issues, profiles of new police and sheriffs' departments, victim cost; send·for a brochure.

Sourcebook (1980). Traces ated mothers. health care. and the history of the prisoners' general articles and books. $5 rights movement and surveys prepaid from NPP. the state of the law on various A Primer For Jail Litiga- . ~ prison issues (many case cita­ tors is a detailed manual with tions). 24 pages, $2.50 prepaid 1 .~ practical suggestions for jail Iit­ .~. from NPP. 'I!!'J igation. It includes chapters on The National Prison Proj­ •.,,~. legal analysis. the use of ex- ect Status Report lists by pert witnesses, class actions, The National Prison state those presently under attorneys' fees, enforcement, Project JOURNAL, court order, or those which ..... discovery, defenses' proof. $20/yr. $21yr. to prisoners. have pending litigation either • remedies, and many practical involving the entire state suggestions. Relevant case cita­ prison system or major institu­ tions and correctional stan­ tions within the state. Lists dards. 1st edition, February only cases which deal with • 1984. 180 pages. paperback. overcrowding and/or the total $15 prepaid from NPP. conditions of confinement. The Jail Litigation Status (No jails except District of Report gives a state-by-state Columbia). Periodically up­ listing of cases involving jail dated. $3 prepaid from NPP. conditions in both federal and Bibliography of Women in state courts. The Report cov­ Prison Issues. A bibliography ers unpublished opinions. con­ of all the information on this sent decrees and cases in subject contained in our files. progress as well as published Includes information on abor­ decisions. The Report is the tion, behavior modification first nation-wide compilation Offender Rights Litigation: programs, lists of other bibli­ of litigation involving jails. It Historical and Future De­ ographies, Bureau of Prison will be updated regularly by velopments. A book chapter policies affecting women in the National Jail Project. 1st by Alvin J. Bronstein published prison, juvenile girls, women in Edition. published September QTY. COST in the Prisoners' Rights QTY. COST jail. the problem of incarcer- QTY.COST 1985. $15 prepaid from NJP.

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SUMMER 1987 15 The following are major develop­ Inmates of Occoquan v. Barry-This Shrader v. White--Prisoner access to ments in the Prison Project's litigation lawsuit was filed in August 1986 and tools and scrap metals was the only out­ program since December 31, 1986. Fur­ challenges conditions at the Occoquan I, standing issue in this case challenging ther details of any of the listed cases II and III facilities at Lorton Reformatory, conditions at the Virginia State Peniten­ may be obtained by writing the Project. the District of Columbia's prison in Vir­ tiary at Richrpond. In Maya settlement ginia. An order requiring a population was reached in the plaintiffs' favor, pro­ Black v. Lewis-This case, challenging cap, effective June I, was stayed by the viding for the adequate securing of these the conditions of confinement in the Ad­ judge, extending the date until at least tools and metals to reduce the possibil­ ministrative Segregation Unit at the Ari­ the end of July. A special officer has also ity of these materials being made into zona State Prison in Florence, was set­ been appointed by the judge to investi­ weapons. ~ tled with a consent decree in June 1985. gate ways of coping with the influx of In June of this year the court vacated prisoners. U.S. v. Michigan/Knop v. johnson­ the defendants' motion to dismiss and This is a statewide Michigan prison con­ found the defendants in noncompliance jerry M. v. D.C.-This action chal­ ditions case. Trial was completed in with two provisions of the stipulated lenges conditions of confinement at Knap in April 1987, and the parties are agreement. The court also extended the D.C.'s juvenile facilities. The second and awaiting the court's decision. In U.S. v. monitoring period to July 31, 1987 and a third monitor reports have been filed as Michigan the court issued a temporary compliance report was submitted by the well as the plan for reform required by order in May cutting off prisoner intake monitor at that time. the consent decree. Defendants are not into the Department of Corrections. in compliance and further litigation may The court also found the State of Michi­ Bobby M. v. Graham-This case chal­ be required. Early this year the plaintiffs gan in contempt of court with fines of lenges conditions and practices at three received payment of $94,000 in attor­ $10,000 per day if overcrowding contin­ Florida juvenile training schools. A set­ neys' fees for the work leading up to ues after November I, 1987. The court tlement was reached in April on all the the consent decree. is considering whether to make the issues and final court approval is ex­ Knop plaintiffs full parties in the U.S. v. pected during the summer. All issues Palmigiano v. DiPrete--This is the Michigan case. were settled favorably to the plaintiffs. statewide prison conditions case in There will be now be two 100-bed se­ Rhode Island which preViously resulted Washington v. Tinney/johnson v. cure facilities where there had been in a series of favorable decisions. In De­ Galley-This case challenges conditions three training schools confining a total of cember, the defendants filed a motion and allegations of brutality and use of 1200 children. asking that further population reductions force at two Maryland state prisons. The scheduled for January I, 1987 be re-ex­ NPP is in the process of settling the ma­ Cody v. Hillard-This suit challenges amined. A haaring was held May 22-23. jority of the issues in this suit. Those is­ conditions at the South Dakota State The judge reserved decision on the de­ sues which remain unsettled will most Penitentiary. On January 12th, we re­ fendants' motion and issued an interim likely go to trial the latter part of argued the overcrowding issue before order imposing a $3,000/day fine begin­ September. the Eighth Circuit sitting en bane. A ning August I, 1987 if the current popu­ compliance hearing was held on July 7­ lation cap is exceeded. Witke v. Crowl-Equal protection and lOon the issues settled in the partial conditions of confinement are the issues consent decree. Phillips v. Bryan-This is a conditions in this case filed in 1982 on behalf of the case at Nevada's maximum security women incarcerated at the North Idaho Inmates of D.C. jail v. jackson-This prison which resulted in a consent de­ Correctional Institution. In response to case challenges conditions, primarily over­ cree in 1983. A hearing was held on July objections filed by the Prison Project, crowding, at the D.C. Jail and we have 27, 1987 on plaintiffs' motions to con­ the court modified a previous order previously obtained a series of favorable tinue the court's jurisdiction and to have which adopted the monitor's report on decisions. On March I I, the court en­ defendants held in contempt for viola­ defendants' compliance with the terms tered a contempt order against the de­ tions of the settlement. of the settlement agreement. The court fendants due "to continued overcrowding found the defendants not in compliance and other issues. with the requirements for parity in in­ dustry programs. II

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